HB435 Emergency Services Personnel

[ELB]

Governor signed it today.

[TexasJohnBoy]

Working on my Amateur license now, planning on joining cert in January, looking at being a part of ARES or RACES after I get my license, possibly SKYWARN too.

VFD may be a good idea in place of CERT, not sure if my local dept needs any more resources.

These are all things I had played with doing in the past, and had started to look at, and this being signed just makes a cherry on top. I should have gotten a degree in Emergency Management.

[ninjabread]

I'm going to renew my CPR cert before 9/1 to jump on this bandwagon.

[TreyHouston]

WELL! I KNOW VERY FEW PEOPLE IN HOUSTON THAT WOULD NOT QUALIFY FOR THIS NOW!!!!!!!!

GOD bless TEXAS and the fine volunteers I have been working with!

[RoyGBiv]

I'm looking forward to shopping at _________ again without having to disarm.

Hopefully there won't be anyone testing the 30.07 defense to prosecution any time soon.!!

[TexasJohnBoy]

WELL! I KNOW VERY FEW PEOPLE IN HOUSTON THAT WOULD NOT QUALIFY FOR THIS NOW!!!!!!!!

GOD bless TEXAS and the fine volunteers I have been working with!

[CZp10]

I am not aware of anyone, ever, being prosecuted for a 30.06 or 30.07 violation that left the premises when asked. Therefore, it would almost make this new, very vaguely written, law moot. Don’t get me wrong, anything that reduces the ridiculousness of 30.06 has my vote, but clearly anyone can claim that they would volunteer to help in an emergency.

I don’t really see how HB435 really changes anything. You still have to leave if asked, and no one seems to have ever been prosecuted for walking past a sign, so what is different now? Seems like there is a “defense” to prosecution that any good DA would probably attack since the law was poorly written if they wanted to do so. Other than making people who carry past a 30.06 sign feel better, I honestly don’t see what has changed. What am I missing?

[ScottDLS]

I am not aware of anyone, ever, being prosecuted for a 30.06 or 30.07 violation that left the premises when asked. Therefore, it would almost make this new, very vaguely written, law moot. Don’t get me wrong, anything that reduces the ridiculousness of 30.06 has my vote, but clearly anyone can claim that they would volunteer to help in an emergency.

I don’t really see how HB435 really changes anything. You still have to leave if asked, and no one seems to have ever been prosecuted for walking past a sign, so what is different now? Seems like there is a “defense” to prosecution that any good DA would probably attack since the law was poorly written if they wanted to do so. Other than making people who carry past a 30.06 sign feel better, I honestly don’t see what has changed. What am I missing?

Technically you don't have to leave if the reason for asking you to leave is that you're carrying. As a practical matter, the person in charge of the property could just make up another reason. With HB435 if you are truly an emergency volunteer, you can legally carry past almost all 30.06 signs except where there are additional 46.035 rules (churches, amusement parks, hospitals). Again as you suggested, if you conceal and carry past a 30.06 sign you are at a very low risk of detection and prosecution, and if you leave when asked the penalty is at most a $200 fine. But it is illegal. If you are an emergency volunteer, it is not. This may be the closest we ever get to repeal of 30.06/7.

As far as a DEFENSE. All PC 46.15 non-applicability reasons allowing carrying are a DEFENSE TO PROSECUTION. Yes that includes cops, LTC's, etc. So if a DA wants to attack a 30.06 defense, they are just as likely to attack the defense for carrying by Peace Officers and LTC's...

[CZp10]

Technically you don't have to leave if the reason for asking you to leave is that you're carrying. As a practical matter, the person in charge of the property could just make up another reason. With HB435 if you are truly an emergency volunteer, you can legally carry past almost all 30.06 signs except where there are additional 46.035 rules (churches, amusement parks, hospitals). Again as you suggested, if you conceal and carry past a 30.06 sign you are at a very low risk of detection and prosecution, and if you leave when asked the penalty is at most a $200 fine. But it is illegal. If you are an emergency volunteer, it is not. This may be the closest we ever get to repeal of 30.06/7.

As far as a DEFENSE. All PC 46.15 non-applicability reasons allowing carrying are a DEFENSE TO PROSECUTION. Yes that includes cops, LTC's, etc. So if a DA wants to attack a 30.06 defense, they are just as likely to attack the defense for carrying by Peace Officers and LTC's...

Thank you very much for your detailed response. Although I disagree with your assumptions, I very much appreciate the debate.
Let me take the last one first, I did not mean to attack the “defense to prosecution” in general. The specific wording of this part of HB435 is so ridiculously vague that anyone can challenge it in court and it will almost certainly fail. Any DA can go after the meaning of the new law because most would agree it should mean that you have a defense to prosecution if you carry past a sign while actively engaged in helping during an emergency. Any other reading of the law essentially means HB435 completely negates 30.06 and 30.07 signs as well as ignores private property rights. I can’t see how that will stand up to a court challenge.

Imagine a simple example. A person openly carries, or poorly concealed their carry, to a child’s birthday party at one of the many small businesses that cater to such events. That small, simple, family oriented business happens to have 30.06/30.07 signs posted. The person carrying is asked to leave, and they refuse stating HB435 and their perceived volunteer emergency status. The police will be called and arrest that person, I don’t see a police officer allowing an armed citizen to make a scene in front of small children in a private business. I realize this assumes the person carrying is a bit of an obstinate jerk, but there are plenty of those people out there who will read too much into the new law.

If the DA happens to be left leaning, and wants to make a name for themselves, they can see an easy opportunity to prosecute that person and show that HB435 is not enforceable as written. Your, and other people’s, assumption that there is some truly, or really, or definitely definition of an emergency volunteer is based on your opinion, not law. There is nothing in the law that in any way properly defines who falls under HB435. Anyone can claim to fall under the new HB435 wording, to say that they can’t ignores the law as written.

I would also like to point out that a Class C misdemeanor conviction on your record for illegal trespass with a loaded firearm on your record is serious, and the $200 fine is completely meaningless. Any employer, or anyone else doing a background check, can see that conviction, and for legal defense purposes can easily reject you because of it. In my example, the person who refused to leave immediately when asked can be charged with a Class A misdemeanor, and a motivated DA who as seen as protecting the innocent children and private property owner from the big bad gun carrying person will most likely pursue that regardless of HB435. The new law simply gives you a possible defense to use, it does not exempt you from prosecution.

Are the LTC instructors here going to officially tell people in their classes they can ignore 30.06 and 30.07 signs if they perceive themselves to be some sort of emergency volunteer? If they are not, then they are making my point for me.

[RoyGBiv]

I hope nobody is so tone-deaf that they open carry past a 30.07 sign without an active emergency at that location.

I've been operating under the assumption that "defense to prosecution" is well defined in TX case law (might be wrong here, since I am not a lawyer) and the the vagueness to be concerned with is in the definition of VESP...

Specifically, the part I've underlined below...

(18) "Volunteer emergency services personnel"
includes a volunteer firefighter, an emergency medical services
volunteer as defined by Section 773.003, Health and Safety Code,
and any individual who, as a volunteer, provides services for the
benefit of the general public during emergency situations.

Does "any individual" refer only to people who are part of a formal organization of volunteers? Or should the term "any individual" be taken literally to mean any person that decides they are willing to be a volunteer in an emergency, even though they do not belong to any formal organization and have never in the past volunteered for anything, ever.?

[CZp10]

I hope nobody is so tone-deaf that they open carry past a 30.07 sign without an active emergency at that location.
I've been operating under the assumption that "defense to prosecution" is well defined in TX case law (might be wrong here, since I am not a lawyer) and the the vagueness to be concerned with is in the definition of VESP...
Does "any individual" refer only to people who are part of a formal organization of volunteers? Or should the term "any individual" be taken literally to mean any person that decides they are willing to be a volunteer in an emergency, even though they do not belong to any formal organization and have never in the past volunteered for anything, ever.?

I really hope that people are not tone deaf as well, but I would guess there will be someone who does something like that to make it worse for the rest of us.

You question about "any individual" is unanswerable, and that is the basic problem. The law is how the law is written, just take the basic definition of the words as written and anyone can claim to be under the protection of HB435. That is the problem, it is way too vague.

The DPS went out of their way to write “Authorizes volunteer emergency services personnel to carry a handgun while engaged in providing emergency services if that emergency service person is licensed to carry” in their summary of HB435. That is the part about hospitals, but it is interesting they included that, as if to try to emphasize the “engaged in providing” instead of mentioning anything about 30.06/30.07 signs in the new law.

[parabelum]

I think it would help your defense greatly if you are actually in a volunteer emergency service (VFD, CERT..), but as it is written just about anyone would fall under that definition.

This bill is a great victory for 2A in TX. Let's just hope we don't have Mr. CPR card walking into 06/07 location with his rig trying to make his case...

[ScottDLS]

Technically you don't have to leave if the reason for asking you to leave is that you're carrying. As a practical matter, the person in charge of the property could just make up another reason. With HB435 if you are truly an emergency volunteer, you can legally carry past almost all 30.06 signs except where there are additional 46.035 rules (churches, amusement parks, hospitals). Again as you suggested, if you conceal and carry past a 30.06 sign you are at a very low risk of detection and prosecution, and if you leave when asked the penalty is at most a $200 fine. But it is illegal. If you are an emergency volunteer, it is not. This may be the closest we ever get to repeal of 30.06/7.

As far as a DEFENSE. All PC 46.15 non-applicability reasons allowing carrying are a DEFENSE TO PROSECUTION. Yes that includes cops, LTC's, etc. So if a DA wants to attack a 30.06 defense, they are just as likely to attack the defense for carrying by Peace Officers and LTC's...

Thank you very much for your detailed response. Although I disagree with your assumptions, I very much appreciate the debate.
Let me take the last one first, I did not mean to attack the “defense to prosecution” in general. The specific wording of this part of HB435 is so ridiculously vague that anyone can challenge it in court and it will almost certainly fail. Any DA can go after the meaning of the new law because most would agree it should mean that you have a defense to prosecution if you carry past a sign while actively engaged in helping during an emergency. Any other reading of the law essentially means HB435 completely negates 30.06 and 30.07 signs as well as ignores private property rights. I can’t see how that will stand up to a court challenge.

Imagine a simple example. A person openly carries, or poorly concealed their carry, to a child’s birthday party at one of the many small businesses that cater to such events. That small, simple, family oriented business happens to have 30.06/30.07 signs posted. The person carrying is asked to leave, and they refuse stating HB435 and their perceived volunteer emergency status. The police will be called and arrest that person, I don’t see a police officer allowing an armed citizen to make a scene in front of small children in a private business. I realize this assumes the person carrying is a bit of an obstinate jerk, but there are plenty of those people out there who will read too much into the new law.

If the DA happens to be left leaning, and wants to make a name for themselves, they can see an easy opportunity to prosecute that person and show that HB435 is not enforceable as written. Your, and other people’s, assumption that there is some truly, or really, or definitely definition of an emergency volunteer is based on your opinion, not law. There is nothing in the law that in any way properly defines who falls under HB435. Anyone can claim to fall under the new HB435 wording, to say that they can’t ignores the law as written.

I would also like to point out that a Class C misdemeanor conviction on your record for illegal trespass with a loaded firearm on your record is serious, and the $200 fine is completely meaningless. Any employer, or anyone else doing a background check, can see that conviction, and for legal defense purposes can easily reject you because of it. In my example, the person who refused to leave immediately when asked can be charged with a Class A misdemeanor, and a motivated DA who as seen as protecting the innocent children and private property owner from the big bad gun carrying person will most likely pursue that regardless of HB435. The new law simply gives you a possible defense to use, it does not exempt you from prosecution.

Are the LTC instructors here going to officially tell people in their classes they can ignore 30.06 and 30.07 signs if they perceive themselves to be some sort of emergency volunteer? If they are not, then they are making my point for me.

HB435 provides a DEFENSE to 30.06/7, just like LTC and Peace Officers have a defense to 46.02 for carrying. All that is required is for you to assert that defense (at trial, IF there is one), and then the prosecution must refute it beyond a reasonable doubt. DA's and prosecutors shouldn't 'make' law. The legislature arleady did. Someone's 'opinion' that the law is vague doesn't make it inoperable. Since 30.06/7 is a crime, the burden is on the State to refute the Defense provided in HB435 to a very high standard. HB435 essentially DOES make 30.06/7 moot if one meets the criteria of Emergency Volunteer.

Let's take your example of a child's birthday party. A Detective off duty takes his 4 year old to the party and is armed. There is a valid 30.06/7 sign on the business and employee notices him carrying and tells him to leave. He shows his badge and says, NO I am on call. Aha cops have an EXCEPTION to 30.06/7, not just a Defense. But what about unlawful carry of a weapon. Being a Peace Officer is only a DEFENSE. So since the prosecutor is mad that the cop didn't leave when asked, is he going to take it to trial to try to prove 46.15 vague. Oh yeah and what happened to private property rights in Texas....? They don't apply if you're a cop, or emergency services volunteer, or employee in the parking lot, or going to/from your car...

Speeding is a class C misdemeanor, so if you're applying to employers that are touchy about that type of thing, you may want to drive very carefully and make sure you don't water your grass on the wrong day in Flower Mound... Short of being a convicted felon, if you have a marketable, in demand. skill any employer that will screen you for a class C is probably the type you don't want to work for.

My opinion of 30.06/7 on publicly open businesses is that it is an unnecessary imposition by the state on a civil matter, but it is the law. But so is HB435 (today!). So if a sign is (legally) defective, or I am truly an ESV, I will blithely ignore it and conceal and carry. The risk is that I am WRONGLY convicted of a class C. And I will request a jury trial and appeal in the unlikely event that it happens.

[CZp10]

My opinion of 30.06/7 on publicly open businesses is that it is an unnecessary imposition by the state on a civil matter, but it is the law. But so is HB435 (today!). So if a sign is (legally) defective, or I am truly an ESV, I will blithely ignore it and conceal and carry. The risk is that I am WRONGLY convicted of a class C. And I will request a jury trial and appeal in the unlikely event that it happens.

Can’t agree with you more.
I can’t image any rational carry person refusing to leave when asked, and I would hope that a LEO would not arrest someone who immediately left. Therefore, it seems 30.06/30.07 wouldn’t result in an arrest in almost every normal circumstance. So, to me at least, it does seem that HB435 gives a defense to prosecution to a law that has never been prosecuted in the first place. I have always thought the 30.06/30.07 penalty should be a fine, like watering your lawn on the wrong day, not being subject to a possible criminal conviction.

I see a lot of debate about who really qualifies for emergency volunteer. Many will point out you have to “really” be one, not just have a cpr certificate. I just have to question where, exactly, in the law do they see the distinction. The law states anyone who provides services during emergencies. Any individual means any individual, services means almost anything. The simple English definition of the words used in the law means basically anyone falls under HB435 protection. But if people leave when asked I am not sure this will make any difference in the real world, a defense to prosecution to something never prosecuted seems somewhat moot to me.

[ScottDLS]

My opinion of 30.06/7 on publicly open businesses is that it is an unnecessary imposition by the state on a civil matter, but it is the law. But so is HB435 (today!). So if a sign is (legally) defective, or I am truly an ESV, I will blithely ignore it and conceal and carry. The risk is that I am WRONGLY convicted of a class C. And I will request a jury trial and appeal in the unlikely event that it happens.

Can’t agree with you more.
I can’t image any rational carry person refusing to leave when asked, and I would hope that a LEO would not arrest someone who immediately left. Therefore, it seems 30.06/30.07 wouldn’t result in an arrest in almost every normal circumstance. So, to me at least, it does seem that HB435 gives a defense to prosecution to a law that has never been prosecuted in the first place. I have always thought the 30.06/30.07 penalty should be a fine, like watering your lawn on the wrong day, not being subject to a possible criminal conviction.

I see a lot of debate about who really qualifies for emergency volunteer. Many will point out you have to “really” be one, not just have a cpr certificate. I just have to question where, exactly, in the law do they see the distinction. The law states anyone who provides services during emergencies. Any individual means any individual, services means almost anything. The simple English definition of the words used in the law means basically anyone falls under HB435 protection. But if people leave when asked I am not sure this will make any difference in the real world, a defense to prosecution to something never prosecuted seems somewhat moot to me.

Yep. You couldn't have said it better. For peace of mind, if I were to carry past a valid 30.06/7 sign, I would make sure that I fell in one of the exceptions or defenses to the best of my knowledge. Depending on how you read the law, it seems very easy. I'm considering joining the State Guard or getting my HAM license to work with FEMA or other agencies as an emergency communications volunteer.

I wonder if Charles Cotton is working as a volunteer in Houston area since he's from there. I hope he's doing OK. I saw another thread where someone was asking about him.