84R432 SCL-F
By: Kleinschmidt H.B. No. 176
A BILL TO BE ENTITLED
AN ACT
relating to protection of the right to keep and bear arms within the
State of Texas.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. This Act shall be known as the Second Amendment
Preservation Act.
SECTION 2. The legislature finds and declares the
following:
(1) The legislature is firmly resolved to support and
defend the United States Constitution against every aggression,
either foreign or domestic, and oppose every infraction of the
principles that constitute the basis of the union of the states
because only a faithful observance of those principles can secure
the nation's existence and the public's happiness.
(2) Acting through the United States Constitution, the
people of the several states created the federal government to be
the people's agent in the exercise of a few defined powers, while
reserving to the state governments the power to legislate on
matters that concern the lives, liberties, and properties of
citizens in the ordinary course of affairs.
(3) The limitation of the federal government's power
is affirmed under the Tenth Amendment to the United States
Constitution, which defines the total scope of federal power as
being that which has been delegated by the people to the federal
government, and all power not delegated to the federal government
in the United States Constitution is reserved to the states or to
the people.
(4) If the federal government assumes powers that the
people did not grant to the federal government in the United States
Constitution, the federal government's acts are unauthoritative,
void, and of no force.
(5) The several states respect the proper role of the
federal government, but reject the proposition that such respect
requires unlimited submission. If the federal government, created
by compact among the states, was the exclusive or final judge of the
extent of the powers granted to the federal government by the states
through the constitution, the federal government's discretion, and
not the constitution, would necessarily become the measure of those
powers. To the contrary, as in all other cases of compacts among
powers having no common judge, each party has an equal right to
judge whether infractions of the compact have occurred, as well as
to determine the mode and measure of redress. Although the states
have granted supremacy to laws and treaties made pursuant to the
powers granted in the constitution, that supremacy does not extend
to various federal statutes, executive orders, administrative
orders, court orders, rules, regulations, and other actions that
restrict or prohibit the manufacture, ownership, and use of
firearms, firearm accessories, or firearm ammunition exclusively
within the borders of Texas. Such federal actions exceed the powers
granted to the federal government except to the extent that they are
necessary and proper for governing the United States armed forces
or militia forces actively employed in the service of the armed
forces.
(6) The people of the several states have, in Article
I, Section 8, of the United States Constitution, given Congress the
power "to regulate Commerce with foreign Nations, and among the
several States," but "regulating commerce" does not include the
power to limit citizens' right to keep and bear arms in defense of
the citizens' families, neighbors, persons, or property, or to
dictate as to what type of arms and accessories law-abiding,
mentally competent Texans may buy, sell, exchange, or otherwise
possess within the borders of this state.
(7) The people of the several states have, in Article
I, Section 8, of the United States Constitution, also granted
Congress the power to "lay and collect Taxes, Duties, Imposts and
Excises, to pay the Debts and provide for the common Defence and
general Welfare of the United States" and to "make all Laws which
shall be necessary and proper for carrying into Execution the . . .
Powers vested by [the] Constitution in the Government of the United
States, or in any Department or Officer thereof." These
constitutional provisions merely identify the means by which the
federal government may execute the federal government's limited
powers and ought not to be construed to grant unlimited powers
because to do so would destroy the carefully constructed
equilibrium between the federal and state governments.
Consequently, the legislature rejects any claim that the taxing and
spending powers of Congress can be used to diminish in any way the
right of the people to keep and bear arms.
(8) The people of Texas have vested the legislature
with the authority to regulate the manufacture, possession,
exchange, and use of firearms within the borders of this state,
subject only to the limits imposed by the Second Amendment to the
United States Constitution and Section 23, Article I, Texas
Constitution.
(9) The legislature strongly encourages responsible
gun ownership, including parental supervision of minors in the
proper use, storage, and ownership of all firearms, the prompt
reporting of stolen firearms, and the proper enforcement of all
state gun laws. The legislature condemns any unlawful transfer of
firearms and the use of any firearm in any unlawful activity.
SECTION 3. Title 5, Civil Practice and Remedies Code, is
amended by adding Chapter 115 to read as follows:
CHAPTER 115. PROTECTION OF RIGHT TO KEEP AND BEAR ARMS
Sec. 115.001. DEFINITIONS. In this chapter:
(1) "Government agency" means:
(A) this state or a municipality or other
political subdivision of this state; and
(B) any agency of this state or a municipality or
other political subdivision of this state, including a department,
bureau, board, commission, office, agency, council, or public
institution of higher education.
(2) "Law-abiding citizen" means an individual who:
(A) is legally present in this state; and
(B) may, under the laws of this state, possess a
firearm.
(3) "Right to keep and bear arms" means the right
guaranteed by the Second Amendment to the United States
Constitution and Section 23, Article I, Texas Constitution.
Sec. 115.002. CERTAIN FEDERAL LAW REGULATING FIREARMS
INVALID. A federal law, including a statute, an executive,
administrative, or court order, or a rule, that infringes on a
law-abiding citizen's right to keep and bear arms under the Second
Amendment to the United States Constitution or Section 23, Article
I, Texas Constitution, is invalid and not enforceable in this
state. A federal law that infringes on a law-abiding citizen's
right to keep and bear arms includes a law that:
(1) imposes a tax, fee, or stamp on a firearm, firearm
accessory, or firearm ammunition that is not common to all other
goods and services and may be reasonably expected to create a
chilling effect on the purchase or ownership of those items by a
law-abiding citizen;
(2) requires the registration or tracking of a
firearm, firearm accessory, or firearm ammunition or the owners of
those items that may be reasonably expected to create a chilling
effect on the purchase or ownership of those items by a law-abiding
citizen;
(3) prohibits the possession, ownership, use, or
transfer of a firearm, firearm accessory, or firearm ammunition by
a law-abiding citizen; and
(4) orders the confiscation of a firearm, firearm
accessory, or firearm ammunition from a law-abiding citizen.
Sec. 115.003. DUTIES OF COURTS AND LAW ENFORCEMENT
AGENCIES; ENFORCEMENT BY GOVERNMENT EMPLOYEES, OFFICIALS, AND
AGENCIES PROHIBITED. (a) Each state court and law enforcement
agency of this state shall protect a law-abiding citizen's right to
keep and bear arms.
(b) A government agency or an employee or an official of a
government agency may not enforce a federal law described by
Section 115.002.
Sec. 115.004. REMEDIES. (a) A person who knowingly
violates Section 115.003(b) is liable under this section to a
law-abiding citizen whose right to keep and bear arms was infringed
by the person.
(b) A law-abiding citizen described by Subsection (a) may
recover:
(1) declaratory relief under Chapter 37;
(2) injunctive relief to prevent the threatened
violation or continued violation;
(3) compensatory damages for pecuniary and
nonpecuniary losses; and
(4) reasonable attorney's fees, court costs, and other
reasonable expenses required in bringing the action.
Sec. 115.005. NOTICE; RIGHT TO ACCOMMODATE. (a) A claimant
may not bring an action to assert a claim under this chapter unless,
60 days before bringing the action, the claimant gives to the person
who violated Section 115.003(b), by certified mail, return receipt
requested, written notice:
(1) that the person has taken or proposes to take an
enforcement action infringing on the claimant's right to keep and
bear arms; and
(2) of the particular enforcement action giving rise
to the infringement.
(b) Notwithstanding Subsection (a), a claimant may, within
the 60-day period established by Subsection (a), bring an action
for declaratory or injunctive relief and associated attorney's
fees, court costs, and other reasonable expenses, if:
(1) infringement on the claimant's right to keep and
bear arms is imminent; and
(2) the claimant was not informed and did not
otherwise have knowledge of the enforcement action in time to
reasonably provide the notice.
(c) A person who receives a notice under Subsection (a) may
cure the infringement on the claimant's right to keep and bear arms.
(d) A claimant with respect to whom an infringement on the
claimant's right to keep and bear arms has been cured may not bring
an action under Section 115.004.
Sec. 115.006. ONE-YEAR LIMITATIONS PERIOD. (a) A claimant
must bring an action to assert a claim for damages under this
chapter not later than one year after the date the claimant knew or
should have known of the infringement on the claimant's right to
keep and bear arms.
(b) Mailing notice under Section 115.005 tolls the
limitations period established under this section until the 75th
day after the date on which the notice was mailed.
Sec. 115.007. SOVEREIGN AND GOVERNMENTAL IMMUNITY WAIVED;
NO OFFICIAL IMMUNITY. (a) Sovereign and governmental immunity to
suit and from liability is waived and abolished to the extent of
liability created by Section 115.004, and a claimant may sue a
government agency for damages allowed by that section.
(b) The affirmative defense of official immunity is not
available to an employee or official sued under Section 115.004.
(c) Notwithstanding Subsection (a), this chapter does not
waive or abolish sovereign immunity to suit and from liability
under the Eleventh Amendment to the United States Constitution.
SECTION 4. This Act applies only to an infringement on the
right to keep and bear arms that occurs on or after the effective
date of this Act.
SECTION 5. This Act takes effect September 1, 2015.