Case Law


CHL in Texas

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Analysis of 23 S.W.3d 358
with Regard to Texas Gun Laws
by Donald Ray Burger
Attorney at Law

Tune v. Texas Department of Public Safety 23 S.W.3d 358 (Tex. 2000).

Holding of Case: The Handgun Act's definition of "conviction" means that even if a felony conviction is "erased" by a judge after successful completion of probation, the DPS can still deny the application for a CHL.

Analysis of Case:

In 1972 Tune pled guilty to a felony and was sentenced to two years' probation. After most of that probation was completed the district court issued an order setting aside his conviction and dismissed the indictment.

In 1996 Tune applied for a CHL. The DPS denied the application. Tune obtained a hearing before a Justice of the Peace and the JP reversed the DPS decision. The DPS appealed to the County Court at Law. The County Court at Law also ruled in favor of Tune. The DPS then appealed to the Court of Appeals.

The Court of Appeals ruled for the DPS and Tune appealed to the Texas Supreme Court.

There are two issues in the case. The first issue is whether the Court of Appeals had jurisdiction to even hear the appeal from the county court. By a 5 to 4 vote the Texas Supreme Court decided that the Court of Appeals does have jurisdiction to hear appeals of CHL decisions from county courts.

The second issue in the case is whether Tune was "convicted" as that term is used in the Handgun Act, especially in light of article 42.12 of the Texas Code of Criminal Procedure.

At the time of this case, the Handgun Act defined "convicted" as "an adjudication of guilt or an order of deferred adjudication entered against a person by a court of competent jurisdiction whether or not:
(A) the imposition of the sentence is subsequently probated and the person is discharged from community supervision; or
(B) the person is pardoned for the offense, unless the pardon is expressly granted for subsequent proof of innocence." Tune argued that because his conviction was set aside and the indictment against him dismissed, he was no longer "convicted" for purposes of the Handgun Act.

In addition, he argued that article 42.12 of the Texas Code of Criminal Procedure also "erased" his conviction for purposes of the Handgun Act. Article 42.12, at the time of the case, held that when a defendant has been convicted or entered a guilty plea and the court (after successful completion of probation) has discharged the defendant, the court may set aside the verdict or permit the defendant to withdraw his plea, and dismiss the indictment of the defendant, "who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted or to which he has pleaded guilty except that proof of his conviction or plea of guilty shall be made known to the court should the defendant again be convicted of any criminal offense [emphasis added]."

The Texas Supreme Court rejected these arguments. They held that under the plain meaning of the Handgun Act there is nothing in the Act to suggest any exception for those who successfully complete probation and are discharged and who have their indictments dismissed.

They specifically held that article 42.12 does not alter this result because the Handgun Act includes a specific definition of "convicted."

CHL permit refused.

Case summarized as of 1/15/04

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