TexasCHLforum.com

usa1 wrote:

dicion wrote: 90 Days with Nothing to show? Denied.

thats me

Me too


...and unfortunately gobs and gobs of others

Sounds like we're talking about the difference between the actual law and the practical law.

There are a few things I do not like about Mr. Perry, but all in all, this state is in pretty darn good shape, considering the current economic climate. I'll give Perry and the legislature credit for not flying the state into the ground the way a lot of other state governments have; and on the basis of that, I'd vote for him again despite any differences I may have with his beliefs on other non-gun topics.

I think they guy's doing a good job, so I'll vote for him again. More importantly, I cannot see anyone else doing a better job.

K.B. Hutchison is no slouch, either, when it comes to supporting RKBA.

I'm just sayin' ....

Ok, one thing about "burden of proof", what I meant by that was this.. Regardless of what the statues say or what anything thinks "ought" to happen.. I want to hear of someone who already has had a denial hearing in front of a judge to appeal their "denial". Until then, I don't believe it would happen. Has anyone already "tested" what the laws or statues say? I need to see proof, not talk about how things should be. This doesn't count for someone who received a denial letter, I'm asking to show me someone who had a long processing time and filed for an appeal trial? that's all I'm saying. I'm talking reality, not what ought to be.. Applications are "supposed" to be done within 60 days.. but in reality they aren't. I like to deal in Reality.

infoman wrote:Ok, one thing about "burden of proof", what I meant by that was this.. Regardless of what the statues say or what anything thinks "ought" to happen.. I want to hear of someone who already has had a denial hearing in front of a judge to appeal their "denial". Until then, I don't believe it would happen. Has anyone already "tested" what the laws or statues say? I need to see proof, not talk about how things should be. This doesn't count for someone who received a denial letter, I'm asking to show me someone who had a long processing time and filed for an appeal trial? that's all I'm saying. I'm talking reality, not what ought to be.. Applications are "supposed" to be done within 60 days.. but in reality they aren't. I like to deal in Reality.

Stay tuned; I'll be showing you thousands.

Chas.

Charles L. Cotton wrote: Stay tuned; I'll be showing you thousands.

Chas.

Sounds good to me. Our society has become too complacent. Like .gov is this untouchable entity that can manipulate the law as it sees fit and there is nothing we can do about it. I hope this puts them back in there place. Maybe they will actually finish my app. while their at it.

Charles, thank you so much for your efforts. I'd emailed you my information earlier when you'd asked for names of people who were currently twisting in the wind, and have called my state senator & rep today to let them know (nicely) of one more disgruntled constituent. Please keep us posted, and if I can help.

infoman wrote:one quick thing.. you can't have a denial hearing, unless you've already been officially denied. that means they send you a denial letter. they don't have "hearings" for people who are just unhappy with processing times or background checks taking long. You won't get a denial hearing without first being denied.

infoman,

I beg to disagree with you. By action of law, we are all denied at 90 days if they did not issue a 60 day letter. I have demanded a hearing today and if I don't get a hearing scheduled in a reasonable time, I will do what i need to do to force a hearing

HGWC wrote:

dicion wrote: Since you've been denied by law, I'm pretty sure a Judge would agree that the letter is not necessary. Im sure DPS will argue it, but, once again, black and white in the statutes. IMO
And if they start quoting statutes stating that they have to send a letter, you can quote them right back with regard to the dates and times. It's a double edged sword. If they claim the statutes require them to send you something, then they are also saying the statutes requiring them to send you your LICENSE are in full effect.

Likewise, if they say that they don't have to send you something in the timeframe specified in the statutes, that means they don't have to send you a denial notice as required either, for it to be denied.

They either can follow ALL of GC 411.177-180 or none of it. They can't pick and choose what they want to follow

It'll be another nail in the coffin if they refuse to do so.

Have the letter notarized before you send it to them requesting a hearing. Also send it certified, delivery confirmation, and signature required.
If they do not file the hearing as required in the 30 day time period, then you break out the lawsuit and go full bore :)

They aren't following any of it. I just don't see the point of requesting, one more time, that they comply with the law. The only recourse you have is in the courts. IANAL, but unless the DPS requests the hearing with the JP, does the JP even have jurisdiction? I would think our only real recourse is state court for violation of our constitutional rights. This isn't just a petty grievance over violation of government code statutes.

v

Well, I would have to disagree with your legal interpretation. The recourse under the law for a denial is a hearing in JP court. By the same statute, DPS must file the case which means no charge to you for filing. If they do not file as required within 30 days than the applcant needs to file with the court (in this case the Texas Supreme Court) a petition for an order to force the DPS to file for the hearing. If you try to sue in district court to force the DPS to act, you will just waste your time and money. In Texas, mandamus power over the executive branch of state government rests with the Texas Supreme Court. I don't see a cause of action on constitutional grounds and in order to prevail in mandamus action you must have exhausted the other remedies available. If you do not request a hearing from DPS you will be bounced out of court.

I will defer to Mr. Cotton to correct my interpretation of any of this; but, this is the path I am pursuing

EDIT: Looking over the court powers and some case law it is only the named state executives that are reserved to the Texas Supreme Court, so it looks like Travis district court is the place to be.

Cowboyrob wrote:

HGWC wrote:

dicion wrote: Since you've been denied by law, I'm pretty sure a Judge would agree that the letter is not necessary. Im sure DPS will argue it, but, once again, black and white in the statutes. IMO
And if they start quoting statutes stating that they have to send a letter, you can quote them right back with regard to the dates and times. It's a double edged sword. If they claim the statutes require them to send you something, then they are also saying the statutes requiring them to send you your LICENSE are in full effect.

Likewise, if they say that they don't have to send you something in the timeframe specified in the statutes, that means they don't have to send you a denial notice as required either, for it to be denied.

They either can follow ALL of GC 411.177-180 or none of it. They can't pick and choose what they want to follow

It'll be another nail in the coffin if they refuse to do so.

Have the letter notarized before you send it to them requesting a hearing. Also send it certified, delivery confirmation, and signature required.
If they do not file the hearing as required in the 30 day time period, then you break out the lawsuit and go full bore :)

They aren't following any of it. I just don't see the point of requesting, one more time, that they comply with the law. The only recourse you have is in the courts. IANAL, but unless the DPS requests the hearing with the JP, does the JP even have jurisdiction? I would think our only real recourse is state court for violation of our constitutional rights. This isn't just a petty grievance over violation of government code statutes.

v

Well, I would have to disagree with your legal interpretation. The recourse under the law for a denial is a hearing in JP court. By the same statute, DPS must file the case which means no charge to you for filing. If they do not file as required within 30 days than the applcant needs to file with the court (in this case the Texas Supreme Court) a petition for an order to force the DPS to file for the hearing. If you try to sue in district court to force the DPS to act, you will just waste your time and money. In Texas, mandamus power over the executive branch of state government rests with the Texas Supreme Court. I don't see a cause of action on constitutional grounds and in order to prevail in mandamus action you must have exhausted the other remedies available. If you do not request a hearing from DPS you will be bounced out of court.

I will defer to Mr. Cotton to correct my interpretation of any of this; but, this is the path I am pursuing

Keep me informed...That's just a little to much Lawyering for me

As posted in another thread. Forcing the issue by demanding a hearing has resulted in my license being issued. I only wish I had started sooner.

Okay, the usual disclaimers apply: I know nothing except my name, rank, and serial #, and there have been time when I haven't exactly been too sure about all of those ...

I haven't seen this mentioned elsewhere, although I could easily have missed it -- but in reading through HB2730 (which becomes effective 01 September) it appears that DPS has eliminated the 60+30 day time requirement for issuance of a license. The 60 rule still applies, after which DPS shall
"(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."

It seems they will now have to provide a time estimate for issuance rather than adhere to a specific additional 30-day time limit. This is on pages 145 & 146 of the bill, which I found at http://www.legis.state.tx.us/tlodocs/81 ... 02730F.pdf" onclick="window.open(this.href);return false;

Someone correct me if I am wrong (I'm sure that will happen ) Seriously, I want to understand this.

der Teufel wrote:Okay, the usual disclaimers apply: I know nothing except my name, rank, and serial #, and there have been time when I haven't exactly been too sure about all of those ...

I haven't seen this mentioned elsewhere, although I could easily have missed it -- but in reading through HB2730 (which becomes effective 01 September) it appears that DPS has eliminated the 60+30 day time requirement for issuance of a license. The 60 rule still applies, after which DPS shall
"(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."

It seems they will now have to provide a time estimate for issuance rather than adhere to a specific additional 30-day time limit. This is on pages 145 & 146 of the bill, which I found at http://www.legis.state.tx.us/tlodocs/81 ... 02730F.pdf" onclick="window.open(this.href);return false;

Someone correct me if I am wrong (I'm sure that will happen ) Seriously, I want to understand this.

As best as I can tell looking over it quickly section .177(c) is not modified in the ameded statute; so the 90 day limit remains

Cowboyrob wrote:

der Teufel wrote:Okay, the usual disclaimers apply: I know nothing except my name, rank, and serial #, and there have been time when I haven't exactly been too sure about all of those ...

I haven't seen this mentioned elsewhere, although I could easily have missed it -- but in reading through HB2730 (which becomes effective 01 September) it appears that DPS has eliminated the 60+30 day time requirement for issuance of a license. The 60 rule still applies, after which DPS shall
"(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."

It seems they will now have to provide a time estimate for issuance rather than adhere to a specific additional 30-day time limit. This is on pages 145 & 146 of the bill, which I found at http://www.legis.state.tx.us/tlodocs/81 ... 02730F.pdf" onclick="window.open(this.href);return false;

Someone correct me if I am wrong (I'm sure that will happen ) Seriously, I want to understand this.

As best as I can tell looking over it quickly section .177(c) is not modified in the ameded statute; so the 90 day limit remains

Okay, now I understand. I was only looking at the amended provisions contained in HB2730, and not at what wasn't amended (and therefore not included in the bill). Thanks for setting me straight. The 60+30 day rule still applies.