SB 319 continues the Legislature's tendency to add "exceptions" to the Penal Code rather than "defenses" or "affirmative defenses." Should make for some interesting charging language.

John, you've hit on a big problem.

We convinced folks at the Lege to change the exceptions in SB 319 into defenses, but only after several unsuccessful attempts to get them to understand that the bill, as filed, would require us to plead and prove that someone prosecuted for Leaving a Child in a Vehicle (for example) did not commit an abortion during the course of that offense. It's been very frustrating getting members and staff to understand just how broad exceptions are.

There has been a rash of exception bills this session, and it may be time to consider their abolition. Since the courts treat them as elements of the offense to which they apply, perhaps next session we could recharacterize them as such and get rid of PC 2.02 altogether. I know it would save us several days' worth of banging our heads against the wall at the Lege ...

I've lived through several sessions of fighting that fight when it comes to the carrying a weapon statute. It has gone back and forth from a defense to an exception several times. Police want a guarantee that they won't be arrested for carrying a weapon, and they think they get it by including themselves in an exception. Then, as you indicate Shannon, when we explain what that does to the charge, it gets changed back.

I think your idea of getting rid of the concept of exceptions is a good one.

John, that fight over the UCW exceptions is still going strong. HB 819 (Isett, R-Lubbock) passed the House but failed to get approval from Senate Criminal Justice. Then, today, it reappeared as a House floor amendment to SB 103 (Van de Putte, D-San Antonio). The Texas State Rifle Assn. is nothing if not persistent!

We are working to educate the members as to the true effect of changing the 8 UCW defenses in PC 46.15(b) to exceptions. If they don't want you folks prosecuting gun crimes, then so be it, but they won't be able to say they didn't know what they were doing.

I am not saying it is the best way to deal with the issue, but possibly consideration could also be given to writing the statutes like sec. 481.115 of the Health and Safety Code: " Except as authorized by _____, a person commits an offense if the person ......, unless ......". While that type of language obviously excepts certain activity from the scope of the statute, it is not worded in the magic phrase language of 2.02(a) and thus we do not have to negate the exceptions in either the pleading or the proof. I hate trying to prove negatives. The reason for the existence of 2.02 is not clear, though I am sure the Model Penal Code folks must have a good one.