March 28, 2006
DeLay sues to get his gun back

Tom DeLay is fighting to get his gun back after his concealed carry license was suspended due to his felony indictment.

Under a Texas law passed in 1995, a license may be suspended if the holder is charged with a Class A or Class B misdemeanor or indicted on felony charges.


The author of the original bill, Land Commissioner Jerry Patterson, who was a state senator, said the section of law calling for suspension of licenses of people under indictment should probably be removed from the statute.

"It is clearly not rational, not called for, but it was one of those things we did to make somebody say, 'OK, I'll vote for it,' " Patterson said Monday.

Patterson said several provisions were put in the bill by backers in order to garner support from other lawmakers who were leery about the law.

Patterson said since the bill's passage more than a decade ago, legislators have amended the statute and removed some of the parts he called "onerous."

"There is a presumption of innocence. Would we take away his First Amendment right to free speech?" Patterson said.

I'm always amused at how the git-tuff-on-crime crowd can find religion on the subject of presumed innocence when one of their own is on the court docket. Perhaps DeLay can make felony indictees' rights his new crusade if he survives his reelection fight in November.

Out of curiosity, I surfed through the Chronicle archives to see if there were any news reports about this particular provision of the law from the 1995 legislative session when it was adopted. There may have been some heartburn about suspending licenses for indicted felons behind the scenes, but I couldn't find anything about it in the actual news stories. Here's how the bill appeared as it passed out of the Senate committee.

The proposed law would allow adults who have never been convicted of a felony or are not facing criminal charges to apply to the Texas Department of Public Safety for a permit to carry a handgun every day.

They would have to submit to criminal background checks and take handgun proficiency training in courses developed by the DPS.

That's about the only mention of "not facing criminal charges" - i.e., not being under indictment like a certain former House Majority Leader - that I found. And that's not because the bill passed quietly and uncontroversially. Beyond the expected opposition, some other aspects of this bill caused a stir. For example, the list of exceptions to where you could carry a concealed handgun, and the fight over limiting background checks - Patterson is quoted in one article that he "doesn't want to let the criminals know" who might be packing heat.

The bill passed Senate after these battles were fought, then a slightly different version passed out of the House committee and eventually the full House. Here's how its restrictions were reported:

To be eligible, a person must be at least 21, of sound mind, free of felony convictions and have no history of substance abuse. An applicant must also have no convictions for a Class A or B misdemeanor in the preceding five years or a Class C misdemeanor for simple assault. They also cannot ever have been convicted of a Class A or B misdemeanor involving the use of a handgun.

No mention of being under a felony indictment, though that provision was either there all along or added back when its final version was passed in the Senate. All I'm saying here is that this particular provision could not have been that controversial.

Now having said that, I agree with Commissioner Patterson that a blanket ban like that serves no rational purpose. Suspending a CCL as a condition of bail makes sense, but let's be honest: Tom DeLay is no less a menace to public safety without his gun than he normally is. The law is what it is, however, and I see no reason why he should get any special treatment. If there's a reason permitted in the statute to un-suspend his license before his trial then fine, but if not, let him act like any other aggrieved citizen and petition his State Rep to change the existing law.

Posted by Charles Kuffner on March 28, 2006 to Scandalized! | TrackBack

Personally, I think we oughta just repeal the concealed carry law entirely and be done with it. But this is Texas, and that ain't gonna happen.

So given that the CCL is on the books and is gonna stay there, I agree: there's no reason to automatically suspend someone's concealed carry permit prior to conviction. There should be room for discretion, depending on the nature of the charges and the risk the defendant presents.

OTOH, I'm not sure DeLay has a case for overturning the automatic suspension provision (if that's what he's trying to do - I didn't see the grounds for DeLay's appeal in the Chron article). Courts have never recognized the Second Amendment as protecting an individual's right to keep and bear arms. And since the law is reasonably related to a legitimate governmental interest, DeLay can't claim an equal protection violation either.

But again, this is Texas. Perhaps our state Constitution is more protective of gun rights than the U.S. one. And it's always possible that a Texas court will accept the NRA-favored broad interpretation of the Second Amendment. If so, it's unlikely the state will appeal to a Federal court, so such a ruling may well stand.

Posted by: Mathwiz on March 28, 2006 1:42 PM

Perhaps DeLay can make felony indictees' rights his new crusade if he survives his reelection fight in November.

As I recall, he already tried that back when he was majority leader. Didn't work.

Posted by: Mathwiz on March 28, 2006 1:45 PM

A suspension of a indictee's concealed-carry license is merely temporary; the suspension ends when (and if) the charges are dismissed. Tex. Gov't Code §411.187(c)(4). Note, too, that Texas law does not mandate the license be suspended. The law states that a license may be suspended if the license holder is charged with a felony. Tex. Gov't Code §411.187(a)(1). Under the Code Construction Act, the word "may" creates discretionary authority or grants permission or a power. Tex. Gov't Code §311.016(1). This indicates that the license suspension is within the trial court's discretion.

Because the order of suspension came from the justice court rather than the Department of Public Safety, this indicates that DeLay requested a court review of the suspension, had a court hearing, and still had his license suspended. Tex. Gov't Code §411.187(b). I'm really not sure how DeLay can appeal this ruling. I can't see him making a plausible argument to overturn the law on constitutional grounds; the Second Amendment does not, as far as I can tell, grant any right to bear arms in a concealed fashion rather than openly.

Any appeal would therefore likely turn on the facts discussed in the suspension hearing. The facts of the case would be reviewed under an "abuse of discretion" standard; that is, whether the court acted without reference to any guiding rules or principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). The exercise of discretion is within the sole province of the trial court, and an appellate court cannot substitute its discretion for that of the trial judge. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex. 1985). Appellate courts rarely overturn abuse-of-discretion decisions; DeLay would have to show that the justice court had, essentially, no basis whatsoever for its decision.

In any event, I don't think it's a bad idea to suspend the concealed-carry licenses of felony indictees. Even if completely innocent, indictees are under stress and may be desperate; as a matter of public safety, those are exactly the sort of folks I don't want walking around with concealed handguns.

Posted by: Kenneth Fair on March 28, 2006 3:58 PM

DeLay ranted and ranted about judges should be impeached for NOT following the "letter of the law".

So...when the "letter of the law" LAW. . . catches up to DeLay (again and again) this time, regarding his "loving him some guns" .... he appeals a Republican law to a Republican judge. Now, if said Republican judge DOES NOT FOLLOW the "letter of the law" then DeLay would need to insist on the impeachment of said Republican judge.

I think our nation's right wing spinning and spinning is making us all overly nauseous but most of us so empty from FIVE YEARS of nausea we have nothing left to upchuck!

Posted by: Begonia Buzzkill on March 28, 2006 4:11 PM

Right on, Begonia. You stole my thunder. This just amazes me but I'm sure the NRA has already funneled a one hundred G's in his bank account for his defense.

Posted by: fred Villarreal on March 28, 2006 10:55 PM


I am very sure does Texas law allow a felon to own weapon after 5 years has going by or after he or she finish all the probation or parole charges.

Posted by: Tom Walker on September 6, 2006 9:51 AM