TexasCHLforum.com

Voonman wrote:Even if you have the defense to prosecution..you cannot avoid the arrest by a peace officer..If i am traveling from houston to San Antonio on a saturday with my family and i get pulled over somewhere in between the two cities and the cop does not like my NFA Tax stamps..he has the ability to lock me up for the whole weekend until i see a judge on monday..then i have to go hire an attorney for maybe lets say anywhere between 5K-10K...So you can call it whatever you want..The fact remains is ..those who possess NFA Items can get locked up if they run into Peace officer who is having a bad day..I hope something can be done about penal code 46.05 ..

Those who carry with a CHL can be "locked up" by a Peace Officer
Those who target shoot w/ a handgun...
Peace Officers can arrest other Peace Officers for carrying...

All the 46.15 non-applicabilities are "Defenses", if as has been reported...case law says "non-applicability" is only a Defense. There are many laws in the Penal Code that provide Defenses rather than exemptions. Peace Officers who arrest people for PC sections where a clear statutory Defense exists and is known to the Peace Officer at time of arrest, are likely to find themselves in trouble with the DA. It's really no different than arresting you for something that is not illegal and then making the prosecution deal with it. You can get "locked up" for walking by a Peace Officer who is "having a bad day", but I like to believe it is extremely rare. Therefore I decline to alter my behavior to account for it. As I mentioned, the standard for proving you didn't have a defense is exactly the same as proving that you committed a crime (beyond a reasonable doubt).

Ultimately I'd like to see the statutory construction of the Defense to Prosecution in the Texas Penal Code go away. I don't know its history or purpose, but since it currently exists throughout the Code, I don't really support picking it off one by one. Reason--- You bring the Legislature's attention to the fact that CAN legally own a machine gun or walk by a Gunbuster sign, then you're more than likely to get it prohibited.

A "Defense to Prosecution" is all you had for carrying w/ a CHL until 1997, and some case law seems to say that even today w/ PC 46.15 it is only a "DEFENSE". And it's all you have now for NFA items, carrying past a "gun buster". ATF won't approve transfers of NFA items like silencers where state law prohibits them, so it looks like the Feds believe that if you have a Defense, you are legal.

If you read the Penal Code definitions a Defense to Prosecution requires the prosecution to refute it "beyond a reasonable doubt" at trial, in order for you to be convicted. That is the same standard applied to the illegal conduct itself. The only difference is that the prosecution is not required to refute the defense IF you don't present it. If you go to trial with a clear legal defense in the penal code and your attorney doesn't present it...I would say you should report her to the State Bar. And you have good grounds for an appeal.

If you're worried about "taking the ride" I recommend against carrying under CHL or any of the other non-applicable actions in 46.15, like sport shooting, hunting, etc. The MPA is one part of PC 46.02 which specifically excepts you from the prohibitions therein. The others in 46.15 arguably only provide a Defense.

Meanwhile, I will continue possessing and shooting with my NFA items (machine guns, silencer), fairly secure in the knowledge that I have a Defense in that they are all registered under NFA and actually signed by the (then) Sheriff of my county. I suppose I could always take the ride for something that isn't even prohibited in law (witness the sitting Governor charged for executing a Constitutionally authorized veto), but I'm really not going to curl up in the fetal position in my home for fear of the black helicopters.

On second thought, I might start working on that second passport from St. Kitts & Nevis and some extra ammo for my bug out bag.