You mean that a person charged under a municipal ordinance has the affirmative defense that the ordinance is unlawful under state law? That seems awfully strange.
It was established (by an attorney general's opinion) shortly after enactment of the CHL law back in 1995 that the state criminal trespass law was the proper way to enforce a prohibition against carry of a handgun by a CHL holder on premises, public or private. Municipal ordinances don't apply, except when referencing the state criminal trespass law.
In 1997, it was made even more explicit by enacting a new section 30.06 in the Penal Code that addressed criminal trespass by a CHL holder. Requirements for binding notice were made more stringent. But, it was left unclear if the original section still applied to CHL holders.
This year, both were amended:
* Adding a defense to prosecution for a CHL holder to the original criminal trespass law, which was supposed to shift the definition of trespass by a CHL holder (in the context of carrying a handgun) to another section of the Penal Code.
* An exception to the application of the portion of the Penal Code addressing trespass by a CHL holder, if the premises are owned or leased by a government agency.
But, "defense to prosecution" puts the burden on the defendant. The CHL holder can still be arrested, prosecuted, and ultimately have to present their defense in court to a judge and/or jury. In practice, that doesn't happen often (police officers don't arrest, or DA's quickly dismiss the charges), but the possibility still exists. As some ex-LEO's put it to me: "You might beat the rap, but you are still taking the ride".
The enacted bill is here:
http://home.ptb.org/txalert/2003/SB00501F.BT.html
The (unamended) versions of the relevant Penal Code are here:
http://www.capitol.state.tx.us/statutes/pe/pe0003000.html#pe005.30.05 http://www.capitol.state.tx.us/statutes/pe/pe0003000.html#pe006.30.06
It came up in another context, but the magic words in the Texas Penal Code apparently are: "it is an exception to the application of this section", in order to put the burden on the arresting officer and/or prosecutor.
Yes, it's confusing. But, we have been fine-tuning the law for about 10 years now (if you include the first attempt to enact it in 1995). Some of the ambiguity is due to manuevering on both sides of the issue, while some of it is due to a attempt to make non-obvious changes (and avoiding opposition from anti-gun lobbyists, who didn't realize the significance until it was too late).
