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For more than two decades, Houston cabdriver Thomas Ivan Kreipe had stayed out of trouble. So the 57-year-old, who says he was the victim of a robbery when he was driving a taxi in San Francisco, thought there would be no problem when he applied for a license to carry a concealed handgun. But his past came back to haunt him. Court records show that in 1970, Kreipe admitted to having less than half an ounce of marijuana, a felony at the time. He was given a sentence of five years’ deferred adjudication probation by a Dallas court; after successfully completing the terms of his plea agreement, his conviction was set aside in 1973, according to court records. Kreipe thought that meant the slate was wiped clean. The Texas Department of Public Safety didn’t and denied his application to carry a concealed handgun. Valerie Fulmer, an attorney and manager of the DPS crime records service, cites a 1998 ruling by the Fort Worth Court of Appeals, DPS v. Tune , to back up the department. That ruling said that a person whose felony conviction was set aside remained “convicted” as far as the Concealed Handgun Act was concerned. And on Aug. 24, the 14th Court of Appeals in Harris County also sided with the department and its lawyers. In a 2-1 decision, the appeals panel reversed a trial court judgment that ordered DPS to process Kreipe’s license application. Writing for the majority, Chief Justice Paul C. Murphy said that the language in the concealed weapon statute is un-ambiguous � Kreipe’s offense was a felony in 1970 and the meaning of “convicted” includes an order of deferred adjudication. “Only a person who has not been convicted of a felony is eligible for a license to carry a concealed weapon,” Murphy wrote in the opinion, which was joined by Justice J. Harvey Hudson. The third member of the appeals court panel, Justice Don Wittig, dissented. “Today’s decision unduly restrains Texans’ rights to bear arms,” Wittig wrote. “Only the Legislature, under our constitution, may restrict the right to bear arms. The Legislature expressed no intent that a 30-year-old conviction for what is now a class B misdemeanor should prohibit the issuance of a concealed hand gun permit.” Plain Meaning After a Justice of the Peace Court upheld DPS’ rejection of his application, Kreipe appealed to a county court of law, which found in his favor. Lawyers for DPS then appealed to the 14th Court. Kreipe’s attorney, John Osborne of Houston, says it’s “outrageous” that his client can’t get a license. He says he’ll ask for a rehearing and then file an appeal if necessary. “I think we’re going to win, especially after reading the dissent,” he says. Osborne contends that lawmakers didn’t intend to stop people in Kreipe’s position from getting the license. He notes the testimony of former state Sen. Jerry Patterson, chief sponsor of the legislation, who says that legislators wrote the law with the 1995 criminal code in mind. But the majority opinion says that the court may not consider the testimony of an individual legislator in construing a statute. And despite the “odd results” that sometimes allow one person who commits the same act today to get a license while barring people like Kreipe, the court can’t rewrite the statute, Murphy wrote. “If the Legislature wishes to allow individuals in Kreipe’s position to obtain concealed-handgun licenses, it is free to do so,” the chief justice wrote. Louis Beaty, concealed handgun attorney for DPS, says the department has no problem issuing licenses under whatever category the Legislature chooses. For now, though, applicants like Kreipe will continue to be turned down. Notes Beaty, “We just try to apply the statute’s plain meaning.”

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