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Thread: Anyone have a friend who is a District Attorney?

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    Doc or anyone else who may have a friend who is a District Attorney, County Attorney, legislator, or anyone who can ask the AG's office for an opinion: this is what we need for several items. These are items which are unclear and/or are being interpretedly differently by different governmental agencies.

    1) Can you carry pre-1899 handguns with no retrictions from Penal Code section 46?

    2) Can government entities make an entire building off-limits when a court or court office is anywhere there (perhaps many floors away)?

    3) Can meetings of government bodies post a 30.06 sign per 46.035 after their ability to post was circumscribed in the 30.06 statute?

    4) Use of SSN is regulated by federal law. Several AG/courts have opined that the mandatory collection of it is NOT legal as related to licenses to carry, purchase, or own firearms. Thus, is Texas' requirement in the Family Codein conflictunder U.S.C 666? A good argument can be made that a CHL does not fall into any of the categories there.

    5) Given that the Legislature's authority in the TX Constitution is to "regulate the wearing of arms" and the TX Supreme Courtlong ago determined this didn't extend to long guns, arerestrictions on mere possession (among other things)in Penal Code 46.03 "Prohibited Weapons" of machine guns, short-barreled rifles & shotguns, spud guns, etc. unconstitutional?

    I've sent a paper letter (not email) to State Rep Joe Driver, Law Enforcement chairman asking that he ask for an AG's opinion. I encourage you to do the same as well as your State Representative and Senator. We need these items resolved so that CHL-holders and government bodies alike understand their obligations under law.

    Thanks, SA-TX

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    SA-TX wrote:
    Doc or anyone else who may have a friend who is a District Attorney, County Attorney, legislator, or anyone who can ask the AG's office for an opinion: this is what we need for several items. These are items which are unclear and/or are being interpretedly differently by different governmental agencies.

    1) Can you carry pre-1899 handguns with no retrictions from Penal Code section 46?

    2) Can government entities make an entire building off-limits when a court or court office is anywhere there (perhaps many floors away)?

    3) Can meetings of government bodies post a 30.06 sign per 46.035 after their ability to post was circumscribed in the 30.06 statute?

    4) Use of SSN is regulated by federal law. Several AG/courts have opined that the mandatory collection of it is NOT legal as related to licenses to carry, purchase, or own firearms. Thus, is Texas' requirement in the Family Codein conflictunder U.S.C 666? A good argument can be made that a CHL does not fall into any of the categories there.

    5) Given that the Legislature's authority in the TX Constitution is to "regulate the wearing of arms" and the TX Supreme Courtlong ago determined this didn't extend to long guns, arerestrictions on mere possession (among other things)in Penal Code 46.03 "Prohibited Weapons" of machine guns, short-barreled rifles & shotguns, spud guns, etc. unconstitutional?

    I've sent a paper letter (not email) to State Rep Joe Driver, Law Enforcement chairman asking that he ask for an AG's opinion. I encourage you to do the same as well as your State Representative and Senator. We need these items resolved so that CHL-holders and government bodies alike understand their obligations under law.

    Thanks, SA-TX

    Sorry, I thought I had replied to this one but I guess I never got back to it.

    As for the pre-1899 question, well, nuff said there in the other thread.

    On to question number 2. I too have posed this question to several people in positions to address this subject. I have seen entire buildings posted that contain no more than an office of the court and I have seen buildings where only the floor the court was located on was posted. I have asked 2 different DA's and got opposing answers. One said only the floor the court or court offices are on and the other said the whole building. I asked a District court judge that I know and he said he believed it meant only the floor, but added that it was probably arguable either way and felt that if actually challenged the high court would probably side with the whole building idea. (He suggested the legislature change the law to exclude the courtroom only - I like this guy).

    So, to answer your question, beats the hell out of me. Even the court officials cant agree, so how can we know for sure. This is just another place that we need some clarification from the legislators.

    #3 As for posting meeting of government entities, 30.06 changed that, but it did not prevent posting meeting. In addition to the creation of the text of 30.06, 46.035 (i) was added, which states that 46.035 (b)(4), (b)(5), (b)(6) and (c) do not apply unless notice is given under 30.06. So, they can post meeting of the governmental regulating body, but nothing else. 30.06 also allows for posting of any government property otherwise prohibited under 46.02, 46.03or 46.035.

    Now, on to the SSN dilemma (#4). Texas does not use SSN's to log or track individuals, it uses them to identify the individual for the purpose of background investigation through the federal system, which uses the SSN for identification andrequires theSSN to be submitted for their search. Since the federalcheck is required by law and the use of ones SSN is required to perform thecheck,the collection ofones SSN islegal as long as it is not used by the state to identify you for state purposes.

    #5 As for the prohibited weapon section being illegal, well, I will have to re-read the Texas Supreme Court ruling on the long-gun issue and a few other items to make an honest statement or opinion there. If memory serves me, I think these weapons are covered elsewhere and were not protected my the long-gun ruling, but, I need to look into that again. It has been too long. I feel fairly certain that is a big enough issue to have been challenge by now if it were not as least fairly clearly defined and seeming legal. (Too many rich guys out there that like machine-gunsto let that one slide by unopposed.)

    So, there is my input and thoughts on the issues in question. As for the last one, I will look into it when I have more time and get back to you if I fine something pertinent.


    Take care and be safe,

    Doc


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    DocNTexas wrote:
    SA-TX wrote:
    Doc or anyone else who may have a friend who is a District Attorney, County Attorney, legislator, or anyone who can ask the AG's office for an opinion: this is what we need for several items. These are items which are unclear and/or are being interpretedly differently by different governmental agencies.

    1) Can you carry pre-1899 handguns with no retrictions from Penal Code section 46?

    2) Can government entities make an entire building off-limits when a court or court office is anywhere there (perhaps many floors away)?

    3) Can meetings of government bodies post a 30.06 sign per 46.035 after their ability to post was circumscribed in the 30.06 statute?

    4) Use of SSN is regulated by federal law. Several AG/courts have opined that the mandatory collection of it is NOT legal as related to licenses to carry, purchase, or own firearms. Thus, is Texas' requirement in the Family Codein conflictunder U.S.C 666? A good argument can be made that a CHL does not fall into any of the categories there.

    5) Given that the Legislature's authority in the TX Constitution is to "regulate the wearing of arms" and the TX Supreme Courtlong ago determined this didn't extend to long guns, arerestrictions on mere possession (among other things)in Penal Code 46.03 "Prohibited Weapons" of machine guns, short-barreled rifles & shotguns, spud guns, etc. unconstitutional?

    I've sent a paper letter (not email) to State Rep Joe Driver, Law Enforcement chairman asking that he ask for an AG's opinion. I encourage you to do the same as well as your State Representative and Senator. We need these items resolved so that CHL-holders and government bodies alike understand their obligations under law.

    Thanks, SA-TX

    Sorry, I thought I had replied to this one but I guess I never got back to it.

    As for the pre-1899 question, well, nuff said there in the other thread.

    On to question number 2. I too have posed this question to several people in positions to address this subject. I have seen entire buildings posted that contain no more than an office of the court and I have seen buildings where only the floor the court was located on was posted. I have asked 2 different DA's and got opposing answers. One said only the floor the court or court offices are on and the other said the whole building. I asked a District court judge that I know and he said he believed it meant only the floor, but added that it was probably arguable either way and felt that if actually challenged the high court would probably side with the whole building idea. (He suggested the legislature change the law to exclude the courtroom only - I like this guy).

    So, to answer your question, beats the hell out of me. Even the court officials cant agree, so how can we know for sure. This is just another place that we need some clarification from the legislators.

    #3 As for posting meeting of government entities, 30.06 changed that, but it did not prevent posting meeting. In addition to the creation of the text of 30.06, 46.035 (i) was added, which states that 46.035 (b)(4), (b)(5), (b)(6) and (c) do not apply unless notice is given under 30.06. So, they can post meeting of the governmental regulating body, but nothing else. 30.06 also allows for posting of any government property otherwise prohibited under 46.02, 46.03or 46.035.

    Now, on to the SSN dilemma (#4). Texas does not use SSN's to log or track individuals, it uses them to identify the individual for the purpose of background investigation through the federal system, which uses the SSN for identification andrequires theSSN to be submitted for their search. Since the federalcheck is required by law and the use of ones SSN is required to perform thecheck,the collection ofones SSN islegal as long as it is not used by the state to identify you for state purposes.

    #5 As for the prohibited weapon section being illegal, well, I will have to re-read the Texas Supreme Court ruling on the long-gun issue and a few other items to make an honest statement or opinion there. If memory serves me, I think these weapons are covered elsewhere and were not protected my the long-gun ruling, but, I need to look into that again. It has been too long. I feel fairly certain that is a big enough issue to have been challenge by now if it were not as least fairly clearly defined and seeming legal. (Too many rich guys out there that like machine-gunsto let that one slide by unopposed.)

    So, there is my input and thoughts on the issues in question. As for the last one, I will look into it when I have more time and get back to you if I fine something pertinent.


    Take care and be safe,

    Doc
    According to Charles Cotton, an attorney near Houston and the host of TXCHLFORUM.com, it was his language "building or part of a building" and he is understandably steamed at the interpretations. He definitely meant for it to be only the area which are courts or court offices. Sometimes that IS the whole building. Most of the time it is just an area or two. As for making it just "the courtroom" and not "offices", that's what the law said until a session or two back when, presumably, court staff/prosecutors lobbied for the "offices" provision. I think this is definitely a case of unintended consequences. Yes, DAs and others expressing their views about the law that the legislature passes is dangerously close to an abuse of discretion and grounds for removal from office and possibly disciplinary action by the Bar.

    I believe that the restriction in 30.06 came AFTER 36.035(i). That is, churches, amusement parks, hospitals, government meetings, etc. used to be prohibited places. No 30.06 necessary. Then it was loosened with (i) such that they are only prohibited if they post 30.06. THEN, 30.06 was tightened to exclude government bodies from using it. Thus, can they really still avail themselves of it? I think this is an open question. If they still can, it should be changed. Why shouldn't CHL-holders be able to carry at a city councel meeting? Look what happened in Kirkwood, MO? Of course, most city hall buildings have a municipal court or court office ...



    On #4 (the SSN issue), I would challenge your premise a bit. Federal law restricts the way SSNs are used. You MUST fall under one of the exceptions for a government agency to use it. Take at look in U.S.C 666. You'll find a list of "licenses" for which the collection of SSN is mandatory so as to have an effecient child-support collection/penalty mechanism. Firearms licenses are not there (but hunting and fishing are). Some state AGs/judges have ruled that purchase/carry/possession aren't covered. Some have concluded the opposite. As for the federal check system, providing an SSN is NOT required. I repeat, it is NOT and the BATFE forms are marked as such. Take a look at the standard transfer form. SSN is marked as optional. In fact, I have NEVER filled it in when buying a gun. I also just applied for an FFL C&R license. The SSN box is again labeled as optional. In short, the use of an SSN is not needed for federal firearms or NICS checks. It could slow down the processing of it if you don't fill it in, but it isn't grounds for denial. The reason why it is marked as optional is that the privacy law make it mandatory to state whether providing it is mandatory or optional and why and how it will be used.

    As for machine guns, there is a "defense to prosecution" that it is registered with under the NFA. In practice, because most prosecutors have good sense, that means there aren't cases in the courts.However, one of our rogueDAs could still technicallyprosecute someone for that and then make them demonstrate all of the BATFE paperwork in court and throw it to the jury. Conceivably, a jury filled with anti-gun soccer moms could find you guilty. After all, the fact you have it legally under federal law is only a "defense to prosecution". The greater question is whether or not Legislature has any authority to regulate long guns. If anyone has access to the legal research system that contains TX Supreme Court / Court of Criminal Appeals decisions going way back and can dig up some precedent, I've love to read them.

    Thanks for adding to the discussion Doc,

    SA-TX

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    SA-TX wrote:
    According to Charles Cotton, an attorney near Houston and the host of TXCHLFORUM.com, it was his language "building or part of a building" and he is understandably steamed at the interpretations. He definitely meant for it to be only the area which are courts or court offices. Sometimes that IS the whole building. Most of the time it is just an area or two. As for making it just "the courtroom" and not "offices", that's what the law said until a session or two back when, presumably, court staff/prosecutors lobbied for the "offices" provision. I think this is definitely a case of unintended consequences. Yes, DAs and others expressing their views about the law that the legislature passes is dangerously close to an abuse of discretion and grounds for removal from office and possibly disciplinary action by the Bar.

    I believe that the restriction in 30.06 came AFTER 36.035(i). That is, churches, amusement parks, hospitals, government meetings, etc. used to be prohibited places. No 30.06 necessary. Then it was loosened with (i) such that they are only prohibited if they post 30.06. THEN, 30.06 was tightened to exclude government bodies from using it. Thus, can they really still avail themselves of it? I think this is an open question. If they still can, it should be changed. Why shouldn't CHL-holders be able to carry at a city councel meeting? Look what happened in Kirkwood, MO? Of course, most city hall buildings have a municipal court or court office ...



    On #4 (the SSN issue), I would challenge your premise a bit. Federal law restricts the way SSNs are used. You MUST fall under one of the exceptions for a government agency to use it. Take at look in U.S.C 666. You'll find a list of "licenses" for which the collection of SSN is mandatory so as to have an effecient child-support collection/penalty mechanism. Firearms licenses are not there (but hunting and fishing are). Some state AGs/judges have ruled that purchase/carry/possession aren't covered. Some have concluded the opposite. As for the federal check system, providing an SSN is NOT required. I repeat, it is NOT and the BATFE forms are marked as such. Take a look at the standard transfer form. SSN is marked as optional. In fact, I have NEVER filled it in when buying a gun. I also just applied for an FFL C&R license. The SSN box is again labeled as optional. In short, the use of an SSN is not needed for federal firearms or NICS checks. It could slow down the processing of it if you don't fill it in, but it isn't grounds for denial. The reason why it is marked as optional is that the privacy law make it mandatory to state whether providing it is mandatory or optional and why and how it will be used.

    As for machine guns, there is a "defense to prosecution" that it is registered with under the NFA. In practice, because most prosecutors have good sense, that means there aren't cases in the courts.However, one of our rogueDAs could still technicallyprosecute someone for that and then make them demonstrate all of the BATFE paperwork in court and throw it to the jury. Conceivably, a jury filled with anti-gun soccer moms could find you guilty. After all, the fact you have it legally under federal law is only a "defense to prosecution". The greater question is whether or not Legislature has any authority to regulate long guns. If anyone has access to the legal research system that contains TX Supreme Court / Court of Criminal Appeals decisions going way back and can dig up some precedent, I've love to read them.

    Thanks for adding to the discussion Doc,

    SA-TX
    Well, if Charles wrote it, then he should know what was intended, unfortunately, as we discussed earlier, our courts actually set the interpretation and often do so in the most ridiculous ways. At least my judge friend sees it the way Mr. Cotton intended it....That is one level headed guy in the bunch. Unfortunately, it will take a rewrite to clarify the intent now.

    As for the 30.06 issue, it really does not matter what came first or last, it only matters what is on the books at this time. Unless a newer law directly contradicts an existing law, or the old law is stricken or modified as part of thethe enactment of the new law, both laws remain active and enforceable. With that in mind, lets look at the laws in question. PC 30,06 (e) states:


    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.
    At the same time, 46.035 (i) states:


    (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.

    (With 46.035 (c) referring to carry atany meeting of a governmental entity.)
    Now, since 30,06 (e) allows for prohibition under 46.03 and 46.035 and since 46.035 (c) is still a legitimate law on the books, not having been rescinded and not being in conflict with the provisions of 30.06 (e) or vise versa, 46.035 (c) is still enforceable as long as they meet the requirements of 46.035 (i), which is also still legally on the books and enforceable.

    In short, yes, as long as the governmental entity properly posts their meetings, they can enforce it. Nothing in 30.06 nullifies the provisions of 46.035. While one might successfully argue that it prevents them frombeing filed on for criminal trespass as a CHL holder(which it doesn't), it does not prevent you from being filed on for unlawful carry by a license holder. They are actually two separate offenses. While 46.035 requires the provisions of 30.06 be met in order to be enforceable, provisions relating to the criminal trespass law do not affect the provisions of 46.035.

    On the subject of the use of the SSN by the DPS for the CHL process, I based my position on information obtained directly from an employee in the CHL division of whom I am acquainted, and she told me that they were required to include a persons SSN with their requests to the feds, which is the only reasonthey require you provide it. She has always been straight forward and knowledgeable (and has evenprovided me some valuable inside info on occasions), so I am incline to believe her until I find out otherwise. I agree that U.S.C 666 severely restricts the use of SSN's, but if the requirement actually does come from the feds, then the state is not doing anything wrong by complying. I will not say you are wrong, I do not know personally, however, not being on the inside, I am inclined to take the word of someone who is. Besides, I can find a lot more to worry about than my SSN. That is not secret information.Anyone can obtainanyone else's SSN very easily, so what is the big deal. I am more concerned about my phone number getting out.

    As for the machine gun issue, I have yet had the time to delve into it, but I will at first opportunity. Since I am the proud owner of one (a cute, funbut otherwise worthless 9mm buzz-saw that I acquired many moons ago when they were still relatively cheep), and I hope to obtain a couplemore some day,I certainly hold an interest in this subject. As you pointed out, that "defense to prosecution" clause is one I personally despise the use of, because it leaves the door wide open to prosecution at any time. I read that phrase to say, "you are technically guilty, but we might let you off if we agree with your reasons at the time". That is certainly not the way to writealaw. Either it is or it isn't! Don't leave it up to whoever is in the office that day.

    As I said, I will look intothis subjectat first opportunity and render an opinion at that time (for what that is worth ).

    Until then, I will take your word on that subject.

    Take care and be safe,

    Doc



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