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HOUSE RESEARCH HB 2664
ORGANIZATION bill analysis 5/1/2009 Ritter
SUBJECT: Defense to prosecution if a bar fails to post handgun ban warning sign
COMMITTEE: Public Safety — favorable, without amendment
VOTE: 9 ayes — Merritt, Frost, Burnam, Driver, P. King, Lewis, Mallory Caraway, Rodriguez, Vo; 0 nays
WITNESSES:
For — (Registered, but did not testify: Thorton Burfine; Steven Johnson; Tara Mica, National Rifle Association; Raymond H. Smith; Alice Tripp, Texas State Rifle Association) Against — None
BACKGROUND:
Under Penal Code, sec. 46.035, concealed handgun license holders commit an offense if the they intentionally, knowingly, or recklessly carry handguns, regardless of whether the handgun is concealed, on the premises of a business that has an Alcoholic Beverage Code permit for the sale or service of alcoholic beverages for on-premises consumption and derives 51 percent of more of its income from on-premise alcohol sales. A violation of this provision is a third-degree felony (two to 10 years in prison and an optional fine of up to $10,000). Government Code, sec. 411.204 requires that a business that derives 51 of its income from on-premise sales or service of alcoholic beverages must display a sign at its entrance warning that it is a crime to carry to carry a handgun on the premises. The sign must give notice in both English and Spanish, and the warning must appear in contrasting colors with block letters at least one inch in height and must include the number "51" printed in solid red at least five inches in height.
DIGEST:
HB 2664 would amend Penal Code, sec. 46.035 to provide a defense to prosecution of a concealed handgun license holder who carried a gun into a bar if the bar failed to display the warning sign required by Government Code, sec. 411.204. The bill would apply to convictions on or after the bill’s September 1, 2009, effective date.
HB 2664
House Research Organization

SUPPORTERS SAY:
HB 2664 would provide a fair way to challenge the charge of unlawfully carrying a weapon where alcoholic beverages are served. A defense to prosecution is an intermediate step between an affirmative defense, when the defendant has to raise and prove the legal issue, and an exception to prosecution, when the prosecutor must raise and refute the issue even if the defense does not raise the objection. Law-abiding handgun owners are accustomed to seeing warning notices posted at businesses where they cannot carry their weapon. Without these signs, concealed handgun license holders have no way to know whether the business derives 51 percent of its income from the on-premise sale of alcohol and could unwittingly become liable for severe penalties. They should be able to introduce into evidence that the sign was not posted properly and argue they did not violate the law. HB 2664 could provide some savings to the state by reducing the number of those facing time in prison. Prosecuting felonies and incarcerating those convicted of such offenses is expensive.

OPPONENTS SAY:
A defense to prosecution would not necessarily assure that a concealed handgun license holder would escape punishment for carrying a handgun into a bar. It might be difficult to prove that at the time the warning sign was not properly posted. Police still could arrest the person, and prosecutors could file charges on lesser offenses, such as disorderly conduct or public intoxication. While these other violations do not carry the same penalties as a third degree felony, concealed handgun license holders still could face suspension of their permits for convictions of other offenses or have their handguns confiscated and not returned.

NOTES:
The companion bill, SB 729 by Hegar, passed the Senate by 31-0 on April 9 on the Local and Uncontested Calendar and has been referred to the House Public Safety Committee.