With the 2015 amendments to 46.05, has anyone dealt with trying to prove a Short-Barrel Firearm is NOT registered in the National Firearms Registration and Transfer Record? It is no longer a defense, but the State is required to plead and prove.
Bureau of Alcohol Tobacco Firearms and Explosives claims the registry information is confidential Tax information and the cannot disclose the existence or not of registration.
Any thoughts?

Are you treating the "unless registered" clause as an exception? If so, I would question that conclusion. Section 2.02 (a) of the Penal Code provides, "An exception to an offense in this code is so labeled by the phrase: 'It is an exception to the application of . . . .'". Tex. Penal Code Ann. § 2.02 (a). Section 2.03 (e) of the Penal Code states, "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." Tex. Penal Code Ann. § 2.03 (3). Moreover, the CCA just mentioned last month in Baumgart (n.64) that something following "unless' is not an exception. I have seen no contrary construction of new 46.05(a)(1).

I realize the bill analysis for SB 473 stated: "Interested parties have reported that there is confusion regarding whether current state law prohibits an individual from owning certain weapons that are legal under federal law and in several other states. These parties further report that an individual carrying such an item may be subject to legal action as current law requires the individual to prove the individual's innocence. S.B. 473 seeks to address these issues." But, just because the language concerning registration was moved from subsection (c) to (a)(1) does not mean § 2.02(b) applies, even if that is what the author of the bill had in mind.

I am treating the "unless registered" as an element. It is the same section from the provision which states the offense. Also the TDCAA legislative notes and charging manual (written by smarter lawyers than I'll ever claim to be) indicate it is the State's burden to plead and prove.

It seems to me that the same thing could be said about how marihuana is defined in the Controlled Substances Act (although it does not utilize "unless"). Yet, the CCA treated that part of a definition that excluded certain things otherwise included was "in the nature of" an exception and that the State therefore had no burden "to negate the existence of excluded materials," despite the general burden to prove every fact necessary to constitute the crime charged. Elkins v. State, 543 S.W.2d at 649-50. An "unless" definition was involved in Dowden v. State, 455 S.W.3d at 255, with the same result.

I have no idea of how to prove something was not registered if you have no access to the registry.

There is certainly support for the "not an element" position. I might present an indictment without the "unless registered" language, anticipating a motion to quash, and taking the issue up on appeal - one way or the other . . .

I read it as an element.

In my case we had a friendly ATF agent that explained our problem to the AUSA who in turn agreed to take the case if we desired.

I explained the options to defense counsel. Plead on the State case or I'll give it to the Feds. The defendant picked the Feds and the US Marshals came and got him.

quote:

Originally posted by JJ:
I read it as an element.

In my case we had a friendly ATF agent that explained our problem to the AUSA who in turn agreed to take the case if we desired.

I explained the options to defense counsel. Plead on the State case or I'll give it to the Feds. The defendant picked the Feds and the US Marshals came and got him.

Played a stupid game won a stupid prize. Ouch!

While the statute was amended this session, no attempt to clarify or rectify this issue. Maybe the federal law or regulation will need to be changed. Or perhaps the offense has become impossible to prove.

Indicted without the "unless registered" and a motion to quash the indictment has been filed.
One way or another, we’ll get an answer.