TexasCHLforum.com

infoman wrote:Ok, one thing about "burden of proof", what I meant by that was this.. Regardless of what the statues say or what anything thinks "ought" to happen.. I want to hear of someone who already has had a denial hearing in front of a judge to appeal their "denial". Until then, I don't believe it would happen. Has anyone already "tested" what the laws or statues say? I need to see proof, not talk about how things should be. This doesn't count for someone who received a denial letter, I'm asking to show me someone who had a long processing time and filed for an appeal trial? that's all I'm saying. I'm talking reality, not what ought to be.. Applications are "supposed" to be done within 60 days.. but in reality they aren't. I like to deal in Reality.

infoman wrote:I'm not against anyone here and I totally respect Mr. Cotton and everyone else in this debate, but again, I would like to hear if anyone has already had a denial hearing when they haven't been denied. the burden of proof is on the person making the claim. To claim that you can get a denial hearing in front of a judge in court, because you are unhappy with the processing time or waiting on a Harris Co. background, etc. I need to see the proof before I will except that as reality. The statues are written as a guide open to interpretation by attorneys, judges and the like. I want to actually see and hear about someone who actually gets a trial(when they haven't been denied in writing) before I will belief it could actually happen in reality. I can tell you what I think would happen if you filed an apeal for denial, they would treat it like a legislative actions sheet and speed up the process and get the license issued asap. It may help to get your license, but you won't get to a judge in court in an official trial. Again, I need the proof before I believe..

quickdraw wrote:Mr. Cotton
I agree that at the 90 day point an applicant can be considered denied by the way the law is written. Given that, I don't understand why most people go way beyond the ninety day mark and eventually get their permit. It seems to me that the denial after ninety days means nothing just as the supposed to be issued within a certian time period means nothing. They are the DPS and they seem to do what they dang well please. I wish I had the same benifit when filing and paying my taxes.
I have been told a couple of times by the woman actually processing my application that as soon as they get a BG check from Harris County they wil be issuing me my permit. The laws as written pertaining to the process IMHO mean nothing?
Am I way off base??

infoman wrote:Again, you can't appeal a "denial" when you haven't been "denied", you're only denied when you get a letter letting you know you are denied. You can have a hearing to complain about processing times or to argue the statues, but not a denial, I promise you won't make it far on this.

Aladinbama wrote:So ... We ??????
1) Hire (spend our hard earned money, and probably a lot of it) an attorney who is completely familiar with the controlling code provisions and case law or ....
2) Wait for DPS to do what they do (if they ever get around to doing it).

Aladinbama wrote:OT - And to whomever PMed me, if somebody can't actually beat Rick Perry (if he runs again) in the next election, I'm moving! I mean, do you really think he's done anything to actually get re-elected (ex. look what he did for education), and if enough of the State of Texas actually thinks so ... would it be worth staying.

• No later than 30 days after receipt of application materials (not a completed application), DPS must send file to the DPS local designee - [§411.176(a)];
  No later than 60 days after "local designee" receives a completed application, DPS must:
  • 1) issue the license;
    2) deny the license; or
    3) issue a letter explaining specifically why they can't comply with the statute and give an estimate when they will finish [§411.177(b)], not to exceed 180 days [§411.176(b)

CrimsonSoul wrote:

HGWC wrote: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

HGWC wrote: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.

dicion wrote:

nitrogen wrote:

infoman wrote: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.

Tex. Gov't Code §411.180 wrote: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.

HGWC wrote:

dicion wrote: 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?

infoman wrote: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.

Tex. Gov't Code §411.177 wrote: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.

Reload 02 wrote: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.

Reload 02 wrote:I am far from any type of legal expert but I read this:

(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.

to mean that if they do not approve within 90 days then the permit is denied by default. That would not bode well for most of us.