83R9170 AJZ-F
By: Ellis S.B. No. 1526
A BILL TO BE ENTITLED
AN ACT
relating to criminal history background checks in connection with
firearm transfers; creating offenses.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 411, Government Code, is amended by
adding Subchapter H-1 to read as follows:
SUBCHAPTER H-1. FIREARM BACKGROUND CHECKS
Sec. 411.221. DEFINITIONS. In this subchapter:
(1) "Firearm" has the meaning assigned by 18 U.S.C.
Section 921(a)(3).
(2) "National instant criminal background check
system" means the national instant criminal background check system
created by Pub. L. No. 103-159.
(3) "Transfer" means the sale or delivery of any
firearm in this state to a transferee. The term includes redemption
of a pawned firearm by any person who is not licensed as a federal
firearms licensee by the Bureau of Alcohol, Tobacco, Firearms and
Explosives. The term does not include the return or replacement of
a firearm that has been delivered to a federal firearms licensee for
the sole purpose of repair or customizing.
(4) "Transferee" means any person who is not licensed
as a federal firearms licensee by the Bureau of Alcohol, Tobacco,
Firearms and Explosives, or any of its successor agencies, in
accordance with 18 U.S.C. Chapter 44 and to whom a transferor wishes
to sell or deliver a firearm.
(5) "Transferor" means any licensed importer,
licensed manufacturer, or licensed dealer as defined by 18 U.S.C.
Sections 921(a)(9), (10), and (11).
Sec. 411.222. STATE POINT OF CONTACT. The department
serves as the state point of contact for:
(1) implementation of 18 U.S.C. Section 922(t) and all
federal regulations and all applicable guidelines adopted under
that law; and
(2) the national instant criminal background check
system.
Sec. 411.223. TRANSMISSION OF BACKGROUND CHECK REQUEST.
(a) The department, acting as the state point of contact under this
subchapter, shall transmit to the national instant criminal
background check system a request for a criminal history background
check in connection with the prospective transfer of a firearm and
may also search other databases. The department shall deny a
transfer of a firearm if the transfer would violate 18 U.S.C.
Section 922(g) or (n) or any law of this state.
(b) In addition to the grounds for denial specified in
Subsection (a), the department shall deny a transfer of a firearm
if, on or after the date a request for a criminal history background
check is initiated, the prospective transferee:
(1) is arrested for or charged with an offense for
which the prospective transferee, if convicted, would be prohibited
under state or federal law from purchasing, receiving, or
possessing a firearm and there is no final disposition of the case;
or
(2) is charged with an offense punishable by
confinement for a term exceeding one year and there is no final
disposition of the case.
(c) The department may cooperate with federal, state, and
local law enforcement agencies to retrieve or assist any other law
enforcement agency in retrieving a firearm transferred in violation
of this subchapter and may assist in any prosecution related to a
transfer made in violation of this subchapter.
Sec. 411.224. PROCESSING INFORMATION. The department shall
receive and process information concerning final case disposition
data in this state within 72 hours after the final disposition of
the case for purposes of carrying out the department's duties under
this subchapter.
Sec. 411.225. NOTIFICATION OF DENIAL. (a) On denial of a
firearm transfer, the department shall notify the transferor and
send notice of the denial to the national instant criminal
background check system, as required by 18 U.S.C. Section 922(t).
The department shall also immediately send notification of the
denial and the basis for the denial to the federal, state, and local
law enforcement agencies having jurisdiction in the county in which
the prospective transferee resides and in which the transferor
conducts any business.
(b) On denial of a firearm transfer, the transferor shall
provide the prospective transferee with written information
prepared by the department concerning the procedure by which the
prospective transferee, within 30 days after the denial, may
request a review of the denial and of the criminal history record
information that prompted the denial. Within 30 days after
receiving a request from a prospective transferee under this
subsection, the department shall:
(1) perform a thorough review of the criminal history
record information that prompted the denial; and
(2) render a final administrative decision regarding
the denial within 30 days after receiving information from the
prospective transferee that alleges the transfer was improperly
denied.
(c) If the department withdraws a denial, the department
shall immediately request that the agency that provided the
criminal history record information prompting the denial make a
permanent change to the information as necessary to make the
information accurate. The department shall also immediately
provide notification of a withdrawal of a denial to all agencies and
entities that were previously notified of a denial under Subsection
(a).
Sec. 411.226. INFORMATION ON WARRANTS. If in the course of
conducting a criminal history background check under this
subchapter the department obtains information that indicates the
prospective transferee is the subject of an outstanding warrant,
the department shall immediately provide notice of the warrant to
the federal, state, and local law enforcement agencies having
jurisdiction in the county in which the prospective transferee
resides and in which the transferor conducts any business.
Sec. 411.227. RULES. (a) The director or the director's
designee shall adopt rules necessary to:
(1) carry out the duties of the department under this
subchapter; and
(2) ensure the proper maintenance, confidentiality,
and security of all records and data provided under this
subchapter.
(b) The rules adopted under Subsection (a) must include
procedures regarding:
(1) the manner in which a prospective transferee whose
transfer is denied may request a review of the denial and of the
criminal history record information that prompted the denial;
(2) the retention of records obtained or created for
purposes of this subchapter or for implementation of 18 U.S.C.
Section 922(t), except that the rules must state that the
department may not retain a record for more than 48 hours after the
date on which the department approves a transfer; and
(3) the collection of information from and proper
identification of a prospective transferee, including forms
adopted by the department for those purposes.
(c) In addition to the procedures described by Subsection
(b), the rules adopted under Subsection (a) shall establish
requirements for the department to:
(1) be open for business at least 12 hours each day,
except Christmas Day and Thanksgiving Day, to transmit the requests
for criminal history background checks to the national instant
criminal background check system and to search other databases;
(2) provide a toll-free telephone number for any
person calling from within this state that is operational every day
that the department is open for business under Subdivision (1); and
(3) employ and train personnel as necessary to ensure
prompt processing of the reasonably anticipated volume of requests
for criminal history background checks received under this
subchapter.
Sec. 411.228. CIVIL CAUSES OF ACTION. This subchapter does
not create a civil cause of action for damages in addition to those
causes of action available under Chapter 101, Civil Practice and
Remedies Code.
Sec. 411.229. CONFLICT WITH CODE OF CRIMINAL PROCEDURE. If
a provision of this subchapter conflicts with a provision of the
Code of Criminal Procedure governing the transfer of a firearm,
this subchapter controls.
Sec. 411.230. OFFENSES. (a) A person commits an offense if
the person:
(1) is a transferor who knowingly requests a criminal
history background check or any specific criminal history record
information under false pretenses or knowingly disseminates
criminal history record information to any other person other than
the subject of the information; or
(2) is an agent or employee or former agent or employee
of the department who knowingly violates this subchapter.
(b) An offense under Subsection (a) is a Class A
misdemeanor.
(c) The provisions of Chapter 37, Penal Code, apply to
statements and actions made as required by this subchapter.
Sec. 411.231. IMMUNITIES FOR TRANSFEROR. A transferor who
complies with this subchapter is not subject to civil or criminal
liability or a regulatory sanction that otherwise would arise from
the lawful transfer or lawful denial of the transfer of a firearm.
Sec. 411.232. FAMILY TRANSFERS. This subchapter does not
apply to transfers between transferors and transferees related
within the third degree by consanguinity or within the second
degree by affinity, as determined under Chapter 573.
SECTION 2. Sections 46.06(a) and (b), Penal Code, are
amended to read as follows:
(a) A person commits an offense if the person:
(1) sells, rents, leases, loans, or gives a handgun to
any person knowing that the person to whom the handgun is to be
delivered intends to use it unlawfully or in the commission of an
unlawful act;
(2) intentionally or knowingly sells, rents, leases,
or gives or offers to sell, rent, lease, or give to any child
younger than 18 years any firearm, club, or illegal knife;
(3) intentionally, knowingly, or recklessly sells a
firearm or ammunition for a firearm to any person who is
intoxicated;
(4) knowingly sells a firearm or ammunition for a
firearm to any person who has been convicted of a felony before the
fifth anniversary of the later of the following dates:
(A) the person's release from confinement
following conviction of the felony; or
(B) the person's release from supervision under
community supervision, parole, or mandatory supervision following
conviction of the felony;
(5) sells, rents, leases, loans, or gives a handgun to
any person knowing that an active protective order is directed to
the person to whom the handgun is to be delivered; [or]
(6) knowingly purchases, rents, leases, or receives as
a loan or gift from another a handgun while an active protective
order is directed to the actor; or
(7) intentionally, knowingly, or recklessly transfers
a firearm without obtaining approval for the transfer following a
criminal history background check under Subchapter H-1, Chapter
411, Government Code, unless the transfer is to an immediate family
member.
(b) In this section:
(1) "Intoxicated" means substantial impairment of
mental or physical capacity resulting from introduction of any
substance into the body.
(2) "Active protective order" means a protective order
issued under Title 4, Family Code, that is in effect. The term does
not include a temporary protective order issued before the court
holds a hearing on the matter.
(3) "Immediate family member" means related within the
third degree by consanguinity or within the second degree by
affinity, as determined under Chapter 573, Government Code.
(4) "Transfer" has the meaning assigned by Section
411.221, Government Code.
SECTION 3. The change in law made by this Act to Section
46.06, Penal Code, applies only to an offense committed on or after
the effective date of this Act. An offense committed before the
effective date of this Act is governed by the law in effect on the
date the offense was committed, and the former law is continued in
effect for that purpose. For purposes of this section, an offense
was committed before the effective date of this Act if any element
of the offense occurred before that date.
SECTION 4. This Act takes effect September 1, 2013.