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PC §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:...

(4) on the premises of a hospital licensed under Chapter 241, Health and Safety Code, or on the premises of a nursing home licensed under Chapter 242, Health and Safety Code, unless the license holder has written authorization of the hospital or nursing home administration, as appropriate;
(5) in an amusement park; or
(6) on the premises of a church, synagogue, or other established place of religious worship.

(c) 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 govern-mental entity.

(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.

is legally equivalent to the following.....

PC §46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER.....
(b) Unless the actor was given effective notice under Section 30.06, 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:...

(4) on the premises of a hospital licensed under Chapter 241, Health and Safety Code, or on the premises of a nursing home licensed under Chapter 242, Health and Safety Code, unless the license holder has written authorization of the hospital or nursing home administration, as appropriate;
(5) in an amusement park; or
(6) on the premises of a church, synagogue, or other established place of religious worship.

(c) 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 govern-mental entity.


If you only write out those 4 items. The fact that those 4 items were listed among others where the exclusionary clause (i) dosen't apply requires a separate sentence specifying those items. The entire paragraph could have been writen better however it doesnt change the fact that the paragraph(i) is not written as a 'defense to prosecution' sentence but as a straight forward and clear 'if these places meet 30.06 you cant and if they dont meet 30.06 you can'.

Black and white specificity makes it clear when prosecution is not pursuable by the district attorney. (whether he does or not is always dependent on his understanding of the law of course). Defense to prosecution allows a prosecutor to charge an offense against an alegation and leaves it to the defendent to use whatever defenses to the prosecution the law allows. We are seeing that in the Zimmerman case. The event meets the definition of either manslaughter or 2nd degree murder. It is up to Zimmerman to present evidence of self-defense which is the primary defense to the prosecution which always esculpates on those 2 charges.

For the purposes of my original question I dont see a practical difference as to application. If it is a 'defense to prosecution' I can try to carry in a nursing home and claim, if I am charged, that my defense is that the nursing home did not properly post notification. If it is straight forward, I should not be charged as violating anything since there is no law against it (assuming it was not posted) because the law specifically states that it allows it.

I guess this is semantics. But there is a difference between two laws where one says 'the actor may, unless...' and 'a defense to prosecution is...'

tex

I preface this with this...if there is another section of code either in the CHL law or otherwise that disputes what Im about to say then notwithstanding.....

Using the logic given, then any law or statement of affirmative code can be assumed to be a 'defense to prosecution'. ie If I go the speed limit then it is a defense against prosecution that I was going too fast.

Or...anyone under the age of 21 cannot drink. It is a defense to prosecution if the actor is 21 or over.

Any codified law implies that there is a defense to prosecution to an allegation of breaking the law by simply having obeyed the law, or code.

Here we have a assertion of legal fact stating that Subsections (b)(4), (b)(5), (b)(6), and (c) do not apply if the actor was not given effective notice under Section 30.06. In other words, the prohibition stated in (b)(4), (b)(5), (b)(6), and (c) does not exist for any actor not given effective notice under Section 30.06. Stated another way, the prohibition does and only exist for an actor given notice as per 30.06.

This is considerably different language from those paragraphs such as in paragraph (h)

(h) It is a defense to prosecution under Subsection (a) that the actor, at the time of the commission of the offense, displayed the handgun under circumstances in which the actor would have been justified in the use of deadly force under Chapter 9. Here, there is a conspicuous inclusion of 'defense to prosecution' language giving a mitigating exception to an otherwise prosecutable violation of the code.

I guess. That is the question isnt it.

And.....if the correct application of 30.06 is required to create the prohibition in the first place then the paragraphs (b)(4), (b)(5), (b)(6), and (c) dont even need to be listed in the first place as they fall into the 'everywhere else' catagory already austensibly covered by 30.06.

So. This is the reason I concluded that it seems to be that there is no more prohibition to entering a nursing home (as it relates to 30.06) as there is to entering a gas station or Walmart. The test for these 'everywhere else' locations seems to be this...
1. Have I had verbal notification that I cannot carry
2. Have I received written notification of the prohibition with 30.06 specifications, or
3. Is there signage that meets 30.06 specifications.

That is my thought process. Does anyone disagree with that?

tex

Thanks for the clarification. I will take issue with one point however.

Paragraph (i) is a stand alone paragraph under section 46.035 and does not mention 'defense to prosecution' in the language. This is a conspicuous absense since other paragraphs do use that language. It seems as straight forward language that the prohibitions listed above it simply do not apply.

tex

Under 46.035 Unlawful Carrying...

(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.

b4, b5, b6, and c deal with hospitals, nursing homes, amusement parks, churches, and meetings of government entities.

That seems to be clear. You CAN carry concealed in these locations unless there was notice as per 30.06 which includes verbal, written, and signage notification.

I get from this that, like any other non-listed location, unless there is 30.06 notification, you can carry into these locations.

Am I reading this correctly?

tex