Is the statesman article about carry in state mental hospitals accurate?

[ScottDLS]

That rule is overridden due to the fact they would have to prosecute you under 46.03, and that allows concealed carriers to carry in a hospital unless posted 30.06/30.07. And, since it's a state facility, then they can't post 30.06/30.07.

Keith -

Why can't a State owned hospital post under 30.06/30.07?

30.06
...
(e) It is an exception to the application of this section that the property on which the license holder carries a handgun is owned or leased by a governmental entity and is not a premises or other place on which the license holder is prohibited from carrying the handgun under Section 46.03 or 46.035.
...

[Keith B]

That rule is overridden due to the fact they would have to prosecute you under 46.03, and that allows concealed carriers to carry in a hospital unless posted 30.06/30.07. And, since it's a state facility, then they can't post 30.06/30.07.

Keith -

Why can't a State owned hospital post under 30.06/30.07?

30.06
...
(e) It is an exception to the application of this section that the property on which the license holder carries a handgun is owned or leased by a governmental entity and is not a premises or other place on which the license holder is prohibited from carrying the handgun under Section 46.03 or 46.035.
...

I know a lot of folks say that because a hospital was initially listed in 46.03 as being prohibited that they can post a 30.06/30.07, but I disagree. Because section (i) was added, it says that unless they post a 30.06/30.07 it is NOT prohibited. And, section (e) specifically says governmental entities can't post a 30.06/30.07 unless it is prohibited in 46.03, which it really isn't due to section (i)'s exception.

[ScottDLS]

That rule is overridden due to the fact they would have to prosecute you under 46.03, and that allows concealed carriers to carry in a hospital unless posted 30.06/30.07. And, since it's a state facility, then they can't post 30.06/30.07.

Keith -

Why can't a State owned hospital post under 30.06/30.07?

30.06
...
(e) It is an exception to the application of this section that the property on which the license holder carries a handgun is owned or leased by a governmental entity and is not a premises or other place on which the license holder is prohibited from carrying the handgun under Section 46.03 or 46.035.
...

I know a lot of folks say that because a hospital was initially listed in 46.03 as being prohibited that they can post a 30.06/30.07, but I disagree. Because section (i) was added, it says that unless they post a 30.06/30.07 it is NOT prohibited. And, section (e) specifically says governmental entities can't post a 30.06/30.07 unless it is prohibited in 46.03, which it really isn't due to section (i)'s exception.

I looked into it, and Hospitals are prohibited in 46.035, not 46.03, so why add 30.06 (e) specifically referencing both 46.035 and 46.03 unless it was to allow them to be posted? If you are correct, a city council meeting could not be posted any more than a government owned hospital.

[Keith B]

[
I looked into it, and Hospitals are prohibited in 46.035, not 46.03, so why add 30.06 (e) specifically referencing both 46.035 and 46.03 unless it was to allow them to be posted? If you are correct, a city council meeting could not be posted any more than a government owned hospital.

When SB 273 was enrolled, there was an amendment to change 46.035 (c) to specifically allow open meetings of a governmental entity to post a 30.06/30.07 at those meetings. See https://texasattorneygeneral.gov/opinio ... kp0047.pdf page 4 near the bottom, and http://www.capitol.state.tx.us/tlodocs/ ... 00273F.htm Section 2.

There was no exception allowed for hospitals like there was for the governmental entity meetings.

[stingeragent]

Completely off topic, but I the know common conception about lawyers being crooks/liars. I get it now. If I had to deal with like 80000 different statutes on a daily basis I would probably be an ass too. My head hurts just trying to keep track of the few that involve firearms.

[Bladed]

[
I looked into it, and Hospitals are prohibited in 46.035, not 46.03, so why add 30.06 (e) specifically referencing both 46.035 and 46.03 unless it was to allow them to be posted? If you are correct, a city council meeting could not be posted any more than a government owned hospital.

When SB 273 was enrolled, there was an amendment to change 46.035 (c) to specifically allow open meetings of a governmental entity to post a 30.06/30.07 at those meetings. See https://texasattorneygeneral.gov/opinio ... kp0047.pdf page 4 near the bottom, and http://www.capitol.state.tx.us/tlodocs/ ... 00273F.htm Section 2.

There was no exception allowed for hospitals like there was for the governmental entity meetings.

Nothing in SB 273 changes the applicability of PC 30.06(e) to PC 46.035. If PC 30.06(e) previously prohibited posting 30.06 at any governmental meeting, it still prohibits posting 30.06 at governmental meetings regulated under the open meeting law. If that's the case, the clarification that the law applies only to open meetings served absolutely no purpose, and there was no reason to include it in SB 273.

The reason PC 46.035(c) was amended by SB 273 was to LIMIT the meetings that can be posted 30.06 to only those covered by the open meetings law.

Everything the legislature has done, from leaving PC 46.035(c) in place when adding PC 30.06(e) to clarifying PC 46.035(c) to apply only to open meetings, suggests that the intent of the legislature was to allow government-owned hospitals and governmental meetings to be posted 30.06.

[Keith B]

[
I looked into it, and Hospitals are prohibited in 46.035, not 46.03, so why add 30.06 (e) specifically referencing both 46.035 and 46.03 unless it was to allow them to be posted? If you are correct, a city council meeting could not be posted any more than a government owned hospital.

When SB 273 was enrolled, there was an amendment to change 46.035 (c) to specifically allow open meetings of a governmental entity to post a 30.06/30.07 at those meetings. See https://texasattorneygeneral.gov/opinio ... kp0047.pdf page 4 near the bottom, and http://www.capitol.state.tx.us/tlodocs/ ... 00273F.htm Section 2.

There was no exception allowed for hospitals like there was for the governmental entity meetings.

Nothing in SB 273 changes the applicability of PC 30.06(e) to PC 46.035. If PC 30.06(e) previously prohibited posting 30.06 at any governmental meeting, it still prohibits posting 30.06 at governmental meetings regulated under the open meeting law. If that's the case, the clarification that the law applies only to open meetings served absolutely no purpose, and there was no reason to include it in SB 273.

The reason PC 46.035(c) was amended by SB 273 was to LIMIT the meetings that can be posted 30.06 to only those covered by the open meetings law.

Everything the legislature has done, from leaving PC 46.035(c) in place when adding PC 30.06(e) to clarifying PC 46.035(c) to apply only to open meetings, suggests that the intent of the legislature was to allow government-owned hospitals and governmental meetings to be posted 30.06.

Uh, no. A government owned hospital cannot post 30.06/30.07. The exemption was added to make sure that the meetings for governmental entities were still allowed to post the meeting.

Hopefully Charles will jump in here, but I am 99.99% sure I am correct on this.

[Bladed]

[
I looked into it, and Hospitals are prohibited in 46.035, not 46.03, so why add 30.06 (e) specifically referencing both 46.035 and 46.03 unless it was to allow them to be posted? If you are correct, a city council meeting could not be posted any more than a government owned hospital.

When SB 273 was enrolled, there was an amendment to change 46.035 (c) to specifically allow open meetings of a governmental entity to post a 30.06/30.07 at those meetings. See https://texasattorneygeneral.gov/opinio ... kp0047.pdf page 4 near the bottom, and http://www.capitol.state.tx.us/tlodocs/ ... 00273F.htm Section 2.

There was no exception allowed for hospitals like there was for the governmental entity meetings.

Nothing in SB 273 changes the applicability of PC 30.06(e) to PC 46.035. If PC 30.06(e) previously prohibited posting 30.06 at any governmental meeting, it still prohibits posting 30.06 at governmental meetings regulated under the open meeting law. If that's the case, the clarification that the law applies only to open meetings served absolutely no purpose, and there was no reason to include it in SB 273.

The reason PC 46.035(c) was amended by SB 273 was to LIMIT the meetings that can be posted 30.06 to only those covered by the open meetings law.

Everything the legislature has done, from leaving PC 46.035(c) in place when adding PC 30.06(e) to clarifying PC 46.035(c) to apply only to open meetings, suggests that the intent of the legislature was to allow government-owned hospitals and governmental meetings to be posted 30.06.

Uh, no. A government owned hospital cannot post 30.06/30.07. The exemption was added to make sure that the meetings for governmental entities were still allowed to post the meeting.

Hopefully Charles will jump in here, but I am 99.99% sure I am correct on this.

And with all due respect, I'm pretty sure you're wrong.

Prior to SB 273, PC Sec. 46.035(c) read, "A license holder commits an offense if the license holder intentionally, knowingly, or recklessly carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, regardless of whether the handgun is concealed, at any meeting of a governmental entity."

Now it reads, "A license holder commits an offense if the license holder intentionally, knowingly, or recklessly carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, regardless of whether the handgun is concealed or carried in a shoulder or belt holster, in the room or rooms where a meeting of a governmental entity is held."

All that change does is limit the types of governmental meetings that can be posted. Prior to that change, any governmental meeting could be posted.

During the 2007 Texas Legislative Session, the Senate gallery was posted 30.06 whenever the Senate was convened, and during the 2009 session, both the House and Senate galleries were posted 30.06 whenever the respective legislative bodies were convened. Are we supposed to accept that lawmakers voted to revoke the power to post 30.06 at governmental meetings and then flaunted that law by posting 30.06 at governmental meetings?

Texas Penal Code Section 30.06(e) reads, "It is an exception to the application of this section that the property on which the license holder carries a handgun is owned or leased by a governmental entity and is not a premises or other place on which the license holder is prohibited from carrying the handgun under Section 46.03 or 46.035," (emphasis added).

Under PC Sec. 46.035, a license holder is prohibited from carrying a handgun in a governmental meeting or licensed hospital that is posted 30.06; therefore, PC Sec. 30.06(e) has never prohibited governmental entities from giving effective notice under PC Sec. 30.06, with regard to governmental meetings and licensed hospitals. That's also why Houston is now trying to claim that its zoo is an amusement park. Because amusement parks are listed under PC Sec. 46.035 as prohibited locations if posted 30.06, a posting on a government-owned amusement park would be valid/enforceable.

[Keith B]

Didn't quote your post from above, but the exemption for a government building being able to post a 30.06/30.07 will apply to a government owned hospital building. Since section (i) went into place it actually removes the prohibition from hospitals, amusement parks and churches unless they post a 30.06/30.07. Since there is now a NEW section prohibiting government owned buildings from posting 30.06/30.07, they can't post it since the are actually NOT a prohibited place in 46.035 as (i) nullifies their prohibition.

And, apparently the mental hospitals have been told by their legal folks to take down the 30.06 signs, so would think if there was an exception to the law, they would be leaving them up. Here's the article from Time http://time.com/4174205/texas-guns-mental-hospitals/

[Bladed]

Didn't quote your post from above, but the exemption for a government building being able to post a 30.06/30.07 will apply to a government owned hospital building. Since section (i) went into place it actually removes the prohibition from hospitals, amusement parks and churches unless they post a 30.06/30.07. Since there is now a NEW section prohibiting government owned buildings from posting 30.06/30.07, they can't post it since the are actually NOT a prohibited place in 46.035 as (i) nullifies their prohibition.

And, apparently the mental hospitals have been told by their legal folks to take down the 30.06 signs, so would think if there was an exception to the law, they would be leaving them up. Here's the article from Time http://time.com/4174205/texas-guns-mental-hospitals/

Actually, PC Sec. 46.035(i) is technically a defense to prosecution, not an exception; therefore, the statutory prohibition against concealed carry in a hospital, amusement park, church, or governmental meeting remains; however, you have a defense to prosecution if the location is not posted.

State mental hospitals are taking down their signs, which haven't been enforceable since 2003, because SB 273 created a steep civil penalty for posting an unenforceable sign on a governmental building. However, those signs are unenforceable because state mental hospitals aren't licensed under HS Sec. 241, not because state mental hospitals are owned by the state. For example, a 30.06 posting at Austin's Brackenridge hospital--which is state-owned but operated by Seton and, therefore, licensed under HS Sec. 241--would be enforceable even if Brackenridge weren't also a teaching hospital.

Few if any state-owned medical hospitals are both run by the state and not teaching hospitals; therefore, I doubt there are many if any state-owned medical hospitals that can't be posted with enforceable 30.06 signs.

[Keith B]

Actually, PC Sec. 46.035(i) is technically a defense to prosecution, not an exception; therefore, the statutory prohibition against concealed carry in a hospital, amusement park, church, or governmental meeting remains; however, you have a defense to prosecution if the location is not posted.

Actually, it is a as it states 'does not apply'.

(i) Subsections (b)(4), (b)(5), (b)(6), and (c) do not apply if the actor was not given effective notice under Section 30.06. - See more at: http://codes.lp.findlaw.com/txstatutes/ ... sQVzT.dpuf

So, if it does not apply, then it is not a defense to prosecution, it negates the prohibition.

State mental hospitals are taking down their signs, which haven't been enforceable since 2003, because SB 273 created a steep civil penalty for posting an unenforceable sign on a governmental building. However, those signs are unenforceable because state mental hospitals aren't licensed under HS Sec. 241, not because state mental hospitals are owned by the state. For example, a 30.06 posting at Austin's Brackenridge hospital--which is state-owned but operated by Seton and, therefore, licensed under HS Sec. 241--would be enforceable even if Brackenridge weren't also a teaching hospital.

Few if any state-owned medical hospitals are both run by the state and not teaching hospitals; therefore, I doubt there are many if any state-owned medical hospitals that can't be posted with enforceable 30.06 signs.

As for it being a technicality that they are not licensed under HC Sec 241, then why would they suddenly take down the signs if it wasn't a directive due to the new law? The article indicates that is the reason they have to take them down.

Still, even if they were under 241, the 'does not apply' determines they are not actually 'prohibited' locations unless there is a 30.06 sign posted, which they can't legally do.

[Bladed]

Actually, PC Sec. 46.035(i) is technically a defense to prosecution, not an exception; therefore, the statutory prohibition against concealed carry in a hospital, amusement park, church, or governmental meeting remains; however, you have a defense to prosecution if the location is not posted.

Actually, it is a as it states 'does not apply'.

(i) Subsections (b)(4), (b)(5), (b)(6), and (c) do not apply if the actor was not given effective notice under Section 30.06. - See more at: http://codes.lp.findlaw.com/txstatutes/ ... sQVzT.dpuf

So, if it does not apply, then it is not a defense to prosecution, it negates the prohibition.

The only thing that negates a criminal prohibition under the Texas Penal Code is an "exception," and Texas case law holds that only a clause using the phrase "it is an exception" is an "exception." Texas courts interpret a phrase such as "does not apply," which has no statutory meaning, to be a "defense to prosecution."

State mental hospitals are taking down their signs, which haven't been enforceable since 2003, because SB 273 created a steep civil penalty for posting an unenforceable sign on a governmental building. However, those signs are unenforceable because state mental hospitals aren't licensed under HS Sec. 241, not because state mental hospitals are owned by the state. For example, a 30.06 posting at Austin's Brackenridge hospital--which is state-owned but operated by Seton and, therefore, licensed under HS Sec. 241--would be enforceable even if Brackenridge weren't also a teaching hospital.

Few if any state-owned medical hospitals are both run by the state and not teaching hospitals; therefore, I doubt there are many if any state-owned medical hospitals that can't be posted with enforceable 30.06 signs.

As for it being a technicality that they are not licensed under HC Sec 241, then why would they suddenly take down the signs if it wasn't a directive due to the new law? The article indicates that is the reason they have to take them down.

As we all know, the media is seldom 100% accurate when reporting on gun laws. The state mental hospitals are taking down the signs because SB 273 created a steep fine for posting an invalid 30.06 sign on a governmental building; however, the signs have been invalid since 2003.

The Dallas Morning News's Tom Benning, who typically does a better job of reporting the facts than do his peers in Houston, San Antonio, and Austin, explains the issue correctly:

But that law, which went into effect in September, has been widely interpreted as creating an enforcement mechanism for a 2003 law that already made clear that gun license holders are generally allowed to carry on property owned or leased by the state or by local governments.

An expert in the statutes, Shannon Edmonds of the Texas District and County Attorneys Association, said the scenario at the state psychiatric hospitals seemed to highlight why pro-gun lawmakers offered the new legislation.

“That’s exactly the type of complaint that the advocates for [the law] were raising, which is that there are those governmental entities that are posting signs keeping us from taking our guns from where we are allowed to take them,” he said.

The hospitals’ decision coincides with the start of open carry, which this year let licensed Texans openly display holstered handguns. But that law mirrored the state’s existing concealed carry program – it doesn’t change where a person can carry a weapon.

So while the change indeed means that both open and concealed carry will be allowed at the state psychiatric hospitals, the impetus instead centers on the other new state law.

That measure allows government entities, for the first time, to face legal action and potential fines for improperly prohibiting gun license holders from carrying. But it did not change the types of government-owned property that can have gun bans.

Still, even if they were under 241, the 'does not apply' determines they are not actually 'prohibited' locations unless there is a 30.06 sign posted, which they can't legally do.

As I previously pointed out, the fact that "does not apply" only creates a defense to prosecution means that concealed carry is still statutorily "prohibited" in those locations.

[Keith B]

As I previously pointed out, the fact that "does not apply" only creates a defense to prosecution means that concealed carry is still statutorily "prohibited" in those locations.

Can you point to a definition or case law that shows this is the case? Just wanting clarification.

[Bladed]

As I previously pointed out, the fact that "does not apply" only creates a defense to prosecution means that concealed carry is still statutorily "prohibited" in those locations.

Can you point to a definition or case law that shows this is the case? Just wanting clarification.

I don't remember which case or cases upheld this, but Texas Penal Code Section 2.03(e) states, "A ground of defense in a penal law that is not plainly labeled in accordance with this chapter has the procedural and evidentiary consequences of a defense."

The labels outlined in Chapter 2 of the Texas Penal Code are, "It is an exception to the application of," "It is a defense to prosecution," and "It is an affirmative defense to prosecution."

Here is the explanation of those statutory defenses, in the Texas Legislative Drafting Manual: http://www.tlc.state.tx.us/legal/dm/dra ... al.pdf#=19

This document from the Texas City Attorneys Association explains the problems with using any phrasing other than the the statutory language for an exception, defense, or affirmative defense: http://texascityattorneys.org/2013speak ... son.pdf#=8

[Bladed]

As I previously pointed out, the fact that "does not apply" only creates a defense to prosecution means that concealed carry is still statutorily "prohibited" in those locations.

Can you point to a definition or case law that shows this is the case? Just wanting clarification.

I don't remember which case or cases upheld this, but Texas Penal Code Section 2.03(e) states, "A ground of defense in a penal law that is not plainly labeled in accordance with this chapter has the procedural and evidentiary consequences of a defense."

The labels outlined in Chapter 2 of the Texas Penal Code are, "It is an exception to the application of," "It is a defense to prosecution," and "It is an affirmative defense to prosecution."

Here is the explanation of those statutory defenses, in the Texas Legislative Drafting Manual: http://www.tlc.state.tx.us/legal/dm/dra ... al.pdf#=19

This document from the Texas City Attorneys Association explains the problems with using any phrasing other than the the statutory language for an exception, defense, or affirmative defense: http://texascityattorneys.org/2013speak ... son.pdf#=8

Here is an old post in which Charles notes the existence of case law stating that a clause using the wording "does not apply" is a defense to prosecution, not an exception: http://www.texaschlforum.com/viewtopic. ... 41#p176511