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frankie_the_yankee

robotreagan wrote:I got it!

28 days total.

August 2nd application processing
August 29th Application completed - license issued or certificate active

Outstanding! Congratulations. Glad that in some small way we were able to help.

frankie_the_yankee

robotreagan wrote:Penal Code 22.01 - Class C simple assault

For the win!

Thanks everyone! Anymore insight is welcome and I will continue to keep you all updated on the status of my application.

Looks good to me. But remember, IANAL. I think you will be OK putting sec. 22.01 Class C simple assault on your application. But if I were you I would still spend a few bucks for a lawyer's opinion. Once you send that application in, anything you wrote on it will live forever.
And again, it also seems that you are OK to buy guns, as the offense you pled out to does not appear to meet the federal definition for DV.

(In TX, it's DV if it involves a member of your household, which includes a roommate. But the federal standard for DV does not include a (non-romantically involved) roommate, as others have pointed out.)

frankie_the_yankee

robotreagan wrote:
The only way "family violence" can be called into play here is if it was a Class A assault on a member of the family/household etc.. The penal code does not associate class C assault with the family code.

1) Were you charged under Â§22.01?

2) Assuming "yes" to the above, someone (your lawyer) has to research exactly what is listed on your conviction record for this offense.

Then you will know where you stand.

frankie_the_yankee

srothstein wrote: You have just admitted to violating federal law. It is illegal for you to purchase firearms.

Did you look at the federal definition of a DV offense? To be DV, the other person has to be a family member or spouse, parent, guardian, etc. The definition does not appear to include a mere "roommate".

Now there could be case law with which I am unfamiliar. But just reading the statute (specifically, the Lautenberg Amendment) it looks like robotreagan's offense doesn't qualify.

So I still say that robotreagan needs to have a good lawyer review everything, including the exact numbered statute that he admitted to violating, and advise him as to how to proceed. And to do this before submitting his CHL application.

frankie_the_yankee

Check out this link.

http://www.txdps.state.tx.us/administra ... rt2005.pdf

This is a full listing of criminal convictions for CHL's for 2005.

Note the following:

ASSAULT CAUSES BODILY INJ DATE/FAMILY/HOUSE 13 0 0.0000%
ASSAULT CAUSES BODILY INJURY FAMILY VIOLENCE 9,718 15 0.1544%

For the first item, a total of 13 Texans were convicted in 2005, none of them being CHL's.

For the 2nd item, a total of 9718 Texans were convicted in 2005, 15 of which were CHL's.

Not sure if these were the statutes under which you were charged.

Just FYI.

frankie_the_yankee

robotreagan wrote:I just got off the phone with them this morning.
They said if it is not a "traffic" offense then I should probably put it on the application. What I am worried about is that because the citation says "family violence" and most people seem to think that is automatic domestic abuse. As defined by the Texas penal code (I read it this morning but I am not at my house so I don't have the link. I will post it later though.) Domestic Abuse stipulates that one party must be injured or have a realistic fear of violent assault.

If it was actually a domestic violence case the police officer would of had to arrest me or require me to leave the premises which neither occurred.

So I am going to send it on in with the ticket information on the application. The DPS CHL legal dept. said that it would be investigated locally and then the application process would continue.

And if for any reason it is denied I have a pretty good leg to stand on at the hearing that would surely occur. Considering Class C misdemeanor assault doesn't bar one from getting a CHL.

I would hold off a bit. A few days one way or the other won't kill you.

Find out the exact statute number under which you were convicted. Get that info to your lawyer. HAVE HIM TELL YOU WHAT TO PUT ON THE APPLICATION.

It doesn't matter what verbiage is on the ticket. If the actual statute is just "Assault", then that's what you put down on the application. (Best if you put down the statute number itself.

But ONLY after talking to your lawyer.

It's a lot easier to do it right the first time than it is to clean up a mess.

frankie_the_yankee

robotreagan wrote:Awesome guys I just found this: There is not a Texas penal code statute entitled "Assault - Family Violence." Despite what offense may have been written on the magistrate's warning or bail bond, the actual offense is for "Assault".

This is very cool! Where did you find this citation?

frankie_the_yankee

More good news for you. Go to this link on the BATFE website.

http://www.atf.gov/firearms/domestic/qa.htm

Note item# 3. It gives a definition of what makes something a crime of domestic violence.

"(3) was committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim. "

Note that a "roommate" doesn't fit into the catagories listed above, unless it is a roommate who is, "....a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian..."

So it appears to me that whatever you were convicted of in TX, it does not qualify as a DV misdemeanor as far as BATFE is concerned.

That means that as far as the feds are concerned, you can truthfully fill out the 4473 and legitimately pass the NICS check.

frankie_the_yankee

txinvestigator wrote: He was not screwed over by the police. Roomates qualify under DV, and the police are REQUIRED to take action.

Sure, but the action they take depends on how they evaluate the actual circumstances.

Maybe some cops would have responded and judged that the guy did the right thing and that no law was broken at all. Then, no ticket gets issued and robotreagan is home free.

I wasn't there, so I can't say for sure, but not EVERY call results in an arrest or citation, right?

Or maybe the drunk roommate gets arrested and robotreagan simply goes on about his business.

That could have happened, right?

And when a cop writes a citation, regardless of what they may be "REQUIRED" to do, by one person's judgement, they might do something else in their own judgement, because they may not honestly feel that the action satisfied all of the criteria to trigger the "required" DV citation.

So robotreagan might just as well have been written for simple assault.

But again, not being there myself I can't really say what was justified and what was not. It just sounds excessive to me based on the way robotreagan recounted what happened.

From what he said, I would have gotten a lawyer, somehow, plead not guilty, and beaten it.

txinvestigator wrote: If you have a problem with DV being a disqualifer, I agree.

Yeah, I do have a problem with that, for the reason I stated previously. While some DV offendors may well deserve to have their gun rights revoked, I do not think it should be automatic and I do not think a misdemeanor should result in a lifetime ban.

The people who pushed that law were not primarily concerned with reducing DV, they were primarily interested in shrinking the pool of possible gun owners over time. As the pool of gun owners is whittled away little by little (first we DQ this group, then that one, and so on) the political support for private gun ownership withers over time. When it is shrunken and weakened enough, they do like they did in the UK and simply ban them all.

They don't care if they have to wait 50 or 100 years, as long as they see us moving down the road towards the goal of "no guns for anyone".

The DV law was just one small step in that direction.

frankie_the_yankee

robotreagan wrote: My lawyer told me to put in the application while he tries to figure it.

IANAL, but I wouldn't do that if it were me. I'd want him to figure it out FIRST, then I would put the application in.

If there is some way to squash it or get it off your record, you want to do that before you list it on your application.

Even if it turns out to be too minor an offense to get me DQ'd, I would still want to know that before putting the application in.

If it's money he wants/needs, give him some. If not, try another lawyer. Once your application is in, if there is a problem with it, it is a lot harder to resolve than if the problem were taken care of beforehand.

This is infuriating that because of my drunk friend it is keeping me from getting my CHL. [/quote]

Actually, the way you describe it, I can't understand why you paid the ticket in the first place. It sounds like a "not guilty" plea to me.

The $180 might have been less than what a lawyer would have cost at the time, but look at what you're going through now.

frankie_the_yankee

robotreagan wrote:Well I can purchase guns I have done so twice in the last few months.
A brand new .45 XD compact was one of them. This is of course after the ticket.

So this is confusing to me alot. I do have a lawyer who is very competent and told me that he could get it off my record.

Another thing I don't understand is that it doesn't show up in any federal background checks or DPS background checks... The only place it is, is at the PD who issued the citation.

That sounds pretty weird. Have your lawyer figure out what is going on before you put your application in.

frankie_the_yankee

I think they screwed you royally by hanging the "family violence" charge on you instead of just simple assault. They might have been pretending to be sympathetic, but they burned you badly.

You should have gotten a lawyer who may have been able to bargain the charge down to simple assault.

The problem is that any kind of domestic violence misdemeanor disqualifies you forever from being able to buy a gun (from a dealer), in TX or anywhere else, courtesy of a federal law passed during the Klinton administration. It was one of those deals where the gun banners PRETENDED to be trying to protect women from domestic violence, while what they were really up to was to DQ as many people as possible from ever owning guns.

I think that one of the requirements for getting a TX CHL is that you not have any domestic violence misdemeanors (or felonies of course) on your record. Your problem is that you do. And no, they don't "read the police report and make a judgement on character". That would make it into a "may issue" report, where they have discretion to approve or deny. (You don't think the rules would allow them to give people a "break" while not allowing them to deny someone they don't "like", do you?) The CHL is "shall issue". If you meet the requirements, you get it. If you don't, you don't.

It doesn't matter how sympathetic the arresting officer claims to be. (I say "claims" because his department, and/or the local prosecutor, burned you, and they knew what they were doing. Cops are INTENSELY aware of the consequences of any sort of DV conviction, since they do a fair amount of DV themselves, and if they lose their gun rights they have to get a new line of work. They are well aware of how to game the system if necessary. And they took you to slaughter like a baby lamb.)

It doesn't matter if he goes to bat for you himself. And an appeal is unlikely to reverse the denial you almost certainly have coming.

About the only thing you can hope for is to get a pardon from the governor someday.

I sincerely hope that I am mistaken about some aspect of the above, and would welcome someone with more knowledge than I pointing it out. I hope there is some way around this for you.

IANAL, but here's something else I just thought of. Is there any procedure in TX whereby the prosecutor can petition the court to vacate the conviction? Maybe one of the lawyers on the board can answer that. If so, you might be able to get them to do it, in return for you pleading guilty to simple assault. Then your whole life wouldn't be ruined.

Just a thought.

But I doubt it.

BTW, you need a lawyer. Don't try to do anything without seeing one first.

Remember, when you're in a hole, the first thing to do is STOP DIGGING.

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