Question about 46.15 Nonapplicability.

[Mr_Happy1]

Hello All,

I am new here, and was refered from Glocktalk. I was told that you all would be able to help me answer a question I have concerning section 46.15.
I am concerned with the section that states that District Attorneys and County Attorneys do not have the certain restrictions as to where they can carry.
I am wondering in particular if anyone knows if this applies to attorneys that work for the County Attorney's Office, or if it only applies to the actual elected offical?
I am considering taking a job as an Assistant County Attorney and am wondering if this section would apply to me or not?
I have made an exhaustive search of case law, AG opinions, and every other source I can think of. I have been unable to find anything that addresses this question.
Thanks for the help.

[kw5kw]

I came,
I saw,
I can't answer... Sorry.

I'll leave this for someone more experienced in that area of the law, but I do want to say welcome to the forum.

Russ

[kauboy]

(6) a district attorney, criminal district attorney,
or county attorney who is licensed to carry a concealed handgun
under Subchapter H, Chapter 411, Government Code.

Sure seems that way. I'd recommend asking a fellow attorney that has experience in CHL laws.

[txinvestigator]

Welcome to the forums.

I would think an assistant would be good to go, but I am not a lawyer.

Hopefull Charles (site owner and Attorney) can offer better insught.

I saw your question on another forum, glad to have you here too.

[ElGato]

Two of the Galveston Co. Assistant D.A.'s come to class and get their CHL, They seemed to think that was the best way to carry.

I really can't say if there is a different set of rules for them as Officers of the Court.

I will try to do some reading, there must be something about that somewhere.

[txinvestigator]

Two of the Galveston Co. Assistant D.A.'s come to class and get their CHL, They seemed to think that was the best way to carry.

I really can't say if there is a different set of rules for them as Officers of the Court.

I will try to do some reading, there must be something about that somewhere.

There is;

§ 46.15. NONAPPLICABILITY. (a) Sections 46.02 and 46.03
do not apply to:
(6) a district attorney, criminal district attorney,
or county attorney who is licensed to carry a concealed handgun
under Subchapter H, Chapter 411, Government Code.

I think his question is, would an Assistant County Attorney be qualified under that section. Or does it just apply to the elected official?

[ElGato]

Two of the Galveston Co. Assistant D.A.'s come to class and get their CHL, They seemed to think that was the best way to carry.

I really can't say if there is a different set of rules for them as Officers of the Court.

I will try to do some reading, there must be something about that somewhere.

There is;

§ 46.15. NONAPPLICABILITY. (a) Sections 46.02 and 46.03
do not apply to:
(6) a district attorney, criminal district attorney,
or county attorney who is licensed to carry a concealed handgun
under Subchapter H, Chapter 411, Government Code.

I think his question is, would an Assistant County Attorney be qualified under that section. Or does it just apply to the elected official?

now I understand the question. One of the Assistants said it meant the DA only.
My guess is that he is right, I think Assistants would be listed if it covered them. There may be some room for debate here.

[Charles L. Cotton]

Welcome to the forums.

I would think an assistant would be good to go, but I am not a lawyer.

Hopefull Charles (site owner and Attorney) can offer better insught.

I saw your question on another forum, glad to have you here too.

I agree with Tx; I think you would come within the scope of 46.15(a)(6). However, you're correct, there is no case law on point. I think if legislative intent was for this provision to apply only to elected officials the statute would have stated so.

Welcome to the forums.
Chas.

[Mr_Happy1]

I agree with you all, Cotton and txinvestigator. I think that it would apply to all attorneys employed by the office, not just the elected officials.
I just can't believe that there isn't someone who has used this particular section to carry.
It would seem to me that not just the elected official would be given the protection, while their staff attorneys would be prevented from the same protection.
I guess the only thing to do is actually ask at the court house where the offices is located. I had hoped to avoid that, however you gotta do what ya gotta do.
Thanks for the help guys.
Once I find out though I will definately pass this along.

[rdm191]

Our DA just took the class from me and when I checked with Austin DPS they told me that all the DA and his asst.'s would have to do is take the shooting course, fill out the paper work and they were good to go.

[txinvestigator]

Our DA just took the class from me and when I checked with Austin DPS they told me that all the DA and his asst.'s would have to do is take the shooting course, fill out the paper work and they were good to go.

Humm, I don't see that in the Government Code. Certain judges are exempt, but not attorneys.

§ 411.1881. EXEMPTION FROM INSTRUCTION FOR CERTAIN
PERSONS. (a) Notwithstanding any other provision of this
subchapter, a person may not be required to complete the range
instruction portion of a handgun proficiency course to obtain or
renew a concealed handgun license issued under this subchapter if
the person:
(1) is currently serving in or is honorably discharged
from:
(A) the army, navy, air force, coast guard, or
marine corps of the United States or an auxiliary service or reserve
unit of one of those branches of the armed forces; or
(B) the state military forces, as defined by
Section 431.001; and
(2) has, within the five years preceding the date of
the person's application for an original or renewed license, as
applicable, completed a course of training in handgun proficiency
or familiarization as part of the person's service with the armed
forces or state military forces.
(b) The director by rule shall adopt a procedure by which a
license holder who is exempt under Subsection (a) from the range
instruction portion of the handgun proficiency requirement may
submit a form demonstrating the license holder's qualification for
an exemption under that subsection. The form must provide
sufficient information to allow the department to verify whether
the license holder qualifies for the exemption.


§ 411.1991. ACTIVE PEACE OFFICERS. (a) A person who is
licensed as a peace officer under Chapter 415 and is employed
full-time as a peace officer by a law enforcement agency may apply
for a license under this subchapter. The person shall submit to the
department two complete sets of legible and classifiable
fingerprints and a sworn statement of the head of the law
enforcement agency employing the applicant. A head of a law
enforcement agency may not refuse to issue a statement under this
subsection. If the applicant alleges that the statement is untrue,
the department shall investigate the validity of the statement.
The statement must include:
(1) the name and rank of the applicant;
(2) whether the applicant has been accused of
misconduct at any time during the applicant's period of employment
with the agency and the disposition of that accusation;
(3) a description of the physical and mental condition
of the applicant;
(4) a list of the types of weapons the applicant has
demonstrated proficiency with during the preceding year; and
(5) a recommendation from the agency head that a
license be issued to the person under this subchapter.
(b) The department may issue a license under this subchapter
to an applicant under this section if the statement from the head of
the law enforcement agency employing the applicant complies with
Subsection (a) and indicates that the applicant is qualified and
physically and mentally fit to carry a handgun.
(c) An applicant under this section shall pay a fee of $25
for a license issued under this subchapter.
(d) A license issued under this section expires as provided
by Section 411.183.


DA's are not Peace Officers.

§ 411.201. ACTIVE AND RETIRED JUDICIAL OFFICERS. (a) In
this section:
(1) "Active judicial officer" means a person serving
as a judge or justice of the supreme court, the court of criminal
appeals, a court of appeals, a district court, a criminal district
court, a constitutional county court, a statutory county court, a
justice court, or a municipal court.
(2) "Retired judicial officer" means:
(A) a special judge appointed under Section
26.023 or 26.024; or
(B) a senior judge designated under Section
75.001 or a judicial officer as designated or defined by Section
75.001, 831.001, or 836.001.
(b) Notwithstanding any other provision of this subchapter,
the department shall issue a license under this subchapter to an
active or retired judicial officer who meets the requirements of
this section.
(c) An active judicial officer is eligible for a license to
carry a concealed handgun under the authority of this subchapter. A
retired judicial officer is eligible for a license to carry a
concealed handgun under the authority of this subchapter if the
officer:
(1) has not been convicted of a felony;
(2) has not, in the five years preceding the date of
application, been convicted of a Class A or Class B misdemeanor;
(3) is not charged with the commission of a Class A or
Class B misdemeanor or of a felony under an information or
indictment;
(4) is not a chemically dependent person; and
(5) is not a person of unsound mind.
(d) An applicant for a license who is an active or retired
judicial officer must submit to the department:
(1) a completed application on a form prescribed by
the department;
(2) two recent color passport photographs of the
applicant;
(3) a handgun proficiency certificate issued to the
applicant as evidence that the applicant successfully completed the
proficiency requirements of this subchapter;
(4) a nonrefundable application and license fee set by
the department in an amount reasonably designed to cover the
administrative costs associated with issuance of a license to carry
a concealed handgun under this subchapter; and
(5) if the applicant is a retired judicial officer:
(A) two complete sets of legible and classifiable
fingerprints of the applicant taken by a person employed by a law
enforcement agency who is appropriately trained in recording
fingerprints; and
(B) a form executed by the applicant that
authorizes the department to make an inquiry into any noncriminal
history records that are necessary to determine the applicant's
eligibility for a license under this subchapter.
(e) On receipt of all the application materials required by
this section, the department shall:
(1) if the applicant is an active judicial officer,
issue a license to carry a concealed handgun under the authority of
this subchapter; or
(2) if the applicant is a retired judicial officer,
conduct an appropriate background investigation to determine the
applicant's eligibility for the license and, if the applicant is
eligible, issue a license to carry a concealed handgun under the
authority of this subchapter.
(f) Except as otherwise provided by this subsection, an
applicant for a license under this section must satisfy the handgun
proficiency requirements of Section 411.188. The classroom
instruction part of the proficiency course for an active judicial
officer is not subject to a minimum hour requirement. The
instruction must include instruction only on:
(1) handgun use, proficiency, and safety; and
(2) proper storage practices for handguns with an
emphasis on storage practices that eliminate the possibility of
accidental injury to a child.
(g) A license issued under this section expires as provided
by Section 411.183 and, except as otherwise provided by this
subsection, may be renewed in accordance with Section 411.185 of
this subchapter. An active judicial officer is not required to
attend the classroom instruction part of the continuing education
proficiency course to renew a license.
(h) The department shall issue a license to carry a
concealed handgun under the authority of this subchapter to an
elected attorney representing the state in the prosecution of
felony cases who meets the requirements of this section for an
active judicial officer. The department shall waive any fee
required for the issuance of an original, duplicate, or renewed
license under this subchapter for an applicant who is an attorney
elected or employed to represent the state in the prosecution of
felony cases.


So one of three things;

1) DPS misunderstood the question and gave you an answer based on that misunderstanding.

2) DPS understood, but YOU misunderstood the answer.

3) Whoever you called/emailed was WRONG,


UNLESS you can show me in the law the exemption for District Attorneys.

You can find the CHL laws in the Texas Government Code, subchapter h, beginning with 411.171. See here; http://tlo2.tlc.state.tx.us/statutes/do ... 411.171.00

[longtooth]

I have had tooooo much to do the last few days. I am way too far down the list here but welcome aboard happy 1.
I sure like your screen name.

[txinvestigator]

Well, I like to parade my knowledge around when I am right, so I need to admit it when I was wrong.

It appears that DPS has decided, in the Texas Administrative Code, (where the rules are for administering sections of the different "codes") that Felony Prosecutors ARE eligible for a CHL under the Judicial Officer section I quoted above.

Texas Administrative Code;
Title 37, Part 1, Chapter 6, Subchapter B, Rule 6.16;

(h) Felony prosecutor. An attorney who is elected or appointed to represent the state in the prosecution of felony cases is eligible for a license to carry a concealed handgun. The department shall issue a license to carry a concealed handgun under this subsection to an applicant who meets the requirements for an active judicial officer. No fee is required for an original, duplicate, or renewed license for an applicant who meets the requirements of this subsection.

(1) Eligibility. An active judicial officer is eligible for a license to carry a concealed handgun. The department shall issue a license to an active judicial officer who meets the requirements of this subsection.

(2) Application and fee. An applicant for a license who is an active judicial officer must submit the basic application materials required, except that:

(A) the fee for a license issued under this subsection shall be $25;

(B) the classroom instruction part of the proficiency course required for an active judicial officer is not subject to a minimum hour requirement. Applicants who are active judicial officers shall be required to take classroom instruction only on:

(i) handgun use, proficiency, and safety; and

(ii) proper storage practices for handguns with an emphasis on storage practices that eliminate the possibility of accidental injury to a child.

(3) Renewal. An active judicial officer is not required to attend the classroom instruction part of the continuing education proficiency course to renew a license.

Mea culpa

[kauboy]

Wow!!! Congratz TXI! Did that hurt?

j/k