My understanding is that it is quite uncommon to be arrested for a class C misdemeanor where the penalty cannot include jail time anyway. It seems that the officer would cite you for the violation of 30.06, then you could provide your defense (to prosecution), if any, at your trial in JP or municipal court if you felt the ticket was unjust.oljames3 wrote: ↑Wed Apr 07, 2021 4:40 pm ...
Even so, the TPC says it is a "defense to prosecution" which does not apply to the arrest, but only to the defense. Even if you are notified and leave, you can still be arrested and your attorney can argue "defense to prosecution."
Texas Penal Code 2.03 https://statutes.capitol.texas.gov/docs/PE/htm/PE.2.htm
Texas lawyers discuss the meaning of "defense to prosecution." https://www.avvo.com/legal-answers/what ... 18567.htmlSec. 2.03. DEFENSE. (a) A defense to prosecution for an offense in this code is so labeled by the phrase: "It is a defense to prosecution . . . ."
(b) The prosecuting attorney is not required to negate the existence of a defense in the accusation charging commission of the offense.
(c) The issue of the existence of a defense is not submitted to the jury unless evidence is admitted supporting the defense.
(d) If the issue of the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted.
(e) A ground of defense in a penal law that is not plainly labeled in accordance with this chapter has the procedural and evidentiary consequences of a defense.
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While we're on the concept of a defense to prosecution, it should be noted that the 46.15 inapplicability to 46.02 has also been ruled to be a 'defense to prosecution' under 46.02, not 'an exception to the application' of 46.02.
(Apparently this ruling is due to the fact that 46.15 does not say specifically "it is an exception to the application of....", so it was ruled to be a defense, not an exception. Prior to 1997, CHL and even being a peace officer was specifically only a 'defense', I have my old CHL-16 from 1995 to show that).
And even an 'exception' isn't a prohibition to arrest, it simply means "The prosecuting attorney must negate the existence of an exception in the accusation charging commission of the offense". So at arraignment (rather than trial) the prosecutor must negate the exception, or the charges should be dismissed. A defense to prosecution must be raised by the defense attorney (presumably at trial) THEN it must be refuted beyond a reasonable doubt by the prosecution, in order for you to be found guilty.
So the same peace officer who is theoretically arresting you for a class C 30.06 violation could himself be subject to arrest for UCW and have to produce the 'defense' that he is a peace office at trial. Same with a person carrying under the authority of their LTC...this also is a 46.15 'defense', so every time you step out in public carrying under LTC, you are violating a law (46.02), to which you have a 'defense'.
