WACO, Texas (CN) — A Texas county commissioner arrested for bringing concealed handguns to a meeting must turn the weapons over because simple possession qualifies as use under state law, a divided appeals court ruled.
Hamilton County Commissioner Mark Tafel was convicted in 2013 on two counts of unlawful carrying of a handgun by a license holder. He later appealed the trial court's orders that he turn over the .22 caliber revolver and .45 caliber handgun without a hearing.
Tafel unsuccessfully argued that a county judge issued him a letter in 2011 supposedly authorizing him to carry concealed handguns to the commissioners court meetings, but the letter was not filed with any court in Hamilton County.
A three-judge panel of Texas' 10th Court of Appeals affirmed the forfeiture orders Wednesday.
In a 2-1 majority opinion, the court concluded Tafel "used" either handgun as required for forfeiture under state law.
The panel cited a 1989 ruling by the Texas Court of Criminal Appeals - the state's highest criminal appeals court - that "use" includes simple possession of a weapon if such possession facilitates an associated felony.
The court also cited a section of the Texas Code of Criminal Procedure that spells out the procedure of disposing seized weapons, noting a list that includes Tafel's crime as involving the possession of weapons.
"Because Article 18.19 sets out the procedure to dispose of weapons seized in relation to offenses involving the unlawful possession of those weapons, it does not follow that a separate and distinct offense would be required for forfeiture," Justice Al Scoggins wrote. "Article 18.19 does not require the commission of an offense separate and distinct from those offenses set out in Chapter 46 of the Texas Penal Code."
Scoggins's opinion was joined by Justice Rex Davis.
In a 90-page dissent, Chief Justice Tom Gray argued double jeopardy has occurred, saying that one of the charges against Tafel should have been dismissed since only one statute was violated.
"If he had only one handgun on his person and left at some point and returned while carrying the same concealed handgun, he might then have violated the statute a second time," the opinion states. "It is the entry of the meeting that is prohibited, and each entry is a separate offense; but one entry with multiple handguns is only a single offense."
Gray said the majority is incorrect in concluding Tafel "used" the guns that would lead to their forfeiture.
"He was licensed to carry. It was the place into which he carried those handguns which arguably caused his conduct to be a criminal offense," he wrote. "The carrying of the handguns did not facilitate another offense, let alone a felony offense."
Gray also questioned whether the state is properly appearing before the court. He noted how unusual it is for a retired district attorney to be trying the case in the place of the county attorney after the district attorney recused himself.
"It appears the attorney pro tem appointed to act for the district attorney had not been properly appointed to act as attorney pro tem for the county attorney," the dissenting opinion states. "Nevertheless, it is just one more issue that causes my concern about the validity of Tafel's convictions."
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