SB 729 hearing set for Tuesday 3-24-09 (non-posted 51% area)

[CWOOD]

Another of Sen. Hegar's bills to remove a thorn from our sides.

This bill would make it a defense to prosecution that the 51% location was not properly posted with the statutorily required notice when a CHL'er carried into the location.

The Senate Criminal Justice Committee is scheduled to meet and discuss this and other bills this Tuescay P.M.

[LarryH]

The second, I believe.

[jimlongley]

Neither the way I understand it, and IANAL. The "defense to prosecution" merely allows you to use it as a defense when you are prosecuted, and puts the onus on you to prove it.

[Charles L. Cotton]

Neither the way I understand it, and IANAL. The "defense to prosecution" merely allows you to use it as a defense when you are prosecuted, and puts the onus on you to prove it.

Jim is correct; a "defense to prosecution" means you can still be arrested, prosecuted and you have to prove your defense.

However, there is an interesting case out of the Ohio Supreme Court dealing with "defenses to prosecution" and a §1983 suit against the arresting officer. I don't recall the exact facts of the case, but a person was arrested for an offense and it was either clear that he would be successful in proving a "defense to prosecution," or with only a question or two, the officer would have known that the defendant would prevail. The officer's defense was that a defense to prosecution must be proven in court, so he didn't violate the defendant's civil rights. (It sure sounded like a "you may beat the rap, but you won't beat the ride" situation.) The court held that it is a civil rights violation to arrest someone when it is abundantly clear, or with minimal effort on the officer's part it would have been abundantly clear, that the defendant would be acquitted of the charge. (That's my paraphrase of the decision and I haven't seen it is quite some time, so my details may be in error.) This is an Ohio case, not Texas, but the rationale could well be accepted in Texas.

If this bill passes, it would be risky business to make an arrest when the business was not posting a 51% sign. I doubt may DA's would accept the charges based on those facts.

Chas.

[ClarkLZeuss]

The court held that it is a civil rights violation to arrest someone when it is abundantly clear, or with minimal effort on the officer's part it would have been abundantly clear, that the defendant would be acquitted of the charge.

This is a very good principle of law, and hopefully all state courts follow it, because IMO this is one big thing that separates a free society from a tyrannical dictatorship. On that note, let's say a person is arrested in such a civil-rights-violating way, and the case is thrown out, does Texas law allow for recourse? Meaning, can you recover your costs from the city/county/state that wrongfully arrested you? I've read stories where people attempt this, but I've never been real sure what the law has to say about it.

[hirundo82]

I was just looking at the bill analysis posted on the Legislature's website and noticed an error. The analysis says:

Under current law, a concealed handgun licensee can be charged with a Class A misdemeanor for carrying the concealed handgun into an establishment that derives 51 percent or more of its income from the sale of alcoholic beverages even if the establishment has failed to post the statutorily required notice that the establishment derives 51 percent or more of its income from the sale of alcoholic beverages.

However, according to Penal Code section 46.035, it is a third-degree felony:

Sec. 46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER.
(b) 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, on or about the license holder's person:
(1) on the premises of a business that has a permit or license issued under Chapter 25, 28, 32, 69, or 74, Alcoholic Beverage Code, if the business derives 51 percent or more of its income from the sale or service of alcoholic beverages for on-premises consumption, as determined by the Texas Alcoholic Beverage Commission under Section 104.06, Alcoholic Beverage Code;

(g) An offense under Subsection (a), (b), (c), (d), or (e) is a Class A misdemeanor, unless the offense is committed under Subsection (b)(1) or (b)(3), in which event the offense is a felony of the third degree.

Would it be worthwhile to contact someone about the error in the analysis, and if so who (Sen. Hegar's office?) should be contacted?