Talked to the office of the Chairman of the Licensing and

[HGWC]

That said, you're better off with an attorney because you need to do some things that will help you if/when DPS appeals. I'm setting up the first round of suits on this issue right now.
Chas.

Since I am nearby, I would love to hear the outcome or in some way get involved. I'm only on day 70, but day 90 is around the corner and I really don't think anything real is going to happen (for me) before then. I'd at least like to be a fly on the wall during the hearing(s).

They've already violated your constitutional rights by not complying with 411.176 (not completing the background check in 60 days) and 411.177b (not issuing or denying the license, and not sending you an explanation), and by continuing to prevent you from possessing a handgun in public under the penal code. By not issuing the license and continuing to enforce the penal code, they're exceeding the power of the legislature to regulate your constitutional right to keep and bear arms. They're violating your constitutional rights. Why wait?

[HGWC]

I say we forget requesting anything from the DPS. They're violating our rights, and rather than requesting a hearing from them, we need to sue in state court for violation of our constitutional rights.

HG, every time someone request a hearing they have to pay for the lawyer to go to the hearing costing them (us) more money, and I don't like it when my money is wasted so I'm more than likely going to talk to my govenor about the frivilous spending of the DPS and how if something isn't done about it I'm not voting for him/her next time around. If we were to sue it would more than likely be a class action suit so only one lawyer needed instead of one for every time a hearing is requested

What do you mean they have to go to the hearing? What hearing? The hearing they're not going to schedule any more than they're going to comply with these other laws and issue the license? They don't have to comply with 411.180 any more than they have to comply with 411.176 or 411.177.

[dicion]

Correct, so anyone over 90 days from the receipt of their complete application, who has or has not received a letter, which I think is about Everyone, needs to request a hearing

You're talking about 411.180 now. Here, DPS shall send a letter notifying of any denial, ie including, you would think, any implicit denial. In this section, it implies that people that receive the notification of denial can request a hearing. They're already not complying with this section since they're not sending letters of denials after 90 days. What makes you think they'll comply with it now, just because you requested that they comply?

Isn't that the issue already? We've requested they comply with these sections, but they have refused to do so?

Since you've been denied by law, I'm pretty sure a Judge would agree that the letter is not necessary. Im sure DPS will argue it, but, once again, black and white in the statutes. IMO
And if they start quoting statutes stating that they have to send a letter, you can quote them right back with regard to the dates and times. It's a double edged sword. If they claim the statutes require them to send you something, then they are also saying the statutes requiring them to send you your LICENSE are in full effect.

Likewise, if they say that they don't have to send you something in the timeframe specified in the statutes, that means they don't have to send you a denial notice as required either, for it to be denied.

They either can follow ALL of GC 411.177-180 or none of it. They can't pick and choose what they want to follow

It'll be another nail in the coffin if they refuse to do so.

Have the letter notarized before you send it to them requesting a hearing. Also send it certified, delivery confirmation, and signature required.
If they do not file the hearing as required in the 30 day time period, then you break out the lawsuit and go full bore :)

[HGWC]

Since you've been denied by law, I'm pretty sure a Judge would agree that the letter is not necessary. Im sure DPS will argue it, but, once again, black and white in the statutes. IMO
And if they start quoting statutes stating that they have to send a letter, you can quote them right back with regard to the dates and times. It's a double edged sword. If they claim the statutes require them to send you something, then they are also saying the statutes requiring them to send you your LICENSE are in full effect.

Likewise, if they say that they don't have to send you something in the timeframe specified in the statutes, that means they don't have to send you a denial notice as required either, for it to be denied.

They either can follow ALL of GC 411.177-180 or none of it. They can't pick and choose what they want to follow

It'll be another nail in the coffin if they refuse to do so.

Have the letter notarized before you send it to them requesting a hearing. Also send it certified, delivery confirmation, and signature required.
If they do not file the hearing as required in the 30 day time period, then you break out the lawsuit and go full bore :)

They aren't following any of it. I just don't see the point of requesting, one more time, that they comply with the law. The only recourse you have is in the courts. IANAL, but unless the DPS requests the hearing with the JP, does the JP even have jurisdiction? I would think our only real recourse is state court for violation of our constitutional rights. This isn't just a petty grievance over violation of government code statutes.

[infoman]

Ok, so you still are not "officially" denied, until you are officially denied. I garauntee, you have no case until you receive a letter from DPS stating that you are denied. If you are from Harris County, everyone already knows about that, including the Governer. At the current time, only comissioned officers can work on background checks, and that's congress's decision. the statues are open to interpretation and they are not written in black and white, more like a lot of gray. You can request a hearing to vent because you don't like the processing times, but you can't request a hearing to appeal a denial, when you haven't been denied. You're denied when they decide you don't meet the requirements to have a license and they send you coorispondence from their legal department stating that you've been denied. I'm not sure if anyone knows exactly what a denial is. You can try the hearing, but I promise you that you won't get very far. Those hearings are only for people who have "officially" been denied and are appealing the decision, ussually for criminal background reasons, etc.. Everyone, the governer, congress, dps, joe blow, even the news media know they are in a backlog and are behind. What do you expect when you double the amount of applications in a few months? The best option is to put pressure on congress to boost manpower at dps and to have civilian employees do the background checks, that's the route to go, you're setting yourself up for a big let down with a "denial" hearing.

[Shorts]

I would think it would only be good for the applicant if they had the time and money to request a hearing with a judge but this also could take months so I guess we just wait.

The hearing costs you nothing because 1) DPS has to file it in the JP court in your precinct of residence; 2) it's JP court so you won't need an attorney; and 3) they have to request a hearing within 30 days of your letter requesting it.

That said, you're better off with an attorney because you need to do some things that will help you if/when DPS appeals. I'm setting up the first round of suits on this issue right now.

Chas.

Excellent. I've had you and suits in mind and have been waiting to hear more. Keep us up to speed (like you always do!)

[Shorts]

I say we forget requesting anything from the DPS. They're violating our rights, and rather than requesting a hearing from them, we need to sue in state court for violation of our constitutional rights.

HG, every time someone request a hearing they have to pay for the lawyer to go to the hearing costing them (us) more money, and I don't like it when my money is wasted so I'm more than likely going to talk to my govenor about the frivilous spending of the DPS and how if something isn't done about it I'm not voting for him/her next time around. If we were to sue it would more than likely be a class action suit so only one lawyer needed instead of one for every time a hearing is requested

They charge us enough for a CHL fee, they have money.

And telling folks about the trouble doesn't seem to get anyone off their thumbs. Folks have been talking long enough about the slow time line, it's time for action.

As much as I hate frivolous lawsuits too, I don't consider this stall of right to bear arms a frivolous cause.


And offhand related to DPSs inadequacies, I submited via online form a change of address to DPS for my DL on June 5th. They specifically state on the DPS site 15-20 days the new one will be mailed. I still do not have my new DL in hand as of today. 15-20 days huh?


I think DPS needs a good rattle up.

[FlynJay]

At the current time, only comissioned officers can work on background checks, and that's congress's decision.

The local background is not even required to issue a license. They are done at "the sole discretion of the department". DPS needs to eliminate the local background checks and rely solely on the electronic database.

GC 411.176 (b) The director's designee as needed shall conduct an additional
criminal history record check of the applicant and an investigation of
the applicant's local official records to verify the accuracy of the application
materials. The scope of the record check and the investigation
are at the sole discretion of the department, except that the director's
designee shall complete the record check and investigation not later
than the 60th day after the date the department receives the application
materials.

[Shorts]

My understanding of how it all works is that after DPS receives your app in Austin, it goes to a Director's designee. That person does the local check as well as sending the FBI prints for the Federal check and should take no more than 60 days for that step. From there it goes back to Austin with a recommendation to approve or deny. From there Austin can hold the app and continue their "other" checks (which I suppose are the financial poking and prodding/debts/taxes/child support/etc) and may take time up to 180 from the time they received your app.


Am I waaayy off base? Just read the statutes for the info so I'm probably not understanding all of it.

[Charles L. Cotton]

Ok, so you still are not "officially" denied, until you are officially denied. I garauntee, you have no case until you receive a letter from DPS stating that you are denied. If you are from Harris County, everyone already knows about that, including the Governer. At the current time, only comissioned officers can work on background checks, and that's congress's decision. the statues are open to interpretation and they are not written in black and white, more like a lot of gray. You can request a hearing to vent because you don't like the processing times, but you can't request a hearing to appeal a denial, when you haven't been denied. You're denied when they decide you don't meet the requirements to have a license and they send you coorispondence from their legal department stating that you've been denied. I'm not sure if anyone knows exactly what a denial is. You can try the hearing, but I promise you that you won't get very far. Those hearings are only for people who have "officially" been denied and are appealing the decision, ussually for criminal background reasons, etc.. Everyone, the governer, congress, dps, joe blow, even the news media know they are in a backlog and are behind. What do you expect when you double the amount of applications in a few months? The best option is to put pressure on congress to boost manpower at dps and to have civilian employees do the background checks, that's the route to go, you're setting yourself up for a big let down with a "denial" hearing.

What is the basis of your opinion? Tex. Gov't Code §411.177(c) was included in the code specifically to provide a remedy for applicants, if the DPS did not comply with the statutory time limits. The statutory provision couldn't be more clear. Here is the specific language:

Sec. 411.177.ISSUANCE OR DENIAL OF LICENSE

(a)The department shall issue a license to carry a concealed handgun to an applicant if the applicant meets all the eligibility requirements
and submits all the application materials. The department may issue a license to carry handguns only of the categories indicated
on the applicant ’s certificate of proficiency issued under Section 411.189. The department shall administer the licensing procedures
in good faith so that any applicant who meets all the eligibility requirements and submits all the application materials shall
receive a license. The department may not deny an application on the basis of a capricious or arbitrary decision by the department.

(b) The department shall, not later than the 60th day after the date of the receipt by the director ’s designee of the completed
application materials:

• (1)issue the license;
  (2) notify the applicant in writing that the application was denied:
  
  • (A) on the grounds that the applicant failed to qualify under the criteria listed in Section 411.172;
    (B) based on the affidavit of the director ’s designee submitted to the department under Section 411.176(b); or
    (C) based on the affidavit of the qualified handgun instructor submitted to the department under Section 411.189(c); or

(3) notify the applicant in writing that the department is unable to make a determination regarding the issuance
or denial of a license to the applicant within the 60-day period prescribed by this subsection and include in that notification an
explanation of the reason for the inability and an estimation of the amount of time the department will need to make the determination.[/list

(c) Failure of the department to issue or deny a license for a period of more than 30 days after the department is required to
act under Subsection (b) constitutes denial.

[Charles L. Cotton]

Correct, so anyone over 90 days from the receipt of their complete application, who has or has not received a letter, which I think is about Everyone, needs to request a hearing

You're talking about 411.180 now. Here, DPS shall send a letter notifying of any denial, ie including, you would think, any implicit denial. In this section, it implies that people that receive the notification of denial can request a hearing. They're already not complying with this section since they're not sending letters of denials after 90 days. What makes you think they'll comply with it now, just because you requested that they comply?

Isn't that the issue already? We've requested they comply with these sections, but they have refused to do so?

411.177(c) is a safety net to protect applicants when DPS does not issue, deny, or send an explanation letter in the time permitted by statute. Of course they aren't going to send a denial letter at the end of the 90-120 day period; that's precisely whey 411.177(c) was included in the statute. If DPS doesn't file the appropriate pleading in J.P. court in the time allotted by statute, then there are other remedies.

Chas.

[Charles L. Cotton]

one quick thing.. you can't have a denial hearing, unless you've already been officially denied. that means they send you a denial letter. they don't have "hearings" for people who are just unhappy with processing times or background checks taking long. You won't get a denial hearing without first being denied.

You've been officially denied, per the law, if you're outside the timelines listed above. If DPS isn't allowing hearings, they will open themselves up to further lawsuits, and will end up spending more of our tax money on defending their indefensible behavior. Since it's our money, and not theirs, I wonder if, like most govt orgs, they just don't care.

In fact, by law, everyone on this forum who is past 90 days has been denied, and only has 30 days to file a petition for a hearing. If you make it to day 120 without petitioning, by law, you have officially accepted your denial and lost your chance at a hearing.

The 30 day window to "appeal" a denial applies only when you have received written notice from DPS. The denial by operation of law that occurs when §411.172(c) applies, i.e. DPS is is more than 30 days late, does not fall within this 30 day appellate timetable. Receipt of the DPS notice is the trigger for the 30 day appellat period.

Chas.

Sec. 411.180.NOTIFICATION OF DENIAL, REVOCATION, OR
SUSPENSION OF LICENSE; REVIEW
(a) The department shall give written notice to each applicant for a handgun license of any
denial, revocation, or suspension of that license. Not later than the 30th day after the notice is received by the applicant,
according to the records of the department, the applicant or license holder may request a hearing on the denial, revocation, or
suspension. The applicant must make a written request for a hearing addressed to the department at its Austin address. The request for
hearing must reach the department in Austin prior to the 30th day after the date of receipt of the written notice. On receipt of a
request for hearing from a license holder or applicant, the department shall promptly schedule a hearing in the appropriate
justice court in the county of residence of the applicant or license holder. The justice court shall conduct a hearing to review the
denial, revocation, or suspension of the license. In a proceeding under this section, a justice of the peace shall act as an
administrative hearing officer. A hearing under this section is not subject to Chapter 2001 (Administrative Procedure Act). A
district attorney or county attorney, the attorney general, or a designated member of the department may represent the department.

[Charles L. Cotton]

I say we forget requesting anything from the DPS. They're violating our rights, and rather than requesting a hearing from them, we need to sue in state court for violation of our constitutional rights.

Hire an attorney and do just that. Long before your case is dismissed by the court, I will have successfully represented thousands of CHL applicants and forced DPS to change their procedures.

Chas.

[Charles L. Cotton]

I say we forget requesting anything from the DPS. They're violating our rights, and rather than requesting a hearing from them, we need to sue in state court for violation of our constitutional rights.

HG, every time someone request a hearing they have to pay for the lawyer to go to the hearing costing them (us) more money, and I don't like it when my money is wasted so I'm more than likely going to talk to my govenor about the frivilous spending of the DPS and how if something isn't done about it I'm not voting for him/her next time around. If we were to sue it would more than likely be a class action suit so only one lawyer needed instead of one for every time a hearing is requested

A class action would never be certified on these facts. The nature of the appellate process for "denial" of a CHL requires the filing of individual suits.

Chas.

[shoeless]

My thinking may be wrong on this, but the Texas Attorney General is also responsible for "enforcement" of the state civil and criminal statutes. It seems to me that if enough individuals called, emailed and wrote the AG's office regarding the violations of timeliness and notification of the DPS offices that are issuing state licenses, they might do a formal inquiry.

I understand it appears that it would be a conflict of interest for the AG to do so, but it's not the first time they would have looked at another state agency or division and brought it to the attention of the department, media and the elected officials. A little heat can go a long way.

With all that said, I know I'm impatient. I think an organization, private or government, should deliver a service or product when promised. At the least they should notify you of any delays or changes. At the same time, we're very fortunate to live in a state that interprets the constitution in a way to protect the 2nd Amendment freedoms for all of us. Although the process is slow and imperfect, a great deal of that has to do with the incredible numbers of Texans wanting to exercise this right. It's not all the fault of the DPS. They may be inefficient (all government agencies are), they are overwhelmed too. Keep that in mind before we start the great witch hunt and class action threats.

My $0.01 - my opinion is half price because I'm on vacation as of 5:00 today...