Hiring a lawyer

[bradfromearth]

I am seriously considering hiring a lawyer and having them pursue the matter of the delays I am experiencing.

From my understanding Texas is a "Shall Issue" state and not a "May Issue state". By definition I would assume that technically if your background check has passed there are no other considerations or holdups other than the administration process. In my mind that makes this a very mechanical process with little to no grey area. So then we should consider what could the hold up be ? Licking a stamp, sending an email, a fax? I can tell you from personal experience that doing a background check in the Harris county facilities will take you LESS THAN 5 MINUTES. I have personally gone down to Harris county and used the exact same system to pull up my own records. They have a place where you can use their system for free. If you want a certified report that will cost you 5 dollars. I did this on myself to ensure that I qualified before I sent in my packet. (I have an old Misdemeanor)

There is someone some where that is falling asleep at their desk waking up for lunch and then waking up again to go home. The folks that work in these kinds of positions have more job security than anyone could ever dream of in the private sector.

The most important question to answer before I do this is will a certified letter from an attorney help. I have heard that they must respond within 60 days as to "Yes you are getting a permit" or "No you are not and this is why".

Is this delay a violation of our civil rights even if it is very slight?
Would getting an attorney do anything?
How many of us are past the 60 day mark and a candidate for a class action?

Any help on this would be greatly appreciated.

Brad

Please vote on the "plastic poll" where are you in the waiting period...
http://www.texasshooting.com/TexasCHL_F ... 42&t=20764

[CainA]

I'm past 60(days), for what it's worth.

-Cain

[agbullet2k1]

You will find many "DPS is commiting a crime!!!!" threads here. Most of the members here waited over 60 days, and in some cases over a 100. And in 1 particular case i am very familiar with, 225 days and counting. Lawyer isn't going to do much. Our most gracious admin Mr. Cotton is a lawyer, and having intimate knowledge of the inner workings of the process, he has pretty much advocated going the state rep and governor route unless you want to waste time and money. Besides, a lawyer isn't going to get it for you tomorrow, or at this point any time before the end of the year, so what time will you really be saving yourself?

The correct and best way to fix this is get changes made to the statutes which gives DPS the resources it needs to deal with increased applications and slow background checks. I know that doesn't help you or anyone else now, but it will help you when renewals come around. Also, the card printing is outsourced to the same place that does DLs, so depending on the load, that could take some time. We've all been there. I waited 101 days myself, and that was with personal calls from my rep and Gov. Perry's office.

[RPBrown]

FWIW, it may be delays from other areas such as FBI checks or any other city/county LEO agency. I say this only because there are some here getting them back in 45-60 days. My renewal came back in 52 days.

[LarryH]

In addition, it has been posted here that Harris County has ONE trooper doing the background checks, and she was detailed to the coast for several weeks after Ike.

[HGWC]

I am seriously considering hiring a lawyer and having them pursue the matter of the delays I am experiencing.

Good for you. I think that's a great idea. Texas should be leading the way challenging these laws in court.

From my understanding Texas is a "Shall Issue" state and not a "May Issue state".

Shall issue, when ever we feel like getting around to it, if ever.

By definition I would assume that technically if your background check has passed there are no other considerations or holdups other than the administration process. In my mind that makes this a very mechanical process with little to no grey area. So then we should consider what could the hold up be ? Licking a stamp, sending an email, a fax? I can tell you from personal experience that doing a background check in the Harris county facilities will take you LESS THAN 5 MINUTES. I have personally gone down to Harris county and used the exact same system to pull up my own records. They have a place where you can use their system for free. If you want a certified report that will cost you 5 dollars. I did this on myself to ensure that I qualified before I sent in my packet. (I have an old Misdemeanor)

It's the background check that's holding you up. If you call, they should be able to confirm that. I expect that 5 minute number is about right. We have one DPS trooper doing all the local BC's for all of Harris county, and how many people per day taking the class all over Harris county?

The most important question to answer before I do this is will a certified letter from an attorney help. I have heard that they must respond within 60 days as to "Yes you are getting a permit" or "No you are not and this is why".

You're not just waiting on the one trooper to go through all the applications in front of you. You're also waiting on her to process all of the applications that are cutting in front of you getting "expedited." Contact your state representatives. That might speed things along more than you think.

That's right. If you got the hurricane IKE letter, they're in violation of that clause in Gov. code 411.177 too. They can't allow the BC to take more than 60 days period. If after they receive the BC, less than 60 days, they then still need additional time, then they must send you a letter stating their excuse, and an estimate of how much longer it's going to take.

They claim they're within the law here, but of course they aren't. The BC is later than 60 days, where the letter writing doesn't even apply. Even if they had the BC within 60 days, they must include an estimate of the delay. Stating the delay is indefinite doesn't cut it. Plus, at 180 days it's an implicit denial, which they can't do in good faith without cause. Also, one trooper to process all applications in Harris county is not a good faith effort, which they're required to put forth.

Is this delay a violation of our civil rights even if it is very slight?

Yes, absolutely. They're violating your rights under state law, the state constitution, and the US constitution. No doubt about it.

Would getting an attorney do anything?

That depends on what you want to accomplish. If you want to challenge the law then yes, I think it would. It will take time and money, but eventually, I think you can win. If you want to hurry your application along, then no. It's just a matter of getting your application cut in front of everyone else that's waiting in line. You can get in the line of cutters for free at your representative's office. That's apparently how I got mine last week.

[KaiserB]

And what would the lawyer do?

You are talking about the area of enforcing DPS to perform their jobs. The oversight for DPS currently resides with the executive branch in TX. So unless you lawyer is Rick Perry, or the Lt. Gov. you are probably just tossing money down a hole.

[HGWC]

And what would the lawyer do?

You are talking about the area of enforcing DPS to perform their jobs. The oversight for DPS currently resides with the executive branch in TX. So unless you lawyer is Rick Perry, or the Lt. Gov. you are probably just tossing money down a hole.

It's a matter of the agency doing their job that is defined by the legislature and state law. Both the legislative and judicial branches of the government also have responsibility for oversight of the DPS. The legislature has tried and failed with the specific laws in question. A lawyer and legal action in the courts is a reasonable course of action in this case.

[wackjum]

Without touching on the issue of how long it takes for a lawsuit to work its way through the system, a lawsuit is not practical.

Most lawsuits involve money damage. For example, if you were promised benefits from an administration of the Government, and you never received them because of a delay, you could try and sue to speed the process and get back benefits as well. In this case, you would sue for an injunction.

I am not sure there's harm in the case of a delayed CHL permit. "Shall issue" is inconsequential because you will eventually get yours. If you qualified and were denied a permit, then you would have standing to sue.

I haven't read the statute, but I am guessing that there are words in there with the effect of "good faith" or that the agency will take "reasonable steps" to issue a permit within the time span. Unless you can show egregious delay (I'm talking years), you probably don't have enough to get a court to issue an injunction. The agency has excuses (funding, manpower, Hurricane Ike). However contrived they might sound, it is all strikes against your case. The burden of proof is preponderence of the evidence. You would have to show some kind of policy in place at DPS to not process CHL's quickly to overcome the evidence provided by Ike, manpower, etc.

[HGWC]

Most lawsuits involve money damage. For example, if you were promised benefits from an administration of the Government, and you never received them because of a delay, you could try and sue to speed the process and get back benefits as well. In this case, you would sue for an injunction.

IANAL, but there are lot's of other things you can sue for in addition to money.

I am not sure there's harm in the case of a delayed CHL permit. "Shall issue" is inconsequential because you will eventually get yours. If you qualified and were denied a permit, then you would have standing to sue.

You need to read the law. After 180 days, even the legislature recognized it's an implicit denial. It doesn't just say shall issue. It says shall complete the BC in 60 days.

I haven't read the statute, but I am guessing that there are words in there with the effect of "good faith" or that the agency will take "reasonable steps" to issue a permit within the time span.

It says good faith in administering the program so all qualified applicants are issued a license. The time frame for doing so is strictly fixed.
With one person doing the application processing for all of Harris county and lots of people being implicitly denied with over 180 day delays for at least all of 2008, I think they'd have a hard time calling that good faith.

Unless you can show egregious delay (I'm talking years), you probably don't have enough to get a court to issue an injunction. The agency has excuses (funding, manpower, Hurricane Ike). However contrived they might sound, it is all strikes against your case. The burden of proof is preponderence of the evidence. You would have to show some kind of policy in place at DPS to not process CHL's quickly to overcome the evidence provided by Ike, manpower, etc.

This isn't a fishing license we're talking about. How long can you deny a fundamental constitutional right before it becomes egregious? The fact that the policy amounts to an indefinite delay makes it egregious regardless of the delay in each case.

Just like in the Nordyke and Chicago gun cases, it takes one case to raise the 2nd amendment incorporation issue. At the same time, in the context of incorporation, the Texas laws won't stand up to any standard of review. The law amounts to a total and indefinite ban on possession of handguns in public along with many other restrictions that won't stand up to any standard of review against a fundamental right. In one lawsuit, we could have the same issues as in Chicago on the table.

[wackjum]

Firstly, there is no fundamental Constitutional right to carry your weapon concealed about with you. If you are relying on the Heller decision, which has been the only signficant judicial interpretation of the 2nd amendment, there is only a right to possession (ownership).

I realize you are upset about waiting. Frankly, so am I. I think I probably have been waiting longer then you (since June). I also realize you are not a lawyer. Granted, my specialty is criminal law. But I was hoping to offer my legal perspective on why a lawsuit is not the best course of action to take.

You can disagree with me, and you can always hire a lawyer to try and expedite the process, but my opinion is that it won't work.

Sec. 411.177. ISSUANCE OR DENIAL OF LICENSE. (a) The department shall issue a license to carry a concealed handgun to an applicant if the applicant meets all the eligibility requirements and submits all the application materials. The department may issue a license to carry handguns only of the categories indicated on the applicant's certificate of proficiency issued under Section 411.189. The department shall administer the licensing procedures in good faith so that any applicant who meets all the eligibility requirements and submits all the application materials shall receive a license. The department may not deny an application on the basis of a capricious or arbitrary decision by the department.

(b) The department shall, not later than the 60th day after the date of the receipt by the director's designee of the completed application materials:
(1) issue the license;
(2) notify the applicant in writing that the application was denied:
(A) on the grounds that the applicant failed to qualify under the criteria listed in Section 411.172;
(B) based on the affidavit of the director's designee submitted to the department under Section 411.176(b); or
(C) based on the affidavit of the qualified handgun instructor submitted to the department under Section 411.189(c); or
(3) notify the applicant in writing that the department is unable to make a determination regarding the issuance or denial of a license to the applicant within the 60-day period prescribed by this subsection and include in that notification an explanation of the reason for the inability and an estimation of the amount of time the department will need to make the determination.
(c) Failure of the department to issue or deny a license for a period of more than 30 days after the department is required to act under Subsection (b) constitutes denial.
(d) A license issued under this subchapter is effective from the date of issuance.

[wackjum]

Just like in the Nordyke and Chicago gun cases, it takes one case to raise the 2nd amendment incorporation issue. At the same time, in the context of incorporation, the Texas laws won't stand up to any standard of review. The law amounts to a total and indefinite ban on possession of handguns in public along with many other restrictions that won't stand up to any standard of review against a fundamental right. In one lawsuit, we could have the same issues as in Chicago on the table.

Your problem is with the law or the way it is being carried out? There doesn't seem to be anything wrong with the law. I think we are fortunate to live in a state like Texas that has shall issue, as opposed to may issue.

I have already addressed this in my previous post, but there is no fundamental right to be able to carry your gun around with you. At least not at the 2nd amendment level.

Once you realize that a CHL in Texas is a privilege and not a right, you might understand why your case is not very strong.

If it was an inalienable right, government cannot regulate it much. There are only a handful of these rights. Freedom of speech and expression, the right to peacefully assemble, the right to free religion and association. Things that many people think are rights, such as driving, are privileges.

[KaiserB]

And what would the lawyer do?

You are talking about the area of enforcing DPS to perform their jobs. The oversight for DPS currently resides with the executive branch in TX. So unless you lawyer is Rick Perry, or the Lt. Gov. you are probably just tossing money down a hole.

It's a matter of the agency doing their job that is defined by the legislature and state law. Both the legislative and judicial branches of the government also have responsibility for oversight of the DPS. The legislature has tried and failed with the specific laws in question. A lawyer and legal action in the courts is a reasonable course of action in this case.

You, and/or your lawyer could file a suit but you would not have basis. Thus your case would get tossed. I agree you are being wronged in that the State is not "Shall Issuing" however you are not suffering damages, nor are you the oversight for the DPS. Unfortunately the only people with appropriate basis to are the Executive and Legislative Branches, and they are doing very little as they are not in session.

Just plan on 100 days, and do not trust any information you receive via the telephone from DPS. Just written correspondence.

[HGWC]

You, and/or your lawyer could file a suit but you would not have basis. Thus your case would get tossed. I agree you are being wronged in that the State is not "Shall Issuing" however you are not suffering damages, nor are you the oversight for the DPS. Unfortunately the only people with appropriate basis to are the Executive and Legislative Branches, and they are doing very little as they are not in session.

Other legal scholars and lawyers disagree with you. For example, over similar onerous restrictions, lawyers filed the Chicago suit. Here is what they have sued for, and in the end, they are very likely to win. One lawsuit in Texas could lead the nation in the same direction.

They claim numerous violations of constitutional rights, which is all the damage they need to claim the plaintiffs have suffered. "Plaintiffs are therefore entitled to declaratory and permanent injunctive relief against continued enforcement and maintenance of Defendants’ unconstitutional customs, policies, and practices." They seek "An order permanently enjoining Defendants, their officers, agents, servants, employees, and all persons in active concert or participation with them who receive actual notice of the injunction, from enforcing Chicago Municipal Code." Plus,

"2. Attorney Fees and Costs pursuant to 42 U.S.C. § 1988;
3. Declaratory relief consistent with the injunction;
4. Costs of suit; and
5. Any other further relief as the Court deems just and appropriate."

Just plan on 100 days, and do not trust any information you receive via the telephone from DPS. Just written correspondence.

Or be encouraged to hire an attorney and fight these unconstitutional laws and policies in court.

[HGWC]

Firstly, there is no fundamental Constitutional right to carry your weapon concealed about with you. If you are relying on the Heller decision, which has been the only signficant judicial interpretation of the 2nd amendment, there is only a right to possession (ownership).

The right is to keep and bear, not just keep. The 2nd amendment clearly doesn't limit that just to the home or private property. The Heller decision distinguishes who has the right to keep and bear and for what purpose, ie most everyone for individual self defense. It distinguishes that a total ban on keeping the most popular weapon for self defense in the home is unconstitutional under any standard of review, which implies that a similar ban on public keep and bear is also prohibited. No SCOTUS ruling says that states can completely ban a citizen from keeping and bearing a handgun in public. Until they do so, it's still a fundamental right.

I realize you are upset about waiting. Frankly, so am I. I think I probably have been waiting longer then you (since June). I also realize you are not a lawyer. Granted, my specialty is criminal law. But I was hoping to offer my legal perspective on why a lawsuit is not the best course of action to take.

Actually, I got mine this month after 111 days. I appreciate your advice, but one suit could raise the issue of incorporation in Texas just like it has in the Chicago case. In that same case, the combination of onerous CHL laws and total prohibition of open carry could be raised.

You can disagree with me, and you can always hire a lawyer to try and expedite the process, but my opinion is that it won't work.

I agree that if the intention is to expedite the process, a lawyer is not likely to help. However, an ongoing delay is not the only damage we've suffered.