Texas 2019 - 86th Regular

Texas House Bill HB131 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	86R346 SMT-F
2	2	By: Moody H.B. No. 131
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to extreme risk protective orders and the prosecution of
8	8	the criminal offense of unlawful transfer of a firearm; creating a
9	9	criminal offense.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Title 1, Code of Criminal Procedure, is amended
12	12	by adding Chapter 7C to read as follows:
13	13	CHAPTER 7C. EXTREME RISK PROTECTIVE ORDER
14	14	Art. 7C.01. DEFINITIONS. In this chapter:
15	15	(1) "Bodily injury" and "serious bodily injury" have
16	16	the meanings assigned by Section 1.07, Penal Code.
17	17	(2) "Family," "family violence," and "household" have
18	18	the meanings assigned by Chapter 71, Family Code.
19	19	(3) "Firearm" has the meaning assigned by Section
20	20	46.01, Penal Code.
21	21	(4) "Local mental health authority" has the meaning
22	22	assigned by Section 571.003, Health and Safety Code.
23	23	(5) "Serious mental illness" has the meaning assigned
24	24	by Section 1355.001, Insurance Code.
25	25	Art. 7C.02. APPLICATION FOR EXTREME RISK PROTECTIVE ORDER.
26	26	(a) An application for a protective order under this chapter may be
27	27	filed by:
28	28	(1) a member of the respondent's family or household;
29	29	(2) a parent, guardian, or conservator of a person who
30	30	is under 18 years of age and a member of the respondent's family or
31	31	household; or
32	32	(3) a prosecuting attorney acting:
33	33	(A) on behalf of a person described by
34	34	Subdivision (1) or (2); or
35	35	(B) at the request of a peace officer.
36	36	(b) An application must:
37	37	(1) include:
38	38	(A) detailed allegations, based on personal
39	39	knowledge of a person described by Subsection (a)(1) or (2) or of a
40	40	peace officer, regarding any dangerous behavior or conduct
41	41	exhibited by the respondent as a result of a serious mental illness,
42	42	including any behavior or conduct related to the respondent's use
43	43	of firearms;
44	44	(B) any relevant medical or mental health
45	45	information concerning the respondent, including copies of
46	46	relevant medical or mental health records, if available;
47	47	(C) information concerning the quantity, type,
48	48	and location of any firearms the applicant believes to be in the
49	49	respondent's possession or control, if any;
50	50	(D) any other relevant facts indicating a need
51	51	for a protective order; and
52	52	(E) a statement that the applicant believes the
53	53	respondent poses an immediate and present danger of causing bodily
54	54	injury, serious bodily injury, or death to any person, including
55	55	the respondent, as a result of the respondent's serious mental
56	56	illness and access to firearms; and
57	57	(2) be signed by the applicant under an oath that, to
58	58	the knowledge and belief of the applicant, the facts and
59	59	circumstances contained in the application are true.
60	60	(c) An application for a protective order under this chapter
61	61	may be filed in a district court, juvenile court having the
62	62	jurisdiction of a district court, statutory county court, or
63	63	constitutional county court in the county in which the applicant or
64	64	the respondent resides.
65	65	Art. 7C.03. CONFIDENTIALITY OF CERTAIN INFORMATION. On
66	66	receiving an application containing specific medical or mental
67	67	health information concerning the respondent, the court shall order
68	68	the clerk to:
69	69	(1) strike the information from the public records of
70	70	the court; and
71	71	(2) maintain a confidential record of the information
72	72	for use only by the court.
73	73	Art. 7C.04. TEMPORARY EX PARTE ORDER. (a) If the court
74	74	finds from the information contained in an application for a
75	75	protective order under this chapter that there is reasonable cause
76	76	to believe that the respondent poses an immediate and present
77	77	danger of causing bodily injury, serious bodily injury, or death to
78	78	any person, including the respondent, as a result of the
79	79	respondent's serious mental illness and access to firearms, the
80	80	court, without further notice to the respondent and without a
81	81	hearing, may issue a temporary ex parte order prohibiting the
82	82	respondent from purchasing, owning, possessing, or controlling a
83	83	firearm.
84	84	(b) In a temporary ex parte order, the court may order the
85	85	respondent to:
86	86	(1) relinquish, without delay, any firearms owned by
87	87	or in the actual or constructive possession or control of the
88	88	respondent to a law enforcement agency for holding in the manner
89	89	provided by Article 18.192;
90	90	(2) if applicable, surrender to the court the
91	91	respondent's license to carry a handgun issued under Subchapter H,
92	92	Chapter 411, Government Code; and
93	93	(3) for purposes of determining whether the respondent
94	94	has a serious mental illness, submit to an examination by the local
95	95	mental health authority or a disinterested expert who is qualified
96	96	to diagnose, and experienced in diagnosing, mental illness.
97	97	Art. 7C.05. HEARING; ISSUANCE OF PROTECTIVE ORDER. (a) Not
98	98	later than the 14th day after the later of the date an application
99	99	is filed or the date a temporary ex parte order is issued, the court
100	100	shall hold a hearing on the issuance of the protective order.
101	101	(b) The court shall provide personal notice of the hearing
102	102	to the respondent.
103	103	(c) In determining whether to issue a protective order under
104	104	this article, the court:
105	105	(1) shall consider:
106	106	(A) the results of any examination described by
107	107	Article 7C.04(b)(3);
108	108	(B) any relevant medical or mental health
109	109	information concerning the respondent;
110	110	(C) any history of threats or acts of violence by
111	111	the respondent directed at any person, including the respondent;
112	112	(D) any history of the respondent using,
113	113	attempting to use, or threatening to use physical force against
114	114	another person;
115	115	(E) any recent violation by the respondent of an
116	116	order issued:
117	117	(i) under Chapter 7A or Article 17.292;
118	118	(ii) under Section 6.504 or Chapter 85,
119	119	Family Code;
120	120	(iii) under Chapter 83, Family Code, if the
121	121	temporary ex parte order has been served on the respondent; or
122	122	(iv) by another jurisdiction as provided by
123	123	Chapter 88, Family Code;
124	124	(F) any arrest or conviction of the respondent
125	125	for:
126	126	(i) an offense under Section 42.072, Penal
127	127	Code; or
128	128	(ii) a misdemeanor offense involving
129	129	violence, including family violence;
130	130	(G) any conviction of the respondent for an
131	131	offense under Section 42.09, 42.091, or 42.092, Penal Code; and
132	132	(H) evidence related to the respondent's abuse of
133	133	a controlled substance or alcohol, including evidence of any
134	134	treatment for and recovery from abusing a controlled substance or
135	135	alcohol; and
136	136	(2) may consider any other relevant factor including:
137	137	(A) any previous violation by the respondent of
138	138	an order described by Subdivision (1)(E); and
139	139	(B) evidence regarding the respondent's recent
140	140	acquisition of firearms, ammunition, or other deadly weapons.
141	141	(d) At the close of the hearing, if the court finds by clear
142	142	and convincing evidence that the respondent poses an immediate and
143	143	present danger of causing bodily injury, serious bodily injury, or
144	144	death to any person, including the respondent, as a result of the
145	145	respondent's serious mental illness and access to firearms, the
146	146	court shall issue a protective order that includes a statement of
147	147	the required finding.
148	148	(e) If the court does not make the finding described by
149	149	Subsection (d), the court shall, as applicable, immediately rescind
150	150	any temporary ex parte order issued under Article 7C.04 and return
151	151	the respondent's license to carry a handgun.
152	152	Art. 7C.06. CONTENTS OF PROTECTIVE ORDER. In a protective
153	153	order issued under Article 7C.05, the court shall:
154	154	(1) prohibit the person who is subject to the order
155	155	from purchasing, owning, possessing, or controlling a firearm for
156	156	the duration of the order; and
157	157	(2) order the person to:
158	158	(A) relinquish, without delay, any firearms
159	159	owned by or in the actual or constructive possession or control of
160	160	the person to a law enforcement agency for holding in the manner
161	161	provided by Article 18.192;
162	162	(B) if applicable, surrender to the court the
163	163	person's license to carry a handgun issued under Subchapter H,
164	164	Chapter 411, Government Code; and
165	165	(C) if applicable, receive outpatient mental
166	166	health services if recommended by the local mental health authority
167	167	or expert after the authority or expert performs an examination
168	168	described by Article 7C.04(b)(3).
169	169	Art. 7C.07. DURATION OF PROTECTIVE ORDER. (a) A protective
170	170	order issued under Article 7C.05 is effective until the first
171	171	anniversary of the date the order was issued.
172	172	(b) The court may renew a protective order issued under
173	173	Article 7C.05 for a period not to exceed one year after the order's
174	174	original expiration date. Before renewing the order the court must
175	175	hold a hearing and provide personal notice of the hearing to the
176	176	person who is the subject of the order.
177	177	(c) A person who is the subject of a protective order may
178	178	file a motion not earlier than the 91st day after the date on which
179	179	the order was initially issued or renewed, as applicable,
180	180	requesting that the court review the order and determine whether
181	181	there is a continuing need for the order. After a hearing on the
182	182	motion, if the court fails to make the finding that there is no
183	183	continuing need for the order, the order remains in effect until the
184	184	date the order expires as provided by this article.
185	185	(d) At a hearing to renew or rescind a protective order
186	186	under this article, the court shall consider the factors described
187	187	by Article 7C.05(c).
188	188	Art. 7C.08. NOTICE TO DEPARTMENT OF PUBLIC SAFETY REGARDING
189	189	ISSUANCE OR EXPIRATION OF ORDER. (a) Not later than the 30th day
190	190	after the date a protective order is issued under Article 7C.05, the
191	191	clerk of the issuing court shall provide the following to the
192	192	Department of Public Safety:
193	193	(1) the complete name, race, and sex of the person who
194	194	is the subject of the order;
195	195	(2) any known identifying number of the person,
196	196	including a social security number, driver's license number, or
197	197	state identification number;
198	198	(3) the person's date of birth; and
199	199	(4) if applicable, the person's license to carry a
200	200	handgun issued under Subchapter H, Chapter 411, Government Code.
201	201	(b) Not later than the 30th day after the date the
202	202	protective order expires under Article 7C.07, the clerk of the
203	203	issuing court shall notify the Department of Public Safety of the
204	204	expiration.
205	205	Art. 7C.09. APPLICATION OF OTHER LAW. To the extent
206	206	applicable, except as otherwise provided by this chapter, Title 4,
207	207	Family Code, applies to a protective order issued under this
208	208	chapter.
209	209	SECTION 2. Chapter 18, Code of Criminal Procedure, is
210	210	amended by adding Article 18.192 to read as follows:
211	211	Art. 18.192. HOLDING AND DISPOSITION OF FIREARM
212	212	RELINQUISHED UNDER EXTREME RISK PROTECTIVE ORDER. (a) A law
213	213	enforcement officer who takes possession of a firearm from a person
214	214	who is the subject of an extreme risk protective order issued under
215	215	Chapter 7C shall immediately provide the person a written copy of
216	216	the receipt for the firearm and a written notice of the procedure
217	217	for the return of a firearm under this article.
218	218	(b) Not later than the seventh day after the date a firearm
219	219	subject to disposition under this article is received, the law
220	220	enforcement agency holding the firearm shall notify the court that
221	221	issued the extreme risk protective order that the person who is the
222	222	subject of the order has relinquished the firearm.
223	223	(c) Not later than the 30th day after the date the extreme
224	224	risk protective order is rescinded or expires, the clerk of the
225	225	court shall notify the law enforcement agency of the rescission or
226	226	expiration.
227	227	(d) Not later than the 30th day after the date the law
228	228	enforcement agency holding a firearm subject to disposition under
229	229	this article receives the notice described by Subsection (c), the
230	230	law enforcement agency shall conduct a check of state and national
231	231	criminal history record information to verify whether the person
232	232	may lawfully possess a firearm under 18 U.S.C. Section 922(g) and
233	233	under the law of this state.
234	234	(e) If the check conducted under Subsection (d) verifies
235	235	that the person may lawfully possess a firearm, the law enforcement
236	236	agency shall provide to the person by certified mail written notice
237	237	stating that the firearm may be returned to the person if the person
238	238	submits a written request before the 121st day after the date of the
239	239	notice.
240	240	(f) An unclaimed firearm that is received under an extreme
241	241	risk protective order issued under Chapter 7C may not be destroyed
242	242	or forfeited to the state.
243	243	(g) The law enforcement agency holding the firearm may
244	244	provide for the firearm to be sold by a person who is a licensed
245	245	firearms dealer under 18 U.S.C. Section 923 if:
246	246	(1) the check conducted under Subsection (d) shows
247	247	that the person who was the subject of the extreme risk protective
248	248	order may not lawfully possess a firearm; or
249	249	(2) the notice is provided under Subsection (e) and
250	250	the person who was the subject of the extreme risk protective order
251	251	does not submit, before the 121st day after the date of the notice,
252	252	a written request for the return of the firearm.
253	253	(h) The proceeds from the sale of a firearm under this
254	254	article shall be paid to the owner of the seized firearm, less the
255	255	cost of administering this article with respect to the firearm.
256	256	(i) A law enforcement officer or other employee of a law
257	257	enforcement agency is subject to punishment for contempt of court
258	258	if the officer or employee violates this article with the intent to
259	259	withhold a firearm from a person who, at the time the violation
260	260	occurred:
261	261	(1) was the subject of an extreme risk protective
262	262	order that was rescinded or that expired; and
263	263	(2) may lawfully possess the firearm.
264	264	SECTION 3. Subchapter D, Chapter 411, Government Code, is
265	265	amended by adding Section 411.0522 to read as follows:
266	266	Sec. 411.0522. INFORMATION CONCERNING EXTREME RISK
267	267	PROTECTIVE ORDER. (a) The department by rule shall establish a
268	268	procedure to provide information concerning a person who is the
269	269	subject of an extreme risk protective order to the Federal Bureau of
270	270	Investigation for inclusion in the National Instant Criminal
271	271	Background Check System.
272	272	(b) The procedure must require the department to provide any
273	273	information received under Article 7C.08, Code of Criminal
274	274	Procedure, to the Federal Bureau of Investigation not later than
275	275	the 30th day after the date the department received the
276	276	information.
277	277	SECTION 4. Section 411.172(a), Government Code, is amended
278	278	to read as follows:
279	279	(a) A person is eligible for a license to carry a handgun if
280	280	the person:
281	281	(1) is a legal resident of this state for the six-month
282	282	period preceding the date of application under this subchapter or
283	283	is otherwise eligible for a license under Section 411.173(a);
284	284	(2) is at least 21 years of age;
285	285	(3) has not been convicted of a felony;
286	286	(4) is not charged with the commission of a Class A or
287	287	Class B misdemeanor or equivalent offense, or of an offense under
288	288	Section 42.01, Penal Code, or equivalent offense, or of a felony
289	289	under an information or indictment;
290	290	(5) is not a fugitive from justice for a felony or a
291	291	Class A or Class B misdemeanor or equivalent offense;
292	292	(6) is not a chemically dependent person;
293	293	(7) is not incapable of exercising sound judgment with
294	294	respect to the proper use and storage of a handgun;
295	295	(8) has not, in the five years preceding the date of
296	296	application, been convicted of a Class A or Class B misdemeanor or
297	297	equivalent offense or of an offense under Section 42.01, Penal
298	298	Code, or equivalent offense;
299	299	(9) is fully qualified under applicable federal and
300	300	state law to purchase a handgun;
301	301	(10) has not been finally determined to be delinquent
302	302	in making a child support payment administered or collected by the
303	303	attorney general;
304	304	(11) has not been finally determined to be delinquent
305	305	in the payment of a tax or other money collected by the comptroller,
306	306	the tax collector of a political subdivision of the state, or any
307	307	agency or subdivision of the state;
308	308	(12) is not currently:
309	309	(A) restricted under a court protective order,
310	310	including an extreme risk protective order issued under Chapter 7C,
311	311	Code of Criminal Procedure; or
312	312	(B) subject to a restraining order affecting the
313	313	spousal relationship, other than a restraining order solely
314	314	affecting property interests;
315	315	(13) has not, in the 10 years preceding the date of
316	316	application, been adjudicated as having engaged in delinquent
317	317	conduct violating a penal law of the grade of felony; and
318	318	(14) has not made any material misrepresentation, or
319	319	failed to disclose any material fact, in an application submitted
320	320	pursuant to Section 411.174.
321	321	SECTION 5. Chapter 37, Penal Code, is amended by adding
322	322	Section 37.082 to read as follows:
323	323	Sec. 37.082. FALSE REPORT REGARDING REQUEST FOR EXTREME
324	324	RISK PROTECTIVE ORDER. (a) In this section, "prosecuting
325	325	attorney" means a district attorney, criminal district attorney, or
326	326	county attorney.
327	327	(b) A person commits an offense if, with intent to deceive,
328	328	the person knowingly makes to a prosecuting attorney or peace
329	329	officer a false statement relating to a request that a prosecuting
330	330	attorney file an application for an extreme risk protective order
331	331	under Chapter 7C, Code of Criminal Procedure.
332	332	(c) An offense under this section is a Class B misdemeanor.
333	333	SECTION 6. Section 46.06(a), Penal Code, is amended to read
334	334	as follows:
335	335	(a) A person commits an offense if the person:
336	336	(1) sells, rents, leases, loans, or gives a handgun to
337	337	any person knowing that the person to whom the handgun is to be
338	338	delivered intends to use it unlawfully or in the commission of an
339	339	unlawful act;
340	340	(2) intentionally or knowingly sells, rents, leases,
341	341	or gives or offers to sell, rent, lease, or give to any child
342	342	younger than 18 years of age any firearm, club, or
343	343	location-restricted knife;
344	344	(3) intentionally, knowingly, or recklessly sells a
345	345	firearm or ammunition for a firearm to any person who is
346	346	intoxicated;
347	347	(4) knowingly sells a firearm or ammunition for a
348	348	firearm to any person who has been convicted of a felony before the
349	349	fifth anniversary of the later of the following dates:
350	350	(A) the person's release from confinement
351	351	following conviction of the felony; or
352	352	(B) the person's release from supervision under
353	353	community supervision, parole, or mandatory supervision following
354	354	conviction of the felony;
355	355	(5) sells, rents, leases, loans, or gives a handgun to
356	356	any person knowing that an active protective order is directed to
357	357	the person to whom the handgun is to be delivered;
358	358	(6) sells, rents, leases, loans, or gives a firearm to
359	359	any person knowing that an active extreme risk protective order
360	360	under Chapter 7C, Code of Criminal Procedure, is directed to the
361	361	person to whom the firearm is to be delivered; or
362	362	(7) [(6)] knowingly purchases, rents, leases, or
363	363	receives as a loan or gift from another a handgun while an active
364	364	protective order is directed to the actor.
365	365	SECTION 7. Section 46.06, Penal Code, as amended by this
366	366	Act, applies only to an offense committed on or after the effective
367	367	date of this Act. An offense committed before the effective date of
368	368	this Act is governed by the law in effect on the date the offense was
369	369	committed, and the former law is continued in effect for that
370	370	purpose. For purposes of this section, an offense was committed
371	371	before the effective date of this Act if any element of the offense
372	372	occurred before that date.
373	373	SECTION 8. Not later than October 1, 2019, the Department of
374	374	Public Safety shall adopt rules as required by Section 411.0522,
375	375	Government Code, as added by this Act.
376	376	SECTION 9. This Act takes effect September 1, 2019.