TexasCHLforum.com

nitrogen wrote:Look at it this way.

The speed limit on I-635 is 60mph. The rest of the traffic is doing 75, as are you.

Just because DPS isn't stopping everyone going over 60 doesn't mean that you're OK to break the law.

That's pretty much what's going on here. DPS is going WAY over the "speed limit" and nobody is stopping them.

I'd actually think its more like they're going way UNDER the minimum 45mph Speed :P

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.

The Knowledgable Mr. Cotton has already stated his opinion on this above. Since he IS a lawyer, I'm going to believe him.

He said that according to law, you are denied at the 90 day mark, letter or not.
The letter only starts the 30 day countdown in which you have to appeal. No letter, you are denied, and can appeal, but have no time limit yet to do so.

Read this, and the next 2 posts. http://www.texasshooting.com/TexasCHL_F ... 30#p295683" onclick="window.open(this.href);return false;

Whether DPS actually agrees and files the appeal is another matter entirely. But the statute lays it out in black and white. 90 Days with Nothing to show? Denied.

Aladinbama wrote:

Charles L. Cotton wrote:This is not something that should be taken lightly, so please consider this if you are planning to do this without an attorney, or an attorney not completely familiar with the controlling code provisions and case law.
Chas.

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).

3) Wait and see what Charles has up his sleeves, and go with that.

After reading all of Charles' responses, I think this should now be everyone's primary course of action.
Hitting DPS with thousands of whatever he's planning, simultaneously, will DEFINITELY make a bigger splash in the pond then us doing one-offs, and will, hopefully, get everything permanently changed for the better

Also, Thank you Charles for confirming a lot of what I was saying, I did miss the letter requirement for the 30 days though, thanks for pointing that out.
Reading Legalese can make anyone confused, and cause headaches. I don't know how you can do it all day and remain sane! Thanks for all your work you do!

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?

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 wrote:

dicion wrote:

HGWC wrote:

dicion wrote: By law, you have been denied. It's there, in black and white, in the statutes, letter or not.

If they didn't send the letter explaining why the background check is delayed with an estimate for how long the delay is.

Negative. See my reasoning above. Subsection (c) applies whether they complied with (b) or not.

I can see your point, but even so, like I said, they're already not complying with 411.180 by not sending out the written notices of the implicit (ie any) denials.

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

Unfortunately, I don't think I can, since they needed me to send them more documentation.
They could say that I did not provide a "Completed Application" until the day I sent them the documentation, which was about 3 weeks ago.

HGWC wrote:

dicion wrote: By law, you have been denied. It's there, in black and white, in the statutes, letter or not.

If they didn't send the letter explaining why the background check is delayed with an estimate for how long the delay is.

Negative. See my reasoning above. Subsection (c) applies whether they complied with (b) or not.

CrimsonSoul wrote:How do you request a hearing?

Like this:

http://dicion.net/chlletter.doc" onclick="window.open(this.href);return false;

HGWC wrote: I suspect that requesting hearings with the DPS won't help that much. I doubt they'll ever schedule one. They're obviously not too concerned with violating these laws. If they do ever schedule one, they'll lose the first hearing. After that, they'll just start sending out the letters again. If they send you a letter within 60 days with a lame excuse, like IKE, and a grossly unfair estimate of completion, it's not an implicit denial under 177c. If they send the letter, they no longer fail to act under 177b and it's no longer an implicit denial under 177c.

I believe you are Incorrect on the above assumption.

(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.

It doesn't say anything about sending a letter. They can send you 10,000 letters, but if they do not either issue, or deny you a licence by day 90 (60 + 30), you are implicitly denied.
If they acted as required in (b), by sending the letter, this section still applies to them regardless.
It does not say 'Failure of the department to send for a period of 30 days as required in Subsection (b)'.

The letter only allows them to go Past 60 days, up to 90 days, but not past that.

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.

By law, you have been denied. It's there, in black and white, in the statutes, letter or not.

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.

Awesome Charles!!!

Thanks for all the work you do

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.

Actually, it would. A Denial means you can request a hearing, within 30 days, to go before a judge. The DPS then has to show WHY you were denied. And "We're still waiting on the BG check" Is not an acceptable reason. Only genuinely disqualifying reasons are.

Reload 02 wrote:They will deal with me. My wife's family is very close friends with the Chairman and his family.

You could nicely request that he read over GC §411.177(b)

GC §411.177(b) wrote: (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.
(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.
(d) A license issued under this subchapter is effective from the date
of issuance.

Shall, not May, or Can. Shall.

By law, They have 60 days to issue, deny, or give you a letter saying there will be a delay.
They have 90 days TOTAL to issue you your license. Period, all delays included.

To Harris, and other Counties taking months to get the BG Checks back:

GC §411.176(b) wrote:
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 appli-
cation 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 applica-
tion materials.

Shall, again.

I know some people say that there is also a 180 day number there. That section reads as follows:

GC §411.176(b) wrote: On receipt at the department's Austin headquar-
ters of the application materials and the result of the investigation by
the director's designee, the department shall conduct any further
record check or investigation the department determines is necessary
if a question exists with respect to the accuracy of the application
materials or the eligibility of the applicant, except that the department
shall complete the record check and investigation not later than the
180th day after the date the department receives the application mate-
rials from the applicant.

I Read this to mean, that, AFTER the department gets it back from the county, and ONLY After.
Also, it says nothing about them not being able to issue the license during this period.
I take this to mean, they are Still Required to issue within 90 days, but can continue doing more checks afterwards ONLY IF they find something that may disqualify you, or have an application accuracy question.

So, if nothing comes up in either their, the FBI, or the county investigation. And the application is proper, they do not get these 180 days. At all.

Just my opinion on this whole Charade

That's ridiculous, as well as illegal.

Did you tell them that?