Friday, February 18, 2011

Worth All You Paid For It

Commenter and fellow Texas blogger MattG provides a set of links to augment my Legal Advice post from yesterday:

Texas Constitution and Statutes is a searchable database updated following the close of each successive state legislature (next updated in 2012 following the end of the current two-year legislative term).

Texas Penal Code, TITLE 10 OFFENSES AGAINST PUBLIC HEALTH, SAFETY, AND MORALS. CHAPTER 49 INTOXICATION AND ALCOHOLIC BEVERAGE OFFENSES. Section 49.01 DEFINITIONS. in it's entirety with the legislative history references included.

Texas Penal Code, Section 46.06 UNLAWFUL TRANSFER OF CERTAIN WEAPONS, sub-section (b)(1) being the pertinent reference here.

Texas Penal Code, Section 8.04 INTOXICATION., sub-section (d) being that mentioned by Mr. Walker specifically.

GOVERNMENT CODE, TITLE 4 EXECUTIVE BRANCH, SUBTITLE B LAW ENFORCEMENT AND PUBLIC PROTECTION, CHAPTER 411 DEPARTMENT OF PUBLIC SAFETY OF THE STATE OF TEXAS, an extensive and seemingly all-inclusive document, SUBCHAPTER H. LICENSE TO CARRY A CONCEALED HANDGUN, Section 411.171 DEFINITIONS, sub-Section (2), which reads as follows: "Chemically dependent person" means a person who frequently or repeatedly becomes intoxicated by excessive indulgence in alcohol or uses controlled substances or dangerous drugs so as to acquire a fixed habit and an involuntary tendency to become intoxicated or use those substances as often as the opportunity is presented, would seem to be most relevant here along with Section 411.172 ELIGIBILITY [to be issued a CHL, ed.], sub-Section (6), which requires is not a chemically dependent person.

I'm grateful to MattG for his contribution if only because it provides what I can only consider to be reinforcement of my on-going theme; GET A LAWYER. FIRST. As example of this, I suspect that use of Section 8.04 sub-section (b) "temporary insanity due to intoxication" as a legal defense in a court proceeding for instance, would likely result in revocation of a CHL (if only as a by-product of the follow-up treatment regimen the court seems likely to impose) regardless of it's effect on the original charge. Not being a lawyer myself, I'm just guessing though, which is the point.

Even with access to the actual state penal code provisions, without an attorney available to provide context, I still wouldn't have been made aware of the practical fact that:
Under the Texas Government Code Chapter 411 (governing the issuance of CHLs), it says that a CHL cannot be issued to a "chemically dependant person," which is one who repeatedly becomes "intoxicated" as defined by TPC § 49.01. That is the only time in the law governing CHLs that a specific definition of intoxication has been used. There exists almost no law on this subject for interpretation in this context.

[my bold]

Because various state prosecutors have heretofore chosen to use the state's BAC value from the vehicle code as a measure of intoxication in this context doesn't necessarily mean all CHL related prosecutions must do so, or that having "proved" a single instance of the condition necessarily rises to the level of having proved "chemical dependence". Assuming so seems a potentially disastrous choice to me.

Thanks to MattG, I'm better informed than I was and more convinced than ever of the rightness in my having retained* Texas Law Shield prior to my moment of legal jeopardy. If you live in Texas you should too - even if you are a lawyer yourself. If you don't live here, maybe it's time to start soliciting 2A-savvy attorneys in your state to start a similar retainer program there.

* I don't receive any compensation for blogging about Texas Law Shield, but I wouldn't object if WRW et al should happen to see the wisdom in offering such. :)

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