HB2295 - Bad bill

[Charles L. Cotton]

HB 2295 was filed on 3/8/04 by Robby Cook, an A-rated Democrat from Eagle Lake. This bill effectively does away with "exceptions" to the application of any part of the Penal Code, including exceptions to prosecution for UCW (unlawful carrying of weapon) under 46.02.

In essence, it would make everything an affirmative defense, once again shifting the burden to the defendant to prove his conduct came within the scope of an exception. This would negate the gains we have made in prior years by moving all of the former "defenses" to new "not applicable" sections in 46.15.

Please note, as I mentioned in the post on HB1037, there is a remaining problem with the language in 46.15 and HB1037 introduces the proper language to take advantage of "exceptions" to certain Penal Code provisions relevant to CHL holders. I suspect HB2295 was filed at the request of the association of district attorneys (I don't know the association's proper name) to negate the effect of HB1037, if it passes this session, or at any time in the future.

I seriously doubt Rep. Cook realized the full effect of this bill. In fairness to him, HB2295 appears to non-attorneys to be merely a procedural change, rather than a substantial change in the prosecution of all criminal cases, not merely UCW cases. As we have seen several times this session, special interest groups and constituents are submitting bills to Representatives and Senators and their full scope is not often appreciated on first reading, or until they get to committee. Also, the filing deadline for new bills is March 11th, so I'm sure all of these folks are getting hit with a flurry of new bills to file.

The bottom line is HB2295 would deprive the Legislature of the authority to make reasoned decisions as to whether any provision in the Penal Code should be an “exception,� a “defense,� or an “affirmative defense.� HB2295 reaches this goal through procedural means, rather than doing so in an above-board manner by directly changing every “exception� to a “affirmative defense.� The Legislature should retain the authority to make these decisions on behalf of all Texans.

Regards,
Chas.

See HB2295 at http://www.capitol.state.tx.us/cgi-bin/ ... N=1&TYPE=B