HB 302/SB 472 - Owners/Guests/Tenants of Condos cannot be barred from Carrying

[RoyGBiv]

Penal Code Title 1 Chapter 2 Burden of Proof

Sec. 2.02. EXCEPTION. (a) An exception to an offense in this code is so labeled by the phrase: "It is an exception to the application of . . . ."

(b) The prosecuting attorney must negate the existence of an exception in the accusation charging commission of the offense and prove beyond a reasonable doubt that the defendant or defendant's conduct does not fall within the exception.

(c) This section does not affect exceptions applicable to offenses enacted prior to the effective date of this code.


Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.



Sec. 2.03. DEFENSE. (a) A defense to prosecution for an offense in this code is so labeled by the phrase: "It is a defense to prosecution . . . ."

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

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

(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.

(e) 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.


Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.



Sec. 2.04. AFFIRMATIVE DEFENSE. (a) An affirmative defense in this code is so labeled by the phrase: "It is an affirmative defense to prosecution . . . ."

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

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

(d) If the issue of the existence of an affirmative defense is submitted to the jury, the court shall charge that the defendant must prove the affirmative defense by a preponderance of evidence.

https://statutes.capitol.texas.gov/docs/PE/htm/PE.2.htm

Thanks ELB...

Am I correct, then, in preferring to have an "exception" rather than a "Defense to prosecution"?
I'd much rather not be charged, or be excepted from charges, than have to pay to assert a "defense"...

I think. ?

[ELB]

Yes, an exception is stronger protection than a defense to prosecution or affirmative defense.

[RoyGBiv]

Yes, an exception is stronger protection than a defense to prosecution or affirmative defense.

So I'm not crazy? Good to know! Thanks.

What, then, I wonder, was the politics behind the weakening of the bill?

[ELB]

So I'm not crazy? Good to know! Thanks.

Well... I didn't go that far...

[RoyGBiv]

FYI... Signed by Gov Abbott yesterday. Effective 1-Sept.

https://capitol.texas.gov/BillLookup/Te ... Bill=HB302

Senate 25/6
House 101/44/2(Present)

[joe817]

FYI... Signed by Gov Abbott yesterday. Effective 1-Sept.

https://capitol.texas.gov/BillLookup/Te ... Bill=HB302

Senate 25/6
House 101/44/2(Present)

[TreyHouston]

This is a BIG WIN for a lot of people!!

[ELB]

Pretty sure this only applies to condominium units where an individual owns a particular unit and has a share in ownership of the common areas, not apartment complexes which are wholly owned by a corporation or other entity. The condo management or association cannot legally forbid carrying for the owner, tenant or guests.

Again, I do not believe this applies to rental apartments where there is no individual ownership OR to assisted living facilities where the tenant is renting a unit from a corporation.

I'm not 100% sure, but I believe you are not correct.

The defense to prosecution from 30.05, 30.06, and 30.07 for condominiums (PC Ch 81 and 82) specifies that the "actor" who may employ the defense is an owner, a guest of the owner, a tenant of the owner, or a guest of the tenant of an owner.

For Residential Tenancies, PC Ch 92, the "actor" is a tenant of the leased premises, or a guest of the tenant of the premises. It looks like Ch 92 covers everything from a single room in a house rented on an oral lease up to a corporate chain of apartments as long as the residency is a permanent one (i.e. not a motel/hotel).

For Manufactured Home communities, PC Ch 94, it applies to tenants of the manufactured home lot or guests of the tenant.
Now a manufactured home community is a parcel of land consisting of at least four lots, where the tenant brings his own manufactured home to the lot. It appears there may be a small gap for one-to-three lots...but those may be covered under "Residential Tenancies" in Ch 92. For those mobile home parks where the tenants rent both the lot and the manuf home on it, I would bet those are covered under Ch 92 as well.

So I don't think that "ownership" is an element that is required to be present. In particular for apartment complexes, I think it is only required (for the defense to apply) for the "actor" to have a lease (written or oral) for a permanent residence there, or be the guest of someone who does.

It does appear that the defense applies only to the dwelling and the route to and from the actor's vehicle/parking lot. It does appear the landlord or condo assoc can restrict licensed carry or firearms in general from common/public areas. So no lounging by the pool while open carrying, for example.