Discussion of Pending Bills

[txinvestigator]

HB103 looks great!

[nitrogen]

So if I read HB103 correctly, it doesn't say that someone that's no-billed by a GJ can't be sued civilly, but they can recover any money they lost because of the suit?

Is this a good thing? What's to stop someone from suddenly declaring bankrupcy or just not paying? You're still screwed then.

[kauboy]

It's going to be worded as such so that if Billy is shot while commiting a crime, as long as the shooting is ruled as justifiable, his family cannot sue in civil court against the shooter. It will also do away with the "retreat first" junk (obviously), but that is not what I consider to be the biggest part of the bill.

I personally don't understand the Senate Bill though. Pres Bush arleady signd at the Federal level a law that does the same thing. In fact, I posted a link on the forums about it. I think its under the General CHL Discussion section and called something like "Never again".

[Kalrog]

Thanks for the news, Charles! I look forward to seeing more of these. Nice movement in the right direction.

[txinvestigator]

It's going to be worded as such so that if Billy is shot while commiting a crime, as long as the shooting is ruled as justifiable, his family cannot sue in civil court against the shooter. It will also do away with the "retreat first" junk (obviously), but that is not what I consider to be the biggest part of the bill.

.

\

Thats not in the bill;

SECTIONA4.AASection 83.001, Civil Practice and Remedies
Code, is amended to read as follows:
Sec.A83.001.AAAFFIRMATIVE DEFENSE. It is an affirmative
defense to a civil action for damages for personal injury or death
that the defendant, at the time the cause of action arose, was
justified in using force or deadly force under Subchapter C,
Chapter 9 SECTIONA5.AAChapter 83, Civil Practice and Remedies Code, is
amended by adding Section 83.002 to read as follows:
Sec.A83.002.AACOURT COSTS, ATTORNEY ’S FEES, AND OTHER
EXPENSES. A defendant who prevails in asserting the affirmative
defense described by Section 83.001 may recover from the plaintiff
all court costs, reasonable attorney ’s fees, earned income that was
lost as a result of the suit, and other reasonable expenses.

[stevie_d_64]

Be nice if SB112 would actually take effect "before" next hurricane season, at the very least...

A lot could happen between June 1, 2007 and September 1, 2007...

But I do like what I see getting filed...

[Charles L. Cotton]

So if I read HB103 correctly, it doesn't say that someone that's no-billed by a GJ can't be sued civilly, but they can recover any money they lost because of the suit?

Is this a good thing? What's to stop someone from suddenly declaring bankrupcy or just not paying? You're still screwed then.

It's the best that can be done and I'm not referring to political issues or anything like that. It is not possible to prohibit the filing of a lawsuit, unless you are granted immunity. Even then a suit can be filed, but it will be dismissed via a motion for summary judgment. A good example is sovereign immunity for the government that prohibits suits against governmental bodies. The Tort Claims Act waives this immunity in very limited circumstances and allows people to sue the government over certain matters like contract disputes, automobile accidents, etc.

There is no realistic way to craft an immunity for someone shooting another person. CRPC §81.001 creates an affirmative defense for anyone who used force, including deadly force, pursuant to TPC Ch. 9, Sub-Chapter C, but it has to be judicially determined somewhere that the person lawfully used deadly force, instead of committing a murder.

While it is true that the person shot, or their survivors, could file suit then file bankruptcy if attorney fees and expenses are awarded against them pursuant to CRPC §83.002, this is very unlikely. No plaintiff's attorney in their right mind is going to take a case like this, advance expenses, then get a summary judgment granted against them and lose every dime they put into the case. I know the media and bogus groups have stirred up a frenzy against frivolous lawsuits, but in truth they are very rare. I'm not about to take a case knowing I have little or no chance to win and neither is any other attorney.

A final note, with the new presumption of reasonableness in HB103, it is even more likely that suit will not be filed and, if it is, it will be easier for the defendant to get a summary judgment and greatly reduce the defense costs.

Chas.

[kauboy]

It's going to be worded as such so that if Billy is shot while commiting a crime, as long as the shooting is ruled as justifiable, his family cannot sue in civil court against the shooter. It will also do away with the "retreat first" junk (obviously), but that is not what I consider to be the biggest part of the bill.

.

\

Thats not in the bill;

SECTIONA4.AASection 83.001, Civil Practice and Remedies
Code, is amended to read as follows:
Sec.A83.001.AAAFFIRMATIVE DEFENSE. It is an affirmative
defense to a civil action for damages for personal injury or death
that the defendant, at the time the cause of action arose, was
justified in using force or deadly force under Subchapter C,
Chapter 9 SECTIONA5.AAChapter 83, Civil Practice and Remedies Code, is
amended by adding Section 83.002 to read as follows:
Sec.A83.002.AACOURT COSTS, ATTORNEY ’S FEES, AND OTHER
EXPENSES. A defendant who prevails in asserting the affirmative
defense described by Section 83.001 may recover from the plaintiff
all court costs, reasonable attorney ’s fees, earned income that was
lost as a result of the suit, and other reasonable expenses.

Ok, maybe I should have said "his family cannot win in civil court against the shooter". Better?

[nitrogen]

Ok, awesome.

Thanks for explaining that to us!

[Charles L. Cotton]

I personally don't understand the Senate Bill though. Pres Bush arleady signd at the Federal level a law that does the same thing.

State action is also needed to close a potential loophole. The federal statue cannot cover state or local LEO's except under limited circumstances such as those receiving federal funds. Here is the federal statute:

`(a) Prohibition on Confiscation of Firearms- No officer or employee of the United States (including any member of the uniformed services), or person operating pursuant to or under color of Federal law, or receiving Federal funds, or under control of any Federal official, or providing services to such an officer, employee, or other person, while acting in support of relief from a major disaster or emergency, may-- . . .

This is as far as Congress can legally go, so it's up to the states to close the loophole, as does SB112.

I should also note that SB112 actually provides more protection beyond closing this loophole. The federal statute makes an exception for "temporary surrender" of a firearm as a condition for boarding an evacuation vehicle. Here is the language:

`(b) Limitation- Nothing in this section shall be construed to prohibit any person from requiring the temporary surrender of a firearm as a condition for entry into any mode of transportation used for rescue or evacuation during a major disaster or emergency.

SB112 does not contain this exception. So if you are treading water with your pistol in your holster, no Los Angeles County Deputy Sheriff can say "give me your gun if you want to get in the boat." Yeah, I'm still pretty miffed about those guys!

Chas.

[kauboy]

Thank you very much Charles. That clears it up perfectly. I completely forgot that while it was the New Orleans local PD that asked for it, it was Federal agents and military that actually performed the confiscation.

As for you second point, does that only apply to local rescue workers? If its a military rescue, say the National Gaurd, can they still hold to that limitation and restrict access without temporary surrender. Or does it change as soon as they cross state lines?

[kauboy]

I read that one yesterday since another memeber posted it elsewhere. I am concerned about something though. My employer's policy states: "Regardless of the laws of a particular jurisdiction, the possession of any dangerous substances, including firearms, explosives and other weapons, is strictly prohibited in the workplace or elsewhere while conducting company business."

Can they disregard the law? If this goes into effect, will they be forced to change this policy?

Yes, I do realize that the "workplace" is not technically the parking lot, and I won't be "conducting" business from there, so it doesn't really apply, but a good lawyer could sure make it stick.

[nitrogen]

Law and company policy are different things.

They can fire you for violating company policy, but thye cant file tresspass charges.

[kauboy]

Yeah but the proposed law states:

Sec. 411.203. RIGHTS OF EMPLOYERS; LIMITATION ON LIABILITY.
(a) This subchapter does not prevent or otherwise limit the right
of a public or private employer to prohibit persons who are licensed
under this subchapter from carrying a concealed handgun on the
premises of the business.
(b) Except as otherwise provided by this subsection, a
public or private employer may not establish, maintain, or enforce
any policy or rule that has the effect of prohibiting a person
licensed under this subchapter from transporting or storing a
concealed handgun in a locked vehicle in any parking lot, parking
garage, or other designated parking area. A private employer may
prohibit an employee from transporting or storing a concealed
handgun in a vehicle in a parking lot, parking garage, or other
parking area the employer provides for employees if:
(1) the parking lot, garage, or other area is
completely surrounded by a gate and is not open to the public; and
(2) ingress to and egress from the parking lot,
garage, or other area are monitored by security personnel.
(c) A public or private employer is not liable in a civil
action for damages resulting from an occurrence involving the
possession of a concealed handgun by a person licensed under this
subchapter.
(d) This section does not authorize a person licensed under
this subchapter to carry a concealed handgun on any premises where
the carrying of a concealed handgun is prohibited by state or
federal law.

So they aren't supossed to have any policy that restricts it. That seems to overstep whatever they may wish to include in their company policy. Doesn't it? This would mean that I cannot be fired for storing my firearm in my vehicle. Of course, being in Texas, I would still be fired(stupid "At will" state ).

[txinvestigator]

Law and company policy are different things.

They can fire you for violating company policy, but thye cant file tresspass charges.

Actually this law would restrict the type of policy they could legally have.

http://www.capitol.state.tx.us/tlodocs/ ... 00220I.doc