Category: Concealed Carry

Does a Conviction for DWI/DUI Make a Person Ineligible for a Texas Concealed Handgun License (CHL)?

5/18/2015

Question:
I was convicted of drunk driving while stationed in North Carolina on military duty. I have since been discharged and am now back home in Texas. Does my out-of-state drunk driving conviction render me ineligible for a Texas CHL?

Answer:
It sounds like you probably are eligible to receive a CHL. You might want to consider having a firearms/CHL attorney assist you. The attorney would likely interview you to obtain more details of your specific case and, if deemed necessary, obtain and review copies of court documents. Then, if all appears in order, the attorney could assist you with completing your application.

The attorney's office need not be physically located in your geographic area, as long as the attorney is licensed to practice in Texas.

For more information on this topic, or other legal topics, click: Contact Lapin Law Offices

Texas Firearms Law Attorney - Serving all 254 Texas Counties
Lapin Law Offices, P.C.
877.570.2200

Disclaimer: The information contained in this publication is provided by Lapin Law Offices, P.C., for informational purposes only and, shall not constitute legal advice or create an attorney-client relationship. The laws and interpretation of laws discussed herein may not accurately reflect the law in the reader’s jurisdiction. Do not rely on the information contained in this publication for any purpose. If you have a specific legal question, please consult with an attorney in your jurisdiction who is competent to assist you.

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Armed Volunteer Security Officers in Places of Worship

4/19/2015

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Lapin Law Offices is a full-service, Dallas, Texas law firm. We focus on asset protection, business law, civil litigation, criminal defense, estate planning, family law, probate, and real estate law. Please visit us at: http://www.LapinLawTX.com or call us today at 972.292.7425.

Question:
A number of the congregants who attend the place of worship that I attend are licensed to carry concealed handguns. Because the cost of hiring armed, plainclothes security officers is prohibitively expensive, these concealed handgun license (“CHL”) holders are considering whether they should organize a volunteer (e.g., unpaid) group to provide armed security for the other congregants. What are the potential legal issues associated with this idea?

Answer:
In most of America, and especially in Texas, it is still possible for persons to lawfully arm themselves for the purpose of self-defense. Often, this arming involves some form of prior statutory or regulatory compliance. Fortunately, such compliance issues are usually not overly burdensome.

The Texas Concealed Handgun law provides a quick, easy, and inexpensive means for law-abiding Texas residents to obtain a concealed handgun license (CHL). The purpose of CHLs is to allow individuals to carry concealed firearms for personal protection.

When, in Texas, a person endeavors to go beyond protecting oneself (and immediate family) and provides personal protection to others, state law requires that such person be licensed under the Private Security Act (hereinafter “Act”), which has been codified as § 1702 of the Texas Occupations Code. Persons who wear a “distinctive uniform” and openly carry a firearm are referred to under the Act as “Commissioned Security Officers.” Section 1702.169. Persons who wear clothing which does not constitute a “distinctive uniform” and who carry a concealed firearm are referred to under the Act as “Personal Protection Officers.” Section 1702.201, et seq. One must first attain the status of Commissioned Security Officer before being granted the status of Personal Protective Officer. Section 1702.204.

The Texas Private Security Act makes it unlawful for persons who have not been issued a license thereunder to provide security services. A civil penalty of up to $10,000 per occurrence may be imposed on any person who violates the Act. Section 1702.381(a).

Likewise, a person (or entity) that employs a person who is required to hold a license under section 1702, but who is in violation of that requirement, also violates the Act and may also, upon proper notice, be assessed a civil penalty of up to $10,000 per occurrence. Section 1702.381(b-c). Arguably, the civil penalty which might be imposed on the “employer” could be up to $10,000 per unlicensed person. Thus, for example, an entity that “employs” ten unlicensed persons might be assessed a civil penalty of $100,000.

The legislative history of the Act strongly suggests that the term “employ,” is to be given broad meaning; that is, the term is to be understood expansively, to encompass voluntary associations of unpaid persons in places of worship, and is not to be read narrowly to mean only an employer who engages the services of an employee for compensation.

During 2013, two separate bills were introduced in the Texas legislature which, if passed, would have amended the Act to allow non-uniformed concealed carry of firearms by volunteers who serve charitable and religious organizations. Neither bill made it out of committee.

The Private Security Act does, however, contain an exception to its licensing requirements for volunteers who serve charitable and religious organizations. However, persons who take advantage of this exception may not lawfully carry firearms while providing security services – even if they possess a valid Concealed Handgun License – (and also may not wear uniforms). Section 1702.323.

There is, however, a course of action that is available to charitable and religious organizations that would provide them with armed security at economical, below-market rates.

A tax-exempt legal entity – separate and apart from the charitable or religious organization – could be formed for the sole purpose of providing security services to a single charitable or religious organization or, alternatively, to a group of such organizations (“Private Security Entity”).

The Private Security Entity would obtain a Security Company license under the Private Security Act and then hire properly-licensed volunteer Personal Protective Officers (PPOs) from among the members of the organization it serves or, alternatively, from the general workforce.

To minimize the risk of civil liability, the Private Security Entity and the charitable or religious organization it serves would enter into a contract for services, with the Private Security Company indemnifying the charitable or religious organization for any civil liability that might arise from the performance of services under the contract. The charitable or religious organization would, in turn, pay the Private Security Company an agreed-upon fee for services, which because of the Private Security Company’s not-for-profit nature and method of operations would, presumably, be much more affordable than contracting with a for-profit private security company.

For a related information, please visit: Texas Concealed Carry in Places of Worship

For more information on this topic, or other leg topics, click here: Contact Lapin Law Offices

Texas Firearms Law Attorney - Serving all 254 Texas Counties
Lapin Law Offices, P.C.
877.570.2200

Disclaimer: The information contained in this publication is provided by Lapin Law Offices, P.C., for informational purposes only and, shall not constitute legal advice or create an attorney-client relationship. The laws and interpretation of laws discussed herein may not accurately reflect the law in the reader’s jurisdiction. Do not rely on the information contained in this publication for any purpose. If you have a specific legal question, please consult with an attorney in your jurisdiction who is competent to assist you.

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Deferred Adjudication and Texas Concealed Handgun Licenses (Texas License to Carry)

4/19/2015

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Question:
Approximately twelve years ago, I received deferred adjudication for the offense of assault with a deadly weapon (ADW) and, as a result, was placed on 5 years of community supervision (probation). I successfully completed the period of probation and, by all standards, have been a law-abiding, taxpaying citizen ever since.

Recently, I completed a Texas concealed handgun licensing course and applied for a Texas Concealed Handgun License (CHL). My application for a CHL was denied, due to the presence on my criminal history record of the deferred adjudication for the ADW offense.

Will a deferred adjudication for a felony offense constitute a permanent bar to being issued a CHL?

Answer:
There seems to be much confusion regarding the legal effect and consequences of Texas deferred adjudications, as evidenced by the number and frequency of inquiries on this subject. Casual Internet research also suggests there is much false information on this issue which is circulating online.

A hypothetical, but common case involves a young adult, say under 25 years of age or so, who had a momentary lapse or absence of good-judgment and, as a result, ended up being charged with a felony offense. During pretrial negotiations, this young adult, who may or may not have been relying on the assistance and advice of counsel, accepted a settlement offer from the prosecuting attorney which involved a plea of “guilty” or “no contest” to the offense, in exchange for a period of deferred adjudication. Our hypothetical young offender may even have been told that, after successful completion of the term of deferred adjudication, the offender would be “discharged.”

Our hypothetical young offender then turned over the proverbial “new leaf,” successfully completed the period of deferred adjudication, was “discharged,” and then went on to lead a law-abiding and productive life.

Over the many years that pass, our hypothetical and once youthful-offender turned law-abiding citizen discovers that the deferred adjudication may have been an obstacle to professional licensing and employment, and, last but not least, is and has been a bar to the lawful ownership and use of firearms. In fact, our hypothetical, now law-abiding citizen may even have applied for a CHL, only to be reminded, upon receipt of a letter denying issuance of a CHL, of the continuing consequences of the (now) long-ago deferred adjudication.

Let us take a look at the relevant law.

Federal law provides that it is unlawful for a person convicted of a felony offense to possess firearms. 18 U.S.C. § 922. Texas law also criminalizes the possession of firearms by persons who have been convicted of a felony offense. Texas Penal Code § 46.04. To the extent that state law is less restrictive than federal law, federal law will control. U.S. Constitution, Article VI, clause 2.

For purposes of federal law, a criminal “conviction” which renders a defendant ineligible to lawfully possess firearms is to be determined “in accordance with the law of the jurisdiction in which the proceedings were held.” 18 U.S.C. § 922(a)(20).

Thus, because federal law looks to state law to determine what constitutes a felony conviction for the purposes of firearms, we must turn to Texas state law to answer the following questions:

1. Whether “deferred adjudication” for a Texas felony is considered a felony “conviction” which results in a corresponding loss of firearms-related rights.

2. Assuming an affirmative answer to the first question, whether a “discharge” following successful completion of the period of deferred adjudication results in a restoration of a defendant’s firearms-related rights.

Texas appellate courts, over the course of main appeals which have spanned many years, have consistently held that a disposition of deferred adjudication constitutes a conviction. In reaching this conclusion, the Texas courts have looked to, and interpreted, § 20(a) of Article 42.12 of the Texas Code of Criminal Procedure as creating two types of relief, one mandatory and the other discretionary. Mandatory relief has been described by Texas appellate courts as the usual – most common – disposition, which merely consists of a “discharge” from community supervision. The second – and least common – form of relief has been described by Texas appellate courts as “judicial clemency,” which consists of a dismissal of criminal charges and a release “from all penalties and disabilities” that resulted from the offense.

Section 20(a) of Article 42.12 states in relevant part:

If the judge discharges the defendant under this section, the judge may set aside the verdict or permit the defendant to withdraw the defendant's plea, and shall dismiss the accusation, complaint, information or indictment against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which the defendant has been convicted or to which the defendant has pleaded guilty. . . . Texas Code of Criminal Procedure, Article 42.12, § 20(a).

Because, as the Texas appellate courts have explained, the “usual” disposition of deferred adjudication cases is a mere “discharge” from community supervision – without a dismissal of charges and a releases from all penalties and disabilities that result from the offense – Texas law views most deferred adjudications to be no different, in any meaningful way, from convictions.

There is, however, a judicially-recognized method of changing the status of a deferred adjudication from that of a “conviction,” where nothing but the defendant’s discharge from community supervision (e.g., probation) is deferred, to that of a true deferred adjudication – a dismissal – with a release from all penalties and disabilities following successful completion of probation.

The timing related to seeking “a release from all penalties and disabilities” has also been the subject of much Texas litigation.

For those who would like to have their civil rights restored after completing a period of deferred adjudication, the best time to start preparing to make the request is before agreeing to be placed on deferred adjudication. The next-best time is during, but before the expiration of the period of deferred adjudication. And, as readers might have already guessed, the least-preferred time to start preparing to make the request is after the period of deferred adjudication has concluded.

One final – but important – note: As explained above, unless and until a person who has been placed on deferred adjudication for a felony offense receives a release from all penalties and disabilities which resulted therefrom, that person will be considered to be a convicted felon for purposes of possessing firearms. As such, not only will the deferred adjudication create a permanent bar to being issued a Texas concealed handgun license (CHL), the seemingly simple act of applying for a CHL could be used as a basis for a new criminal prosecution, one which would allege the unlawful possession of a firearm by a felon, as successful completion of the CHL course necessarily requires a student to physically possess and demonstrate proficiency with a handgun.

For a related information, click: Texas Deferred Adjudication: Is it a “Bait-and-Switch”?

For more information on this topic, click here to: Contact Lapin Law Group

Texas Firearms Law Attorney - Serving all 254 Texas Counties
Lapin Law Group, P.C.
877.570.2200

Disclaimer: The information contained in this publication is provided by Lapin Law Group, P.C., for informational purposes only and, shall not constitute legal advice or create an attorney-client relationship. The laws and interpretation of laws discussed herein may not accurately reflect the law in the reader’s jurisdiction. Do not rely on the information contained in this publication for any purpose. If you have a specific legal question, please consult with an attorney in your jurisdiction who is competent to assist you.

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Texas Concealed Carry in Places of Worship

4/19/2015

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Question:
Is it lawful in Texas for a holder of a concealed handgun license to be armed while at places of worship? I have been receiving conflicting information on this issue.

Answer:
There seems to be some confusion regarding whether it is lawful for holders of Texas Concealed Handgun Licenses (CHL) to carry concealed handguns in churches, synagogues, and other “established place[s] of religious worship.” To understand the Texas CHL law, as well as the reason for this confusion, we need to take a brief look at the legislative history of the Texas CHL law.

The current Texas “shall-issue” concealed carry law was enacted in 1995, in the aftermath of the 1991 mass-shooting at Luby’s Cafeteria, in Killeen, Texas. At that time, the Luby’s shooting was the deadliest mass-shooting in American history.

The Texas CHL law is codified as Penal Code § 46.035. As originally enacted, the statute stated that it was unlawful for a License Holder to carry a concealed firearm “on the premises of a church, synagogue, or other established place of religious worship.” P.C. § 46.305(b)(6). The term “premises” is defined narrowly, to include only “a building or a portion of a building. The term [premises] does not include any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area.” P.C. § 46.035(f)(3).

Thus, as originally enacted, the Texas CHL law made it unlawful for CHL holders to carry inside churches and other religious buildings, regardless of whether the property owner was amenable to concealed carry on the premises.

In 1997, two years after the current CHL law was passed, the Texas legislature decided to eliminate the prohibition against concealed carry in churches and certain other statutorily-prohibited locations. The simply, most logical, and most straightforward way of making these changes would have been to simply repeal subsection (b)(6) of section 46.305, as well as the subsections that formerly outlawed concealed carry at certain other locations.

But instead of simply repealing subsection (b)(6) and the other undesirable subsections, the Texas legislature, instead, added a new subsection, subsection (i), which states: “Subsections (b)(4), (b)(5), (b)(6), and (c) do not apply if the actor was not given effective notice under Section 30.06.” P.C. § 46.035(i).

The term “Section 30.06” is a reference to Texas Penal Code § 30.06, which is a trespass statute that gives owners of real property the legal ability to prohibit the otherwise lawful carry of concealed firearms while on their property. Section 30.06 is an attempt to balance the rights of private property owners against the rights of License Holders.

Thus, the Texas legislature mixed legislative “apples and oranges,” by taking a statute which originally was intended to be used for the state government to prohibited concealed carry in certain locations and turned it, at least partially, into a trespass statute to be used by owners of certain private property buildings who want to prohibit concealed carry inside those buildings.

Although most subscribers to this column would likely agree that the Texas legislature achieved a desirable result when it added subsection (i) to Texas Penal Code § 46.035, it’s hard to argue that method the legislature chose to do so was not illogical, inartful, or downright clumsy.

Click here to: Contact Lapin Law Offices

Attorney Dallas TX 75244
Lapin Law Offices, P.C.
5001 Spring Valley Road, Suite 400 East
Dallas, Texas 75244
972. 292.7425

Disclaimer: The information contained in this publication is provided by Lapin Law Offices, P.C., for informational purposes only and, shall not constitute legal advice or create an attorney-client relationship. The laws and interpretation of laws discussed herein may not accurately reflect the law in the reader’s jurisdiction, or since this publication may have changed statutorily or have been affected by judicial decision. Do not rely on the information contained in this publication for any purpose. If you have a specific legal question, please consult with an attorney in your jurisdiction who is competent to assist you.

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Lapin Law Offices is a full-service Texas law firm that provides litigation and non-litigation legal services throughout the State of Texas.

We focus on asset protection, business and contract law, civil litigation, criminal defense, estate planning, family law, firearms & 2nd Amendment law, probate, and real estate law.

Call us at (877) 570-2200.

Does a Conviction for DWI/DUI Make a Person Ineligible for a Texas Concealed Handgun License (CHL)?

Armed Volunteer Security Officers in Places of Worship

Deferred Adjudication and Texas Concealed Handgun Licenses (Texas License to Carry)

Texas Concealed Carry in Places of Worship

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