Exception or Defense? (New case law)

[mreed911]

I received this as part of a case law update from TDCAA this morning related to the language in the Penal Code of "does not apply" and the concept of an exception (which the State must negate) vs. a defense (which the Defense must prove up). This is applicable to carrying firearms because of the "does not apply" language used in the Penal Code, Chapter 46.

Link to PDF of ruling from Court of Criminal Appeals: http://www.search.txcourts.gov/SearchMe ... 2049240589

Emphasis below is mine. Note that this is not necessarily new case law, it's just the most definitive I've seen from the CCA.

Baumgart v. State
No. PD-1358-15 3/1/17
Issue:
Under the Private Security Act (Occupations Code Chapter 1702), are the provisions that say the Act “does not apply” to law enforcement personnel considered exceptions (that must be negated by the State in its charging instrument) or defenses (that must be raised by the defendant)?
Holding:
Defenses that the defendant must raise. The Court concluded that if a defensive matter does not use the exact wording for exceptions outlined in Penal Code §2.02, it is not an exception or affirmative defense but instead a defense that is governed by Penal Code §2.03. The State has no burden to negate defenses governed by §2.03 in the charging instrument. Even though the heading in Subchapter N of the Private Security Act is titled “Exceptions,” the heading does not limit or expand the meaning of the statute itself. Furthermore, the Court specifically addressed how §§2.02 and 2.03 apply to offenses outside the Penal Code. Read opinion.
Commentary:
Most importantly, the Court holds, consistent with several lower courts, that the statutory language “does not apply” means a defense rather than an exception. A holding to the contrary might have blown up thousands of cases around the State because there are many defenses in Texas statutes labeled “does not apply” rather than “it is a defense.” The holding that §§2.02 and 2.03 can apply to offenses outside the Penal Code is good but less important.

This (PC 2.02/2.03) really needs to be addressed by our legislators this session. Under this case law - as an extreme example - it is now an arrestable offense for a police officer to carry a gun; the state does not have to address his/her status as an officer when charging and the officer must prove up their status as a defense at trial since PC 46.15(1) is a defense, not an exception. Surely that isn't what the legislature intended.

[The Annoyed Man]

Ok...... you made my head hurt.......

[mreed911]

We've discussed this particular nuance here (ad nauseam) re: exception vs. defense to prosecution. The short version is that an exception is something a prosecutor must negate in order to be able to charge a crime where a defense is something the defense must raise and prove and a prosecutor doesn't have to consider when charging someone (in practice, most do, because they don't bring cases with clear defenses, etc.).

The Penal Code has 46.15 which says "Sections 46.02 and 46.03 do not apply to" which many people have claimed are exceptions. In this specific case (above), the Chapter Title of the law the person was prosecuted under was "Exceptions." In EVERY case, the Court of Criminal Appeals has ruled that since the legislature passed PC 2.02/2.03 with the specific requirement for the specific "it is an exception to..." language, any other statute not using that EXACT language is, in fact, a defense or list of defenses.

Let that sink in. A Chapter titled "Exceptions" does not actually contain exceptions because the legislature required specific wording for Exceptions, which that chapter, titled Exceptions, never uses. The same applies for "does not apply" - it doesn't mean it doesn't apply at the time of deciding whether to charge someone (BEFORE the fact, meaning you're subject to arrest, arrest record, arraignment, bail, etc.) - it matters if the defense can prove that it doesn't apply AFTER the fact.

The more practical application (and worrisome) of this w.r.t. 46.15 is for retired peace officers. 46.15 says 46.02/46.03 does not apply to retired peace officers (carrying ID, etc.). That means a retired peace officer could be arrested, have an arrest record, be arraigned, forced to post bail and go to trial, then prove up at his expense that he is, in fact, a retired police officer (which, because it's a defense, the prosecution would have to try and negate) to be found not guilty. If, however, the language was fixed, a rogue officer would have to negate the exception to have probable cause to arrest and a rogue prosecutor would have to, before charging someone, validate and prove up the negation to that exception in order to even bring charges.

It changes the dynamic, but more importantly, it corrects the language. A Chapter titled "Exceptions" would be treated as exceptions and "does not apply" (though that specific language STILL needs to be fixed separately) would be able to be construed as an exception, not a defense.

[ScottDLS]

We've discussed this particular nuance here (ad nauseam) re: exception vs. defense to prosecution. The short version is that an exception is something a prosecutor must negate in order to be able to charge a crime where a defense is something the defense must raise and prove and a prosecutor doesn't have to consider when charging someone (in practice, most do, because they don't bring cases with clear defenses, etc.).

The Penal Code has 46.15 which says "Sections 46.02 and 46.03 do not apply to" which many people have claimed are exceptions. In this specific case (above), the Chapter Title of the law the person was prosecuted under was "Exceptions." In EVERY case, the Court of Criminal Appeals has ruled that since the legislature passed PC 2.02/2.03 with the specific requirement for the specific "it is an exception to..." language, any other statute not using that EXACT language is, in fact, a defense or list of defenses.

Let that sink in. A Chapter titled "Exceptions" does not actually contain exceptions because the legislature required specific wording for Exceptions, which that chapter, titled Exceptions, never uses. The same applies for "does not apply" - it doesn't mean it doesn't apply at the time of deciding whether to charge someone (BEFORE the fact, meaning you're subject to arrest, arrest record, arraignment, bail, etc.) - it matters if the defense can prove that it doesn't apply AFTER the fact.

The more practical application (and worrisome) of this w.r.t. 46.15 is for retired peace officers. 46.15 says 46.02/46.03 does not apply to retired peace officers (carrying ID, etc.). That means a retired peace officer could be arrested, have an arrest record, be arraigned, forced to post bail and go to trial, then prove up at his expense that he is, in fact, a retired police officer (which, because it's a defense, the prosecution would have to try and negate) to be found not guilty. If, however, the language was fixed, a rogue officer would have to negate the exception to have probable cause to arrest and a rogue prosecutor would have to, before charging someone, validate and prove up the negation to that exception in order to even bring charges.

It changes the dynamic, but more importantly, it corrects the language. A Chapter titled "Exceptions" would be treated as exceptions and "does not apply" (though that specific language STILL needs to be fixed separately) would be able to be construed as an exception, not a defense.

And this has been the case more or less for 22 years since CHL was added to 46.15...

True exceptions...which use the correct statutory language, have to be proactively proven NOT to apply by the prosecution in the charging instrument. But that might not happen without the defense bringing it up (presumably at the arraignment) or if it's somehow missed, then at trial. A Defense (or Exception treated by this case law as a Defense), must be raised by the defense at trial before the prosecution is required to refute it. A decent attorney would raise an exception pre-trail. However if a true exception was overlooked by defense and not positively refuted by the prosecution, then the case for overturning the verdict on appeal would be very strong.

On the other hand, a Defense not raised at trial, would likely not be enough to get a verdict reversed.

As far as being arrested for an offense...Defense, Exception, or "Didn't Do It" are all evaluated by the Prosecution before going to trial. It's highly unlikely that if you have a clear Defense that prosecution will proceed to trial, but if they do you have to raise it AT TRIAL (duh...).

So the question is...do you want to risk the proverbial "ride" for a felony when carrying under authority of LTC in your local (beer selling) Quikie Mart???

[mreed911]

Or anywhere. Carrying a gun is illegal in Texas and there are no exceptions.

Defenses, yes, but no exceptions. None.

Unless we get the legislature to fix this. The easiest fix is to change 46.15 to use the right language.

[ScottDLS]

Or anywhere. Carrying a gun is illegal in Texas and there are no exceptions.

Defenses, yes, but no exceptions. None.

Unless we get the legislature to fix this. The easiest fix is to change 46.15 to use the right language.

Actually, carrying on your own property is not illegal per 46.02, but essentially everything else is a "Defense to Prosecution" even when it appears intended to be an exception. I think the magic words are "it is an exception to application of (whatever statute)....(conditions of the exception)" instead of XYZ statute does not apply.

Also to mreed911 I want to say thanks for posting the case link as the first specific reference that I have seen that makes 46.15 a Defense vs. an actual "exception". Charles has mentioned some case law existed on this from as far back as 2001?, but I never was able to find the actual case.

[mreed911]

Actually, carrying on your own property is not illegal per 46.02, but essentially everything else is a "Defense to Prosecution" even when it appears intended to be an exception. I think the magic words are "it is an exception to application of (whatever statute)....(conditions of the exception)" instead of XYZ statute does not apply.

It is, actually, illegal per se - it requires as an element of the offense, however, that the property isn't owned/controlled by the actor. You could be arrested and forced to prove up "on the person's own premises or premises under the person's control" as a defense to prosecution at trial. It would go something along the line of "defendant could not, at the time of arrest, provide proof that the property was his own or under his control, and probable cause existed to believe it was not [insert specious probable cause here]." See below, though - I acknowledge this is edge case, unlikely, and "theortical" at best. That, however, is the kind of thing lawmakers get to correct when their language is too specific, too broad, or worse... both at the same time. :)

Again, that's "theoretical law", e.g. what the law says not how it's applied by any member of the judiciary (from police through prosecutors to judges) because they have to at least act in good faith.

Also to mreed911 I want to say thanks for posting the case link as the first specific reference that I have seen that makes 46.15 a Defense vs. an actual "exception". Charles has mentioned some case law existed on this from as far back as 2001?, but I never was able to find the actual case.

This case was adjudicated this week. March 1st. It's VERY recent. It's also from a controlling court. FWIW, it lists SEVERAL other cases dating back to the inception (1974) of 2.02/2.03 that deal with this very language. It's been bad language for more than 40 years (and, similarly and fairly, not broadly abused in those 40 years). In today's political climate (Harris County, anyone?), however, the danger of abuse is growing.

[mreed911]

Just FYI, I emailed Stickland's office since he's on our side and I also emailed every member of the Senate's Criminal Justice committee (hopefully that's the right one) with a link to the decision asking that they clarify the law since now, technically, it was illegal for them, DPS, anyone to carry firearms. :)

[ScottDLS]

Just FYI, I emailed Stickland's office since he's on our side and I also emailed every member of the Senate's Criminal Justice committee (hopefully that's the right one) with a link to the decision asking that they clarify the law since now, technically, it was illegal for them, DPS, anyone to carry firearms. :)

Not firearms, but handguns or other "weapons" mentioned in 46.01. All the Defenses to Prosecution for 46.02/03 including for cops, were listed that way in 1995 (I still have the book). I forget when they added 46.15, but they didn't get the "exception" language correct per this ruling, so it's only a Defense. But that doesn't mean that anyone "has" to do anything (i.e. arrest you, charge you for it). The burden of proof for all criminal laws is "beyond a reasonable doubt". Whether an Exception, Defense, or "didn't do it"...you can't be convicted of breaking the law without the State meeting this burden. Therefore to state that "X is illegal in Texas" even if a Defense exists is (in my opinion...) inaccurate. The Defenses are written in the law. In order to be guilty of breaking the law, the prosecution has to refute the Defense (beyond a reasonable doubt). What they do not have to do is offer the Defense for you at trial. You have to bring it up. But if you do, you can't be proved to have broken the law. Therefore if a Defense exists and you meet it, you are not breaking the law.

[Liberty]

Getting charged and prosecuted is a punishment for anyone charged even if found not guilty. The system isn't kind particularly if you can't afford it.

[mreed911]

I forget when they added 46.15, but they didn't get the "exception" language correct per this ruling, so it's only a Defense.

To be clear, this is the (now well defined in case law) crux of the problem. The legislature likely intended one thing but wrote another. The language needs to be fixed.

...to state that "X is illegal in Texas" even if a Defense exists is (in my opinion...) inaccurate. The Defenses are written in the law. In order to be guilty of breaking the law, the prosecution has to refute the Defense (beyond a reasonable doubt)... Therefore if a Defense exists and you meet it, you are not breaking the law.

I'd argue with you over this, politely (like a quibble!). You've still violated the law (which is why you were arrested, arraigned and tried), however the State has seen fit to provide a defense to prosecution. If you assert and prove beyond a reasonable doubt (or, in the case of an affirmative defense, a preponderance) to a judge or jury that the defense is valid in your case then you cannot be adjudicated as guilty of violating the law because your violation was justifiable (see Chapter 9 for additional justifications). Justification itself, in fact, is a defense to prosecution. :)

The State also has the ability at ANY point in this process to defer action to investigation, e.g. "take a report, do an investigation because we're not sure enough to assert probable cause without reasonable exception, defense or affirmative defense, and later bring charges within the statute of limitations should investigation cast reasonable doubt on any of the above."

[ScottDLS]

....

...to state that "X is illegal in Texas" even if a Defense exists is (in my opinion...) inaccurate. The Defenses are written in the law. In order to be guilty of breaking the law, the prosecution has to refute the Defense (beyond a reasonable doubt)... Therefore if a Defense exists and you meet it, you are not breaking the law.

I'd argue with you over this, politely (like a quibble!). You've still violated the law (which is why you were arrested, arraigned and tried), however the State has seen fit to provide a defense to prosecution. If you assert and prove beyond a reasonable doubt (or, in the case of an affirmative defense, a preponderance) to a judge or jury that the defense is valid in your case then you cannot be adjudicated as guilty of violating the law because your violation was justifiable (see Chapter 9 for additional justifications). Justification itself, in fact, is a defense to prosecution. :)

The State also has the ability at ANY point in this process to defer action to investigation, e.g. "take a report, do an investigation because we're not sure enough to assert probable cause without reasonable exception, defense or affirmative defense, and later bring charges within the statute of limitations should investigation cast reasonable doubt on any of the above."

It is the State that must NEGATE your Defense to Prosecution (beyond a reasonable doubt) in order to convict you. That's the reason I argue that the action taken (providing you have the Defense) is legal. The law (Penal Code) itself sets out the Defense...If you meet the conditions, you are not breaking the law. It's just that if you are taken to trial, you have to raise the Defense...but it's already been provided for in the law. You didn't break the law if you meet the conditions of the Defense, any more than if you didn't do what the law prohibited.

[mreed911]

It is the State that must NEGATE your Defense to Prosecution (beyond a reasonable doubt) in order to convict you. That's the reason I argue that the action taken (providing you have the Defense) is legal. The law (Penal Code) itself sets out the Defense...If you meet the conditions, you are not breaking the law. It's just that if you are taken to trial, you have to raise the Defense...but it's already been provided for in the law. You didn't break the law if you meet the conditions of the Defense, any more than if you didn't do what the law prohibited.

Let's look at this step by step per PC 2.03(b-d): emphasis mine

b) The prosecuting attorney is not required to negate the existence of a defense in the accusation charging commission of the offense.

Translation: You don't GET a defense until you get to trial. After arrest. After arraignment/information. After bail. After hiring an attorney. After now having an arrest on your record. After.

(c) The issue of the existence of a defense is not submitted to the jury unless evidence is admitted supporting the defense.

Let's start with "the state must NEGATE" from your quote above. Before that, you have to both assert the defense and admit evidence supporting it.

(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.

Now let's re-examine "NEGATE." You must provide enough evidence (and rebut enough prosecutorial action/evidence) under the law to establish reasonable doubt in the mind of the jury. You have to prove the defense, not simply assert it and have the prosecutor disprove it.

If you didn't break the law in the first place there couldn't be an arrest, prosecution and trial. You broke the law - the defense exists to effectively prevent successful prosecution for breaking the law.

It's subtle and nuanced but that's important.

You broke the law. A defense exists to prevent successful prosecution for... breaking that law. You're simply not guilty of a criminal violation because the law allows for such relief in the form of a defense.

Again, to take this to absurd lengths: every police officer who carries a handgun at work every day is breaking the law as it is currently [poorly] written. The way 46.15 is worded - today - they COULD be arrested, charged and prosecuted for doing so and then and ONLY THEN bring up the defense of being a peace officer, providing their license and the testimony of someone from TCOLE validating the license as real, valid, etc. and establish reasonable doubt in support of their defense. Nobody arrests them for it because we have a good system of checks and balances that provide reasonable assurance that a uniformed police officer is, in fact, licensed, etc. and successfully satisfies the burden of proof for the defense before anything gets started, so there's absolutely no reason to arrest/charge/prosecute something you know will result in an acquittal.

For those of us that aren't police, that violate this law in less sufficiently provable ways? We are at (marginally) higher risk for a poor interaction resulting in sitting in a defendant's chair having to prove up a defense. That just shouldn't be. It should be an exception, as the legislature appears to have wanted it to be ("does not apply") but failed to appropriately write to make it so.

That language very much needs to be fixed.

[mreed911]

Interesting side note: the court cites Tafel vs. State of Texas here (note 66). I commented on Tafel when it came out, too. It was "locally" controlling in this regard. Now it's statewide.

Here's the really interesting piece... let's say that a bill was drafted to change "does not apply" to "it is an exception to..." in 46.15. It'd never pass. Why? The court knows (page 21):

Liberally construing such exemptions to be exceptions could result in the State having to negate more than a dozen allegations in a charging instrument, even if most of the exemptions would never be in issue in a given case.

Yep, that's right. If they become exceptions, the state has to negate them in EVERY case where they want to charge someone because it's on the state to negate exceptions (unlike defenses, which don't have to be addressed at all at charging).

So, DA's and CA's everywhere would fight this. What really needs to happen is a full repeal of 46.02 and 46.03 (and 46.15 since it wouldn't be needed anymore, and 46.035 for the same reasons).

You should also read footnote 87. An excerpt from a really old (pre-46.15) case:

"If the defendant was a soldier or a peace-officer, etc., or was at the time on his own premises, or travelling, or in imminent danger, such fact was peculiarly within his own knowledge, and he should have shown it by the evidence either of his own witnesses or those of the State."

[ScottDLS]

It is the State that must NEGATE your Defense to Prosecution (beyond a reasonable doubt) in order to convict you. That's the reason I argue that the action taken (providing you have the Defense) is legal. The law (Penal Code) itself sets out the Defense...If you meet the conditions, you are not breaking the law. It's just that if you are taken to trial, you have to raise the Defense...but it's already been provided for in the law. You didn't break the law if you meet the conditions of the Defense, any more than if you didn't do what the law prohibited.

Let's look at this step by step per PC 2.03(b-d): emphasis mine

b) The prosecuting attorney is not required to negate the existence of a defense in the accusation charging commission of the offense.

THIS IS IN THE ACCUSATION (CHARGING DOCUMENT) not the trial. PC Chapter 2.01 says that all the elements of the offense must be proven, beyond a reasonable doubt BY THE PROSECUTION

Translation: You don't GET a defense until you get to trial. After arrest. After arraignment/information. After bail. After hiring an attorney. After now having an arrest on your record. After.

The DEFENSE IS SPECIFIED IN THE STATUTE(S). It's there whether you get arrested, charged tried or not.

(c) The issue of the existence of a defense is not submitted to the jury unless evidence is admitted supporting the defense.

This is the difference between an Exception and a Defense to Prosecution, if the defendant provides evidence supporting the Defense the judge must instruct the jury that the prosecution MUST disprove it (the fact of the Defense) beyond a reasonable doubt or the jury should acquit.
Let's start with "the state must NEGATE" from your quote above. Before that, you have to both assert the defense and admit evidence supporting it.

(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.

Now let's re-examine "NEGATE." You must provide enough evidence (and rebut enough prosecutorial action/evidence) under the law to establish reasonable doubt in the mind of the jury. You have to prove the defense, not simply assert it and have the prosecutor disprove it.

This is the part that I think is backwards...once you raise the fact, the PROSECUTION must refute it (the Defense) beyond a reasonable doubt. The Defense is there in the law. The fact (e.g. that you had a license) existed at the time of the offense, and means that the statute was not violated...you simply must specify the fact IF you get to trial. But they shouldn't TAKE you to trial or even arrest or charge you for that matter if the fact of the existence of the defense is known to the investigating official.



If you didn't break the law in the first place there couldn't be an arrest, prosecution and trial. You broke the law - the defense exists to effectively prevent successful prosecution for breaking the law.

Of course you could (be arrested, charged, tried), when you didn't break the law...it happens all the time. However, the burden of proof in a criminal case is always on the prosecution. The issue of Defense, Exception, or "Didn't do it" is simply a difference in when the fact has to be presented, and by whom.


It's subtle and nuanced but that's important.

You broke the law. A defense exists to prevent successful prosecution for... breaking that law. You're simply not guilty of a criminal violation because the law allows for such relief in the form of a defense.

My argument is, you didn't break the law, your Defense existed in the law at the time of the act. The burden of proof is always on the prosecution. The trier of facts is the jury, if the prosecution can get you there. They shouldn't "get you there" if the fact of the Defense very clearly exists, just like if it's clear that you didn't perform the proscribed action...[/color]

Again, to take this to absurd lengths: every police officer who carries a handgun at work every day is breaking the law as it is currently [poorly] written. The way 46.15 is worded - today - they COULD be arrested, charged and prosecuted for doing so and then and ONLY THEN bring up the defense of being a peace officer, providing their license and the testimony of someone from TCOLE validating the license as real, valid, etc. and establish reasonable doubt in support of their defense. Nobody arrests them for it because we have a good system of checks and balances that provide reasonable assurance that a uniformed police officer is, in fact, licensed, etc. and successfully satisfies the burden of proof for the defense before anything gets started, so there's absolutely no reason to arrest/charge/prosecute something you know will result in an acquittal.

It's not breaking the law to perform a proscribed action, FOR WHICH YOU HAVE A STATUTORY DEFENSE. The fact of the Defense is provided in the statute. The law says "it's illegal to carry a handgun in public, unless you're a cop, or LTC, or military on duty, etc." Sure you can be arrested for anything, including something you didn't do... and isn't illegal even if you did... But you haven't "broken the law" until the prosecution proves you have, or you admit you have (plead guilty).

For those of us that aren't police, that violate this law in less sufficiently provable ways? We are at (marginally) higher risk for a poor interaction resulting in sitting in a defendant's chair having to prove up a defense. That just shouldn't be. It should be an exception, as the legislature appears to have wanted it to be ("does not apply") but failed to appropriately write to make it so.

That language very much needs to be fixed.

See my comments in RED. I do believe it's a matter of semantics if you want to say that you "break the law" when you do something for which you have a Defense. As long as you raise the Defense, the prosecution is obligated to refute it beyond a reasonable doubt, and if they can't then you haven't committed a crime.