A Defense to the Prosecution

[wgoforth]

This phrase is found several times in the Texas Penal Code, including in regards to several gun statutes. An LEO and I were discussing one such, and he said it is different than saying legal. That you might still be arrested for it, but this can be your "Kings X." ie, in regards to carrying at churches, amusement parks and hospitals... it is listed as being a defense to the prosecution if not posted with 30.06. My interpretation had simply been this was the wording added to amend the issue, rather than saying it may not be legal but you can argue this. I mean, if it is NOT legal, why would they be telling you how you can argue it.

[BrianSW99]

Churches, amusement parks, etc are not written as a "defense to prosecution." It's worded as "do not apply". The actual line is:

(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.

So, it's completely legal and not an arrestable offense if you were not given notice under 30.06.

Brian

[wgoforth]

Churches, amusement parks, etc are not written as a "defense to prosecution." It's worded as "do not apply". The actual line is:

(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.

So, it's completely legal and not an arrestable offense if you were not given notice under 30.06.

Brian

I was just doing that one from memory, my question is in regards from the phrase "a defense to the prosecution" found throughout the penal code on various matters.

[dev_null]

IANAL, but perhaps similar to "an affirmative defense." ("Yes, I did it but it's justified because...")

[jimlongley]

"A defense to prosecution" if I recall correctly, means that you can use it as a defense, at your trial, and it is affirmative in nature, which basically means that you are guilty until you can prove your defense.

IANAL but I have several friends that are, and that is the way I recall their explanations, maybe Charles could chime in on this one?

[Keith B]

All that means is you have an arguable defense if you are charged. A good example is the change made to 46.035 (k) that makes it a defense to prosecution if you carry into a 51% location and were not given effective notice per the rules on sign posting.

Hopefully this could be used as an argument to get a DA to not press charges, or at least drop them before they took you to court.

[wgoforth]

I guess I try to see everything as black or white (preacher in me). I am thinking, well...if it is legal, why can't the Penal Code just say it is? If not, say it's not. Unlike with the Bible, the legislatures who wrote this are here to ask what they meant by it.

[Keith B]

I guess I try to see everything as black or white (preacher in me). I am thinking, well...if it is legal, why can't the Penal Code just say it is? If not, say it's not. Unlike with the Bible, the legislatures who wrote this are here to ask what they meant by it.

I won't get into the what's black and white in the Bible and what's not discussion.

However, I think they are written that way on purpose. Section (i) defeinately says 'does not apply' and that makes it legal. I believe the one for section (k) that was put in place in 2007 was purposly written to give the option of giving the DA the capability of arguing that any reasonable person should know that a specific location was a 51% bar/tavern, gentlemens club, dance hall, etc, because it sells little to no food and makes their money only on drinks, visible sign or not.

[wgoforth]

I guess I try to see everything as black or white (preacher in me). I am thinking, well...if it is legal, why can't the Penal Code just say it is? If not, say it's not. Unlike with the Bible, the legislatures who wrote this are here to ask what they meant by it.

I won't get into the what's black and white in the Bible and what's not discussion.

However, I think they are written that way on purpose. Section (i) defeinately says 'does not apply' and that makes it legal. I believe the one for section (k) that was put in place in 2007 was purposly written to give the option of giving the DA the capability of arguing that any reasonable person should know that a specific location was a 51% bar/tavern, gentlemens club, dance hall, etc, because it sells little to no food and makes their money only on drinks, visible sign or not.

Ok, light bulb coming on. Thanks!

[MasterOfNone]

I would start with a thorough reading of PC CHAPTER 2. BURDEN OF PROOF:

http://www.statutes.legis.state.tx.us/d ... m/PE.2.htm" onclick="window.open(this.href);return false;

[wgoforth]

I would start with a thorough reading of PC CHAPTER 2. BURDEN OF PROOF:

http://www.statutes.legis.state.tx.us/d ... m/PE.2.htm" onclick="window.open(this.href);return false;

Ah, VERY good...thanks. EXACTLY what I was needing.

[C-dub]

Why oh why couldn't they have just deleted the parts or section that included churches, hospitals, and amusement parks?

[wgoforth]

Why oh why couldn't they have just deleted the parts or section that included churches, hospitals, and amusement parks?

That is how law is written, whether for good or bad. Our Constitution doesn't erase things when changed, they add an amendment, leaving the prior one. I agree it could make it easier, but it shows when a law was in place and when it wasn't, thus can't say "you broke this law in 1997" when it wasn't changed till 1999.

[Heartland Patriot]

Why oh why couldn't they have just deleted the parts or section that included churches, hospitals, and amusement parks?

That is how law is written, whether for good or bad. Our Constitution doesn't erase things when changed, they add an amendment, leaving the prior one. I agree it could make it easier, but it shows when a law was in place and when it wasn't, thus can't say "you broke this law in 1997" when it wasn't changed till 1999.

Is that to prevent ex post facto prosecutions, perhaps?

[smoothoperator]

Laws do get repealed. Maybe not often but it does happen.