tvc184

Things are not simply illegal. Nothing is illegal unless a law says it is. HIPAA covers doctor and patient relationships. HIPAA does not cover private people or companies. It breaks no law for your employer to ask why you are sick and not coming to work or if you have had the Covid vaccine. It absolutely breaks the law if your employer calls your doctor and your doctor tells him. A healthcare professional cannot disclose (most of the time but even that is not absolute) your medical records with anyone without your consent. If a relative of yours tells me that you had some medical procedure, there is no violation of any HIPAA law. If your relative got it from a healthcare professional or your relative is that healthcare professional, that would be a violation. So this person tells me about your medical history and I get on this forum and make a comment like I hate what happened to you and you got this procedure. I hope it works out OK. Again, that is not a HIPAA violation. If you find out your neighbor has Covid and you go tell your other neighbor, guess what, there is no HIPAA violation. I repeat this over and over in person and on forums, HIPAA must be one of the most misunderstood laws ever. This is directly from the federal government Health and Human Services website. The link to this page is below the quote. “In general, the HIPAA Rules do not apply to employers or employment records. HIPAA only applies to HIPAA covered entities – health care providers, health plans, and health care clearinghouses – and, to some extent, to their business associates. If an employer asks an employee to provide proof that they have been vaccinated, that is not a HIPAA violation, and employees may decide whether to provide that information to their employer.” [Hidden Content]

I think it is a HIPAA violation to ask what vaccine someone has taken. I know that is completely false but I love reading that on various forums. I like the comments such as, if your employer asks you to take the vaccine, he is violating HIPAA and you can sue. That has to be the most misunderstood law ever and people draw it like a gun. “You can’t talk about that!! HIPAA!!”

I used to love chess until I found out that I really had no clue what I was doing. I learned which way to pieces moved when I was about five years old and played with my father at that age. All the way to high school I could easily be a random person that “knew how” to play chess, which was (like me) how the pieces moved. Then I found out there were named strategies and named attacks. That’s when I basically gave it up. Now we have the Internet but 50 years ago I did not feel like reading several books and playing enough games to learn how to be really good at it. I did beat the high school chess champion one time. I played my typical, I know which way our pieces moved and I tried to anticipate his next move. After I won he kind of laughed and said I had the most difficult method to beat. That was the random, I have no clue what I’m doing but smart enough to anticipate. He had taken years to learn to counteract certain strategies and that all goes out the window when the other person has no strategy. 😂

Not liking the law is a right. It follows the Constitution however in particular Article III.

The US Supreme Court says otherwise.

Clickbait?

The hits just keep on comin’!!! [Hidden Content]

I have to do some more digging because the story just broke I think. I have found it on a couple of websites but not a major new source yet. If it is true it is outrageous. According to the story a democratic congressman from Pennsylvania has authored a bill that will prohibit any ammunition purchases without a photo ID. [Hidden Content]

Noise canceling ear buds with your favorite YouTube, movie or music channels.

As SM said, no unless you’re raising them, probably under a permit, for food. Wild animals are not livestock. This is the Texas Penal Code definition of livestock: (5) "Livestock animal" means:(A) cattle, sheep, swine, goats, ratites, or poultry commonly raised for human consumption; (B) a horse, pony, mule, donkey, or hinny; (C) native or nonnative hoofstock raised under agriculture practices; or (D) native or nonnative fowl commonly raised under agricultural practices.

And just for informational purposes in reference to wild or feral cats and dogs being protected even though they have no owner and may be on your property, The law says it is unlawful to kill an animal without consent of the owner or to torture the animal. The question becomes, what is an animal? This is a quote from the Texas Penal Code in reference to cruelty to non-livestock animals: "Animal" means a domesticated living creature, including any stray or feral cat or dog, and a wild living creature previously captured. “Including any stray or feral”’is significant

It is a felony to kill a cat or a dog if it is not yours without the consent of the owner. If it is a wild animal (feral), it has no owner and is a felony. As B13 stated, you can kill an animal in self-defense or if it is attacking your livestock. I believe you would have a hard time trying to say you killed a cat in self-defense. If a Rottweiler, Doberman, Chow, etc., was attacking a person, I am sure It would justify shooting it. So if you shoot that wild neighborhood cat sleeping on top of your car with a pellet gun and get caught and prosecuted, you could potentially do time in prison. In my opinion and knowing Texas law.

Let’s see, I’m a convicted felon so I’m going to drive on a public street and shoot a dog. He gets a two for one deal there. It is a felony to shoot the dog and then another felony for processing the firearm to begin with.

All rights are the same whether under arrest or not. You do not have less rights when you’re not in custody or more rights when you are. The rights listed under Miranda do not appear because of an arrest. You have the same rights as Miranda sitting there making this post. Those are from the 5A and 6A and say that you have the right to attorney and you have the right to remain silent. The only thing that an arrest does is it requires the police to tell you that you have those rights if you were in custody AND being interrogated. There is no court ruling that requires the reading of Miranda after an arrest. It only requires the Miranda warning if an officer intends to question the arrested person about a crime. Even if a person states that he wishes to remain silent and/or wishes to speak with an attorney, that goes away after 14 days after the person has gotten out of jail. So you have the same Miranda rights reading this forum but a police officer does not have to tell you that because he is not questioning you while you’re in custody. Questioning a person about a crime does not require Miranda. Having a person in custody does not require Miranda. Questioning a person while he is in custody does require Miranda or as we teach it, during custodial interrogation. As far as the motto it is… a motto. It is a general purpose for the police and not a direct order or law. There are very few laws that require any police officer to do anything. It means there are very few laws that require an officer to act. Probably the most important four words in criminal law are and/or and may/shall. The and and or are important either in a single sentence or at the end of a list because it tells you if any one of those items stands alone or if it requires all of the above. An example is that some laws will say a person commits a crime if he does A, B and C. In that case you would have to prove a person did A and B and C or no crime happened. If the law says a person commits a crime if he does A, B or C, it means that any one of those requirements stands alone. If you could only prove B, it is a crime. I think a majority a criminal law at some point has the word and or the word or in the statue. The other critical words are may and shall. When a law says the word “may” it means that the officer’s actions are voluntary or discretionary. When it says “shall”, it means that the officer has no choice. There are very few shall act in law-enforcement or criminal law.

Bill Burr has a really funny YouTube skits from his standup routines. YouTube Bill Burr gold digging…. But be language prepared on all of his videos.

Maybe you misunderstood my post. I never mentioned greed by word but it is all over what I wrote. I do agree that it exist but therein lies the problem. The greedy people at the top of Socialism have convinced the masses at the bottom that greed does not exist. That’s why I talked about the group hug and everybody being together. That is a fallacy and always will be. Nobody is together in most situations except to look after their own interest. I also call it incentive. Most people are driven in most situations to do tasks that benefit them. Why do people work overtime? Because they make extra money. I don’t call that greed, that is incentive for bettering your life. I was answering the question (which I highlighted), what motivates Democrats to push it. Motivation is the people (Democrats) at the top wanting control (which is greed) convincing the people at the bottom (voting Democrats) that the greedy people at the top are not really greedy and only looking out for the people at the bottom. When people push the notion that we are “all in this together“, it is many times covering the fact that the people pushing it simply wants to control the people at the bottom. Republicans, conservative, free-market capitalist, etc., also want to be at the top. They simply realize that free enterprise and capitalism drives the ability to do that.

For the people at the top it is about control. For the minions at the bottom, it is the belief that “this time”, Socialism will work. The other thousand times it has been tried in the world and failed was because “it was not us”. I think it is from the virtuous belief that if we all group hug, we will all get along and it was just a few people that are hampering this world wide collective. It would probably work with a bunch of pre-programmed robots making them like minded.

The United States Constitution, which created this country we now have (as a follow-up to the Articles of Confederation) , was enacted for the very reason to not have states united. That was the entire point of the articles and ultimately the Constitution.

I believe that question has already been decided by the US Supreme Court. In one of my favorite movie lines, from the movie G.I. Jane, the base captain talking to United States senator says that he can do what she ask as long as she will just “trim a little fat off the Constitution”.

I kind of like the way he thinks but some of his statements are absolutely incorrect in Texas. There is no mandatory arrest in Texas for trespassing and most other crimes and you cannot demand that charges be filed. I mean you can say the words I demand it but there’s no obligation for an officer to do it. He says to get a pitbull attorney and file a lawsuit however that lawsuit has already been settled by the US Supreme Court. Unless there’s a specific state law requiring officers to act, they are under no statutory or constitutional obligation to do so. (See Castle Rock v Gonzalez) I do agree that if you demand someone leave your property and if they do not, you can ask to file charges and they “may” be arrested at the scene which means that it is at the discretion of the officer. I do not agree that you can demand the charges be filed and sue the police if they refuse to make an arrest. There simply is no such law in Texas of a mandatory arrest except in extreme limited circumstances (violation of a protective order) and I suspect in most other states. There are only a couple of circumstances in Texas where the police are even required to make a report. Absolutely contact an attorney if you feel that this is incorrect however I’m fairly certain of my understanding of Texas law and United States Supreme Court case law. Your mileage may vary….

The problem is that in private business you don’t have a captive audience. You can get rid of an employee not performing. That fact alone can give you better employees since it can allow you to give them incentives (even just a pat on the back/encouragement) to be better and keep a job. You can also do a good job in hiring a good employee candidate. A teacher gets none of that. A teacher’s audience is entirely captive with very little recourse to change it. The teacher does not get to interview the students, reject them as a not good candidate, kick them out of class for being lazy, etc. A teacher shows up the first day of class and the school says, here’s your roster. A teacher who is mediocre at best gets a class of excellent students and has a great year. Another teacher who everybody in the school says is awesome ends up drawing some slugs that really don’t care. The mediocre teacher gets a bonus and the awesome teacher gets nothing. I agree that there should be some way to incentivize teachers to do a better job. Other than just an administrator’s opinion, how do you do it?

Just a follow up as my example, these are quotes from the Texas Penal Code. Murder carries a maximum of 99 years, Manslaughter has a maximum of 20 years and CNH has a maximum of 2 years. So you can go from 2 or 99 years maximum based solely on what you were thinking or your mens rea. Notice that the wording is practically identical except for the mental state. Murder: A person commits an offense if he: (1) intentionally or knowingly causes the death of an individual. Manslaughter: A person commits an offense if he recklessly causes the death of an individual. Criminally Negligent Homicide: A person commits an offense if he causes the death of an individual by criminal negligence.

it was a very good question. I think that is one of the misconceptions in the law. The feelings of the other person are basically irrelevant. It goes by the intent of the person committing the crime, not how it was received. Like if I walked up to you in a stern voice and say, “hey we need to talk” while pointing a finger at you. That is not a threat. A person might say it is threatening in their opinion but that is not a crime. If you walked up and said the same thing to me, should I be able to place you in jail and the answer is no. Well, “I felt threatened” does not make it a crime. Now swap the scenario to the opposite direction. Let’s say I try to scare you and call you on the phone and say I’m on the way over with my shotgun, I will be there in five minutes and I’m going to kill you. Would that be a crime? In my opinion, yes. It could be harassment (often called telephone harassment or making a threat on the phone) or terroristic threat. I made a threat to kill you in fairly short order with intent to scare you. That is a crime. But what if…. Let’s say you answer on the phone, good, I have my gun and if you come at me I am going kill you. I’m not afraid of you. Legally your feelings do not matter. Just because you are not afraid, did I still commit a crime and the answer is yes. The crime was my intent to make you scared. Whether you were or not is irrelevant. That’s why, the feeling of the victim does not really matter under the law. It is the type of a mental state of the person who commits the crime that matters. If you get in a legal discussion and really want to impress your friends, tell them that it is the “mens rea” or Latin for the “guilty mind”. Also… Some crimes do not specifically mention a culpable mental state. I think public intoxication is one of those crimes where it just says that you’re in public and you’re intoxicated and you’re a danger to someone, it is a crime. It does not specifically mention your mental state. One is still required however. The law in Texas says that if no mental state is specifically mentioned in the crime, then the prosecutor must prove that you were reckless. To put an easier, if not noted, the minimum of recklessness is a requirement to be proven. The only a mental state lower is criminal negligence. So if a crime does not mention what your mental state was , then the prosecutor has to at the very least prove you were reckless. The difference between recklessness and criminal negligence in itself is interesting. In both of them you did not intend for the consequences. What happened was really an accident. But what is the difference? Criminal negligence is a complete accident but you should have known better. Maybe you ran a four way stop sign and caused an injury. What if you never saw the stop sign because you’re not paying attention as it required by law? In my opinion that is criminal negligence. You had your head up your butt. Now let’s say you ran the same stop sign but you did so intentionally. You sure did not want to get in a wreck and damage your own car so it was an accident. The act of running the stop sign however, was intentional. In both situations running a stop sign was the initial act or crime and the result in both was an accident causing injury. With one you intended to run the stop sign and the other one you negligently ran a stop sign. I call recklessness as an intentional accident. The act was intentional but the results were an accident. Another example might be let’s say you were in the woods target practicing and shooting at a tin can on top of a hill. You did not check out the area and your bullet goes over the hill and hits somebody on the other side. There was certainly no intent to cause that injury but in my opinion you’re darn sure reckless. You were reckless because you intended to fire the shot but did not intend the results. It was an intentional accident. Now let’s say you were walking through the woods with your gun off safety and your finger on the trigger. You trip and fall and your gun goes off accidentally and you hit the same person on the other side of the hill. In my opinion that is criminal negligence because you should have known better than to have your gun off safety with your finger on the trigger walking through the woods. You sure did not intend to fire the shot however your head up your butt caused someone to get shot. In fact in Texas law the only difference between murder, manslaughter and criminally negligent homicide is a culpable mental state. Clear as mud? Again, great question.

…. and speaking of proving elements. I remember at a trial, I was testifying on an aggravated assault or an aggravated robbery (I can’t remember) with a person that was threatened with a knife. The prosecutor asked me, officer in your experience could this knife caused a serious injury or death? My answer was some thing like, yes I have worked a couple of murders and several serious injuries where a knife was used. The defense attorney did not ask me any follow-up questions about the knife. In fact he would probably be stupid if he did. But…. Why the question from the prosecutor? Wouldn’t the jury know by their life experiences that a knife could cause death or serious injury? Sure they would. In court however, each element must be proven and to prove that a knife is a deadly weapon, the prosecutor must present some kind of evidence. That evidence was my testimony. Nothing is assumed in court. Could the defense attorney have argued that my testimony alone was not enough? Sure, but like I said, I think the defense attorney would be stupid. Then I would have started testifying how I saw a guy with his throat cut as he was dead in his front yard, etc. I don’t think that is what a defense attorney would want me discussing in front of a jury. That is just an example though that each element must be proven.

It all depends on the law in that state. All criminal laws are made up of what are called elements. Each element has to be proven for something to be a crime. Included in those elements are the culpable mental state. Those mental states are intentional, knowingly, recklessly and with criminal negligence. As examples, murder has two elements in Texas. You have to (1) intentionally or knowingly (2) take another person’s life. Public intoxication is to (1) be in public, (2) be intoxicated on some substance and (3) be a danger to yourself or someone else due to that intoxication. So public intoxication has more elements than murder. If any one element in a crime is not proven, the person is not guilty. Terroristic threat under Texas law says that you (1) place a person in imminent fear of (2) to seriously injure or kill someone (there is also another terroristic threat like a bomb threat). So the threat against a person has to be of a serious injury or death. The threat has to be imminent meaning it is about to happen fairly soon. An example might be to call someone on the phone and say I’m on the way over to your house to kill you. That is a threat of death and it is imminent. The crime is merely the threat. If a person actually shows up at your house and makes the threat with a deadly weapon exposed, it becomes an aggravated assault. That is why the elements are so important. To walk up and make a threat of imminent death or serious injury is one crime but to display a weapon becomes a for more serious crime with the exact same words. To display a firearm or a deadly weapon with no threat, goes back down to a far lesser crime, barely over a traffic citation. The problem between laws in all 50 states are the federal government is that they can be completely different and/or named differently or have different elements. What Texas calls criminal mischief, another state might call vandalism. What some states call breaking and entering, Texas calls burglary. Going only by the laws in Texas as an example, did the guy on the hood make a threat of serious bodily injury or death that was about to happen? If it could be proven, sure he could be charged. If they had proof that when the guy jumped up there he made some kind of statement like, I will get this gun out of my pocket and kill you, under Texas law that would be terroristic threat. Merely feeling threatened because somebody does something like jump on the hood of a car however is not likely a crime anywhere. It is not the perception of the claimed victim that is ever a crime but the intent of the person doing it. So if the woman in the car said, I felt threatened, that is not a crime. The question is, did he actually make a threat, not what she perceived? I am guessing that even if he did, they will not be able to prove it beyond a reasonable doubt without a recording. In the what if game, what if she had a dash cam with audio and he made some similar Threat? Not only could he be charged, he probably should be charged. If that were true, I think it will be prosecutorial misconduct for them to charge her in a crime and not him. In fact that threat alone if it could be proven, would more than likely negate any charges against her. It would prove her need for self-defense, in my opinion.