SRC-LBB H.B. 819 78(R)   BILL ANALYSIS


Senate Research Center   H.B. 819
78R589 JTS-DBy: Isett (Williams)
Criminal Justice
5/22/2003
Engrossed


DIGEST AND PURPOSE 

The 75th Legislature amended Section 46.15 of the Penal Code, adding a
variety of persons to whom Section 46.02 of the Penal Code (Unlawful
Carrying Weapons) "does not apply." According to Section 2.02 of the Penal
Code, an exception to an offense that would result in the placement of the
burden of proof on the prosecutor is labeled by the phrase "it is an
exception to the application of..." Section 2.03(e) of the Penal Code
states that "a ground of defense in a penal law that is not plainly
labeled in accordance with this chapter has the procedural and evidentiary
consequences of a defense." Because the provisions of Section 46.15 are
not labeled using the specific phrase required by the Penal Code as
exception(s) to the application of Section 46.02, instead using the phrase
"Section 46.02 does not apply to...", the grounds of defense included in
Section 46.15 have the procedural and evidentiary consequences of a
defense, according to the default rule contained in Section 2.03(e)
(emphasis added).  The result is that any person to whom Section 46.02 of
the Penal Code does not apply, if charged with a violation of Section
46.02, bears the burden of proving the defense that the person was
hunting, traveling, engaged in the actual discharge of military duty or
duties as a commissioned private security officer, or engaged in any of
the situations to which Section 46.15 provides that the prohibition
against carrying weapons provided by Section 46.02 "does not apply."  

H.B. 819 changes the language of Section 46.15 of the Penal Code so that,
if someone is arrested for the offense of unlawful carrying of a weapon,
the prosecutor retains the burden to disprove the defendant's claim of an
exception under Section 46.15, rather than the defendant having to prove
the applicability of the exception to him or herself. 
 
RULEMAKING AUTHORITY

This bill does not expressly grant any additional rulemaking authority to
a state officer, institution, or agency. 

SECTION BY SECTION ANALYSIS

SECTION 1.   Amends Section 46.15(b), Penal Code, as amended by Chapters
1221 and 1261, Acts of the 75th Legislature, Regular Session, 1997,  as
follows: 

(b)  Provides an exception to the application of Section 46.02.  Replaces
a reference to Article 4413(29cc), Revised Statutes) with Subchapter H,
Chapter 411, Government Code and replaces "the Private Investigators and
Private Security Agencies Act (Article 4413 (29bb), Vernon's Texas Civil
Statutes" with Chapter 1702, Occupations Code. 

SECTION 2.   Makes application of this Act prospective.

SECTION 3.   Effective date:  September 1, 2003.