Texas 2021 - 87th Regular

Texas House Bill HB164 Compare Versions

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

Old	New	Differences
1	1	87R1389 TSS-D
2	2	By: Meza H.B. No. 164
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to extreme risk protective orders; creating criminal
8	8	offenses.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Chapter 7B, Code of Criminal Procedure, is
11	11	amended by adding Subchapter D to read as follows:
12	12	SUBCHAPTER D. EXTREME RISK PROTECTIVE ORDER
13	13	Art. 7B.151. DEFINITIONS. In this subchapter:
14	14	(1) "Bodily injury" and "serious bodily injury" have
15	15	the meanings assigned by Section 1.07, Penal Code.
16	16	(2) "Family," "family violence," and "household" have
17	17	the meanings assigned by Chapter 71, Family Code.
18	18	(3) "Firearm" has the meaning assigned by Section
19	19	46.01, Penal Code.
20	20	(4) "Local mental health authority" has the meaning
21	21	assigned by Section 571.003, Health and Safety Code.
22	22	(5) "Serious mental illness" has the meaning assigned
23	23	by Section 1355.001, Insurance Code.
24	24	Art. 7B.152. APPLICATION FOR EXTREME RISK PROTECTIVE ORDER.
25	25	(a) An application for a protective order under this subchapter may
26	26	be filed by:
27	27	(1) a member of the respondent's family or household;
28	28	(2) a parent, guardian, or conservator of a person who
29	29	is under 18 years of age and a member of the respondent's family or
30	30	household; or
31	31	(3) a prosecuting attorney acting:
32	32	(A) on behalf of a person described by
33	33	Subdivision (1) or (2); or
34	34	(B) at the request of a peace officer.
35	35	(b) An application must:
36	36	(1) include:
37	37	(A) detailed allegations, based on personal
38	38	knowledge of a person described by Subsection (a)(1) or (2) or of a
39	39	peace officer, regarding any dangerous behavior or conduct
40	40	exhibited by the respondent as a result of a serious mental illness,
41	41	including any behavior or conduct related to the respondent's use
42	42	of firearms;
43	43	(B) any relevant medical or mental health
44	44	information concerning the respondent, including copies of
45	45	relevant medical or mental health records, if available;
46	46	(C) information concerning the quantity, type,
47	47	and location of any firearms the applicant believes to be in the
48	48	respondent's possession or control, if any;
49	49	(D) any other relevant facts indicating a need
50	50	for a protective order under this subchapter; and
51	51	(E) a statement that the applicant believes the
52	52	respondent poses an immediate and present danger of causing bodily
53	53	injury, serious bodily injury, or death to any person, including
54	54	the respondent, as a result of the respondent's serious mental
55	55	illness and access to firearms; and
56	56	(2) be signed by the applicant under an oath that, to
57	57	the knowledge and belief of the applicant, the facts and
58	58	circumstances contained in the application are true.
59	59	(c) An application for a protective order under this
60	60	subchapter may be filed in a district court, juvenile court having
61	61	the jurisdiction of a district court, statutory county court, or
62	62	constitutional county court in the county in which the applicant or
63	63	the respondent resides.
64	64	Art. 7B.153. CONFIDENTIALITY OF CERTAIN INFORMATION. On
65	65	receiving an application containing specific medical or mental
66	66	health information concerning the respondent, the court shall order
67	67	the clerk to:
68	68	(1) strike the information from the public records of
69	69	the court; and
70	70	(2) maintain a confidential record of the information
71	71	for use only by the court.
72	72	Art. 7B.154. TEMPORARY EX PARTE ORDER. (a) If the court
73	73	finds from the information contained in an application for a
74	74	protective order under this subchapter that there is reasonable
75	75	cause to believe that the respondent poses an immediate and present
76	76	danger of causing bodily injury, serious bodily injury, or death to
77	77	any person, including the respondent, as a result of the
78	78	respondent's serious mental illness and access to firearms, the
79	79	court, without further notice to the respondent and without a
80	80	hearing, may issue a temporary ex parte order prohibiting the
81	81	respondent from purchasing, owning, possessing, or controlling a
82	82	firearm.
83	83	(b) In a temporary ex parte order, the court may order the
84	84	respondent to:
85	85	(1) relinquish, without delay, any firearms owned by
86	86	or in the actual or constructive possession or control of the
87	87	respondent to a law enforcement agency for holding in the manner
88	88	provided by Article 18.192;
89	89	(2) if applicable, surrender to the court the
90	90	respondent's license to carry a handgun issued under Subchapter H,
91	91	Chapter 411, Government Code; and
92	92	(3) for purposes of determining whether the respondent
93	93	has a serious mental illness, submit to an examination by the local
94	94	mental health authority or a disinterested expert who is qualified
95	95	to diagnose, and experienced in diagnosing, mental illness.
96	96	Art. 7B.155. HEARING; ISSUANCE OF PROTECTIVE ORDER. (a)
97	97	Not later than the 14th day after the later of the date an
98	98	application is filed or the date a temporary ex parte order is
99	99	issued, the court shall hold a hearing on the issuance of the
100	100	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 7B.154(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 another provision of this chapter
118	118	or under Article 17.292;
119	119	(ii) under Section 6.504 or Chapter 85,
120	120	Family Code;
121	121	(iii) under Chapter 83, Family Code, if the
122	122	temporary ex parte order has been served on the respondent; or
123	123	(iv) by another jurisdiction as provided by
124	124	Chapter 88, Family Code;
125	125	(F) any arrest or conviction of the respondent
126	126	for:
127	127	(i) an offense under Section 42.072, Penal
128	128	Code; or
129	129	(ii) a misdemeanor offense involving
130	130	violence, including family violence;
131	131	(G) any conviction of the respondent for an
132	132	offense under Section 42.09, 42.091, or 42.092, Penal Code; and
133	133	(H) evidence related to the respondent's abuse of
134	134	a controlled substance or alcohol, including evidence of any
135	135	treatment for and recovery from abusing a controlled substance or
136	136	alcohol; and
137	137	(2) may consider any other relevant factor including:
138	138	(A) any previous violation by the respondent of
139	139	an order described by Subdivision (1)(E); and
140	140	(B) evidence regarding the respondent's recent
141	141	acquisition of firearms, ammunition, or other deadly weapons.
142	142	(d) At the close of the hearing, if the court finds by clear
143	143	and convincing evidence that the respondent poses an immediate and
144	144	present danger of causing bodily injury, serious bodily injury, or
145	145	death to any person, including the respondent, as a result of the
146	146	respondent's serious mental illness and access to firearms, the
147	147	court shall issue a protective order that includes a statement of
148	148	the required finding.
149	149	(e) If the court does not make the finding described by
150	150	Subsection (d), the court shall, as applicable, immediately rescind
151	151	any temporary ex parte order issued under Article 7B.154 and return
152	152	the respondent's license to carry a handgun.
153	153	Art. 7B.156. CONTENTS OF PROTECTIVE ORDER. In a protective
154	154	order issued under Article 7B.155, the court shall:
155	155	(1) prohibit the person who is subject to the order
156	156	from purchasing, owning, possessing, or controlling a firearm for
157	157	the duration of the order;
158	158	(2) order the person to:
159	159	(A) relinquish, without delay, any firearms
160	160	owned by or in the actual or constructive possession or control of
161	161	the person to a law enforcement agency for holding in the manner
162	162	provided by Article 18.192;
163	163	(B) if applicable, surrender to the court the
164	164	person's license to carry a handgun issued under Subchapter H,
165	165	Chapter 411, Government Code; and
166	166	(C) if applicable, receive outpatient mental
167	167	health services if recommended by the local mental health authority
168	168	or expert after the authority or expert performs an examination
169	169	described by Article 7B.154(b)(3); and
170	170	(3) suspend a license to carry a handgun issued under
171	171	Subchapter H, Chapter 411, Government Code, that is held by the
172	172	person.
173	173	Art. 7B.157. DURATION OF PROTECTIVE ORDER. (a) A
174	174	protective order issued under Article 7B.155 is effective until the
175	175	first anniversary of the date the order was issued.
176	176	(b) The court may renew a protective order issued under
177	177	Article 7B.155 for a period not to exceed one year after the order's
178	178	original expiration date. Before renewing the order the court must
179	179	hold a hearing and provide personal notice of the hearing to the
180	180	person who is the subject of the order.
181	181	(c) A person who is the subject of a protective order may
182	182	file a motion not earlier than the 91st day after the date on which
183	183	the order was initially issued or renewed, as applicable,
184	184	requesting that the court review the order and determine whether
185	185	there is a continuing need for the order. After a hearing on the
186	186	motion, if the court fails to make the finding that there is no
187	187	continuing need for the order, the order remains in effect until the
188	188	date the order expires as provided by this article.
189	189	(d) At a hearing to renew or rescind a protective order
190	190	under this article, the court shall consider the factors described
191	191	by Article 7B.155(c).
192	192	Art. 7B.158. NOTICE TO DEPARTMENT OF PUBLIC SAFETY. (a)
193	193	Not later than the 30th day after the date a protective order is
194	194	issued under Article 7B.155, the clerk of the issuing court shall
195	195	provide the following to the Department of Public Safety:
196	196	(1) the complete name, race, and sex of the person who
197	197	is the subject of the order;
198	198	(2) any known identifying number of the person,
199	199	including a social security number, driver's license number, or
200	200	state identification number;
201	201	(3) the person's date of birth;
202	202	(4) if surrendered to the court, the person's license
203	203	to carry a handgun issued under Subchapter H, Chapter 411,
204	204	Government Code; and
205	205	(5) a copy of the order suspending the person's license
206	206	to carry a handgun under Subchapter H, Chapter 411, Government
207	207	Code.
208	208	(b) On receipt of an order suspending a license to carry a
209	209	handgun, the department shall:
210	210	(1) record the suspension of the license in the
211	211	records of the department;
212	212	(2) report the suspension to local law enforcement
213	213	agencies, as appropriate; and
214	214	(3) if the license was not surrendered to the court,
215	215	demand surrender of the suspended license from the license holder.
216	216	(c) Not later than the 30th day after the date the
217	217	protective order expires under Article 7B.157, the clerk of the
218	218	issuing court shall notify the Department of Public Safety of the
219	219	expiration.
220	220	Art. 7B.159. APPLICATION OF OTHER LAW. Except as otherwise
221	221	provided by this subchapter and to the extent applicable, Title 4,
222	222	Family Code, applies to a protective order issued under this
223	223	subchapter.
224	224	SECTION 2. Chapter 18, Code of Criminal Procedure, is
225	225	amended by adding Article 18.192 to read as follows:
226	226	Art. 18.192. HOLDING AND DISPOSITION OF FIREARM
227	227	RELINQUISHED UNDER EXTREME RISK PROTECTIVE ORDER. (a) A law
228	228	enforcement officer who takes possession of a firearm from a person
229	229	who is the subject of an extreme risk protective order issued under
230	230	Subchapter D, Chapter 7B, shall immediately provide the person a
231	231	written copy of the receipt for the firearm and a written notice of
232	232	the procedure for the return of a firearm under this article.
233	233	(b) Not later than the seventh day after the date a firearm
234	234	subject to disposition under this article is received, the law
235	235	enforcement agency holding the firearm shall notify the court that
236	236	issued the extreme risk protective order that the person who is the
237	237	subject of the order has relinquished the firearm.
238	238	(c) Not later than the 30th day after the date the extreme
239	239	risk protective order is rescinded or expires, the clerk of the
240	240	court shall notify the law enforcement agency of the rescission or
241	241	expiration.
242	242	(d) Not later than the 30th day after the date the law
243	243	enforcement agency holding a firearm subject to disposition under
244	244	this article receives the notice described by Subsection (c), the
245	245	law enforcement agency shall conduct a check of state and national
246	246	criminal history record information to verify whether the person
247	247	may lawfully possess a firearm under 18 U.S.C. Section 922(g) and
248	248	under the law of this state.
249	249	(e) If the check conducted under Subsection (d) verifies
250	250	that the person may lawfully possess a firearm, the law enforcement
251	251	agency shall provide to the person by certified mail written notice
252	252	stating that the firearm may be returned to the person if the person
253	253	submits a written request before the 121st day after the date of the
254	254	notice.
255	255	(f) An unclaimed firearm that is received under an extreme
256	256	risk protective order issued under Subchapter D, Chapter 7B, may
257	257	not be destroyed or forfeited to the state.
258	258	(g) The law enforcement agency holding the firearm may
259	259	provide for the firearm to be sold by a person who is a licensed
260	260	firearms dealer under 18 U.S.C. Section 923 if:
261	261	(1) the check conducted under Subsection (d) shows
262	262	that the person who was the subject of the extreme risk protective
263	263	order may not lawfully possess a firearm; or
264	264	(2) the notice is provided under Subsection (e) and
265	265	the person who was the subject of the extreme risk protective order
266	266	does not submit, before the 121st day after the date of the notice,
267	267	a written request for the return of the firearm.
268	268	(h) The proceeds from the sale of a firearm under this
269	269	article shall be paid to the owner of the seized firearm, less the
270	270	cost of administering this article with respect to the firearm.
271	271	(i) A law enforcement officer or other employee of a law
272	272	enforcement agency is subject to punishment for contempt of court
273	273	if the officer or employee violates this article with the intent to
274	274	withhold a firearm from a person who, at the time the violation
275	275	occurred:
276	276	(1) was the subject of an extreme risk protective
277	277	order that was rescinded or that expired; and
278	278	(2) may lawfully possess the firearm.
279	279	SECTION 3. Subchapter D, Chapter 411, Government Code, is
280	280	amended by adding Section 411.0522 to read as follows:
281	281	Sec. 411.0522. INFORMATION CONCERNING EXTREME RISK
282	282	PROTECTIVE ORDER. (a) The department by rule shall establish a
283	283	procedure to provide information concerning a person who is the
284	284	subject of an extreme risk protective order issued under Subchapter
285	285	D, Chapter 7B, Code of Criminal Procedure, to the Federal Bureau of
286	286	Investigation for inclusion in the National Instant Criminal
287	287	Background Check System.
288	288	(b) The procedure must require the department to provide any
289	289	information received under Article 7B.158, Code of Criminal
290	290	Procedure, to the Federal Bureau of Investigation not later than
291	291	the 30th day after the date the department received the
292	292	information.
293	293	SECTION 4. Section 411.172(a), Government Code, is amended
294	294	to read as follows:
295	295	(a) A person is eligible for a license to carry a handgun if
296	296	the person:
297	297	(1) is a legal resident of this state for the six-month
298	298	period preceding the date of application under this subchapter or
299	299	is otherwise eligible for a license under Section 411.173(a);
300	300	(2) is at least 21 years of age;
301	301	(3) has not been convicted of a felony;
302	302	(4) is not charged with the commission of a Class A or
303	303	Class B misdemeanor or equivalent offense, or of an offense under
304	304	Section 42.01, Penal Code, or equivalent offense, or of a felony
305	305	under an information or indictment;
306	306	(5) is not a fugitive from justice for a felony or a
307	307	Class A or Class B misdemeanor or equivalent offense;
308	308	(6) is not a chemically dependent person;
309	309	(7) is not incapable of exercising sound judgment with
310	310	respect to the proper use and storage of a handgun;
311	311	(8) has not, in the five years preceding the date of
312	312	application, been convicted of a Class A or Class B misdemeanor or
313	313	equivalent offense or of an offense under Section 42.01, Penal
314	314	Code, or equivalent offense;
315	315	(9) is fully qualified under applicable federal and
316	316	state law to purchase a handgun;
317	317	(10) has not been finally determined to be delinquent
318	318	in making a child support payment administered or collected by the
319	319	attorney general;
320	320	(11) has not been finally determined to be delinquent
321	321	in the payment of a tax or other money collected by the comptroller,
322	322	the tax collector of a political subdivision of the state, or any
323	323	agency or subdivision of the state;
324	324	(12) is not currently:
325	325	(A) restricted under a court protective order,
326	326	including an extreme risk protective order issued under Subchapter
327	327	D, Chapter 7B, Code of Criminal Procedure; or
328	328	(B) subject to a restraining order affecting the
329	329	spousal relationship, other than a restraining order solely
330	330	affecting property interests;
331	331	(13) has not, in the 10 years preceding the date of
332	332	application, been adjudicated as having engaged in delinquent
333	333	conduct violating a penal law of the grade of felony; and
334	334	(14) has not made any material misrepresentation, or
335	335	failed to disclose any material fact, in an application submitted
336	336	pursuant to Section 411.174.
337	337	SECTION 5. Sections 411.187(a) and (c), Government Code,
338	338	are amended to read as follows:
339	339	(a) The department shall suspend a license under this
340	340	section if the license holder:
341	341	(1) is charged with the commission of a Class A or
342	342	Class B misdemeanor or equivalent offense, or of an offense under
343	343	Section 42.01, Penal Code, or equivalent offense, or of a felony
344	344	under an information or indictment;
345	345	(2) fails to notify the department of a change of
346	346	address, name, or status as required by Section 411.181;
347	347	(3) commits an act of family violence and is the
348	348	subject of an active protective order rendered under Title 4,
349	349	Family Code; [or]
350	350	(4) is arrested for an offense involving family
351	351	violence or an offense under Section 42.072, Penal Code, and is the
352	352	subject of an order for emergency protection issued under Article
353	353	17.292, Code of Criminal Procedure; or
354	354	(5) is the subject of an active protective order
355	355	issued under Subchapter D, Chapter 7B, Code of Criminal Procedure.
356	356	(c) The department shall suspend a license under this
357	357	section:
358	358	(1) for 30 days, if the person's license is subject to
359	359	suspension for a reason listed in Subsection (a)(2)[, (3), or (4),
360	360	except as provided by Subdivision (2)];
361	361	(2) [for not less than one year and not more than three
362	362	years, if the person's license:
363	363	[(A) is subject to suspension for a reason listed
364	364	in Subsection (a), other than the reason listed in Subsection
365	365	(a)(1); and
366	366	[(B) has been previously suspended for the same
367	367	reason;
368	368	[(3)] until dismissal of the charges, if the person's
369	369	license is subject to suspension for the reason listed in
370	370	Subsection (a)(1); or
371	371	(3) [(4)] for the duration of or the period specified
372	372	by:
373	373	(A) the protective order issued under Title 4,
374	374	Family Code, if the person's license is subject to suspension for
375	375	the reason listed in Subsection (a)(3) [(a)(5)]; [or]
376	376	(B) the order for emergency protection issued
377	377	under Article 17.292, Code of Criminal Procedure, if the person's
378	378	license is subject to suspension for the reason listed in
379	379	Subsection (a)(4); or
380	380	(C) the extreme risk protective order issued
381	381	under Subchapter D, Chapter 7B, Code of Criminal Procedure, if the
382	382	person's license is subject to suspension for the reason listed in
383	383	Subsection (a)(5) [(a)(6)].
384	384	SECTION 6. Chapter 37, Penal Code, is amended by adding
385	385	Section 37.083 to read as follows:
386	386	Sec. 37.083. FALSE REPORT REGARDING REQUEST FOR EXTREME
387	387	RISK PROTECTIVE ORDER. (a) In this section, "prosecuting
388	388	attorney" means a district attorney, criminal district attorney, or
389	389	county attorney.
390	390	(b) A person commits an offense if, with intent to deceive,
391	391	the person knowingly makes to a prosecuting attorney or peace
392	392	officer a false statement relating to a request that a prosecuting
393	393	attorney file an application for an extreme risk protective order
394	394	under Subchapter D, Chapter 7B, Code of Criminal Procedure.
395	395	(c) An offense under this section is a Class B misdemeanor.
396	396	SECTION 7. Section 46.06(a), Penal Code, is amended to read
397	397	as follows:
398	398	(a) A person commits an offense if the person:
399	399	(1) sells, rents, leases, loans, or gives a handgun to
400	400	any person knowing that the person to whom the handgun is to be
401	401	delivered intends to use it unlawfully or in the commission of an
402	402	unlawful act;
403	403	(2) intentionally or knowingly sells, rents, leases,
404	404	or gives or offers to sell, rent, lease, or give to any child
405	405	younger than 18 years of age any firearm, club, or
406	406	location-restricted knife;
407	407	(3) intentionally, knowingly, or recklessly sells a
408	408	firearm or ammunition for a firearm to any person who is
409	409	intoxicated;
410	410	(4) knowingly sells a firearm or ammunition for a
411	411	firearm to any person who has been convicted of a felony before the
412	412	fifth anniversary of the later of the following dates:
413	413	(A) the person's release from confinement
414	414	following conviction of the felony; or
415	415	(B) the person's release from supervision under
416	416	community supervision, parole, or mandatory supervision following
417	417	conviction of the felony;
418	418	(5) sells, rents, leases, loans, or gives a handgun to
419	419	any person knowing that an active protective order is directed to
420	420	the person to whom the handgun is to be delivered;
421	421	(6) sells, rents, leases, loans, or gives a firearm to
422	422	any person knowing that an active extreme risk protective order
423	423	under Subchapter D, Chapter 7B, Code of Criminal Procedure, is
424	424	directed to the person to whom the firearm is to be delivered; or
425	425	(7) [(6)] knowingly purchases, rents, leases, or
426	426	receives as a loan or gift from another a handgun while an active
427	427	protective order is directed to the actor.
428	428	SECTION 8. Section 46.06, Penal Code, as amended by this
429	429	Act, applies only to an offense committed on or after the effective
430	430	date of this Act. An offense committed before the effective date of
431	431	this Act is governed by the law in effect on the date the offense was
432	432	committed, and the former law is continued in effect for that
433	433	purpose. For purposes of this section, an offense was committed
434	434	before the effective date of this Act if any element of the offense
435	435	occurred before that date.
436	436	SECTION 9. Not later than October 1, 2021, the Department of
437	437	Public Safety shall adopt rules as required by Section 411.0522,
438	438	Government Code, as added by this Act.
439	439	SECTION 10. This Act takes effect September 1, 2021.