Texas 2021 - 87th Regular

Texas House Bill HB241 Compare Versions

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

Old	New	Differences
1	1	87R65 TSS-D
2	2	By: Ortega H.B. No. 241
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to creating a criminal offense for the unlawful possession
8	8	or transfer of an assault weapon.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Chapter 46, Penal Code, is amended by adding
11	11	Section 46.055 to read as follows:
12	12	Sec. 46.055. UNLAWFUL POSSESSION OR TRANSFER OF ASSAULT
13	13	WEAPON. (a) In this section, "assault weapon" means:
14	14	(1) a semiautomatic centerfire rifle that has the
15	15	capacity to accept a detachable magazine that has:
16	16	(A) a pistol grip that protrudes conspicuously
17	17	beneath the action of the firearm;
18	18	(B) a folding or telescoping stock;
19	19	(C) a thumbhole stock;
20	20	(D) a second handgrip or a protruding grip that
21	21	can be held by the non-trigger hand;
22	22	(E) a flash suppressor; or
23	23	(F) a grenade launcher or flare launcher;
24	24	(2) a semiautomatic centerfire rifle that has a fixed
25	25	magazine that holds more than 10 rounds of ammunition;
26	26	(3) a semiautomatic centerfire rifle that has an
27	27	overall length of less than 30 inches;
28	28	(4) a semiautomatic shotgun that has the capacity to
29	29	accept a detachable magazine;
30	30	(5) a semiautomatic shotgun that has a folding or
31	31	telescoping stock and has:
32	32	(A) a thumbhole stock; or
33	33	(B) a second handgrip or a protruding grip that
34	34	can be held by the non-trigger hand;
35	35	(6) a semiautomatic pistol that has the capacity to
36	36	accept a detachable magazine and has:
37	37	(A) a second handgrip or a protruding grip that
38	38	can be held by the non-trigger hand;
39	39	(B) an ammunition magazine that attaches to the
40	40	pistol outside of the pistol grip;
41	41	(C) a threaded barrel capable of accepting a
42	42	flash suppressor, forward handgrip, or silencer; or
43	43	(D) a shroud that is attached to or partially or
44	44	completely encircles the barrel and that permits the shooter to
45	45	hold the firearm with the non-trigger hand without being burned;
46	46	(7) a semiautomatic pistol that has a fixed magazine
47	47	that holds more than 10 rounds of ammunition;
48	48	(8) a revolving cylinder shotgun; or
49	49	(9) a conversion kit, part, or combination of parts
50	50	from which an assault weapon can be assembled or with which a
51	51	firearm may be converted into a weapon described by Subdivision
52	52	(1), (2), (3), (4), (5), (6), (7), or (8).
53	53	(b) A person commits an offense if the person knowingly:
54	54	(1) possesses an assault weapon; or
55	55	(2) sells, offers to sell, or otherwise transfers an
56	56	assault weapon.
57	57	(c) An offense under this section is a Class A misdemeanor.
58	58	(d) It is a defense to prosecution under this section that
59	59	the actor engaged in the conduct while engaged in the actual
60	60	discharge of official duties, or directly en route to or from the
61	61	person's place of assignment, as:
62	62	(1) a peace officer; or
63	63	(2) a member of the armed forces or state military
64	64	forces as defined by Section 431.001, Government Code.
65	65	(e) It is a defense to prosecution under Subsection (b)(1)
66	66	that the actor lawfully possessed the assault weapon on August 31,
67	67	2021.
68	68	(f) If conduct that constitutes an offense under this
69	69	section also constitutes an offense under any other law, the actor
70	70	may be prosecuted under this section, the other law, or both.
71	71	SECTION 2. Section 5.141(a), Alcoholic Beverage Code, is
72	72	amended to read as follows:
73	73	(a) A commissioned inspector or representative of the
74	74	commission may purchase for an amount set by the commission, not to
75	75	exceed fair market value, a firearm issued to the inspector or
76	76	representative by the commission if:
77	77	(1) the firearm is not:
78	78	(A) listed as a prohibited weapon under Section
79	79	46.05, Penal Code; or
80	80	(B) an assault weapon as defined by Section
81	81	46.055, Penal Code; [,] and
82	82	(2) [if] the firearm is retired by the commission for
83	83	replacement purposes.
84	84	SECTION 3. Article 15.27(h), Code of Criminal Procedure, is
85	85	amended to read as follows:
86	86	(h) This article applies to any felony offense and the
87	87	following misdemeanors:
88	88	(1) an offense under Section 20.02, 21.08, 22.01,
89	89	22.05, 22.07, or 71.02, Penal Code;
90	90	(2) the unlawful use, sale, or possession of a
91	91	controlled substance, drug paraphernalia, or marihuana, as defined
92	92	by Chapter 481, Health and Safety Code; or
93	93	(3) the unlawful possession of any of the weapons or
94	94	devices listed in Sections 46.01(1)-(14) or Section 46.01(16)
95	95	[(16)], Penal Code, [or] a weapon listed as a prohibited weapon
96	96	under Section 46.05, Penal Code, or an assault weapon as defined by
97	97	Section 46.055, Penal Code.
98	98	SECTION 4. The heading to Article 18.18, Code of Criminal
99	99	Procedure, is amended to read as follows:
100	100	Art. 18.18. DISPOSITION OF GAMBLING PARAPHERNALIA,
101	101	PROHIBITED WEAPON, ASSAULT WEAPON, CRIMINAL INSTRUMENT, AND OTHER
102	102	CONTRABAND.
103	103	SECTION 5. Articles 18.18(a), (b), (e), (f), and (g), Code
104	104	of Criminal Procedure, are amended to read as follows:
105	105	(a) Following the final conviction of a person for
106	106	possession of a gambling device or equipment, altered gambling
107	107	equipment, or gambling paraphernalia, for an offense involving a
108	108	criminal instrument, for an offense involving an obscene device or
109	109	material, for an offense involving child pornography, or for an
110	110	offense involving a scanning device or re-encoder, the court
111	111	entering the judgment of conviction shall order that the machine,
112	112	device, gambling equipment or gambling paraphernalia, instrument,
113	113	obscene device or material, child pornography, or scanning device
114	114	or re-encoder be destroyed or forfeited to the state. Not later than
115	115	the 30th day after the final conviction of a person for an offense
116	116	involving a prohibited weapon or an assault weapon, the court
117	117	entering the judgment of conviction on its own motion, on the motion
118	118	of the prosecuting attorney in the case, or on the motion of the law
119	119	enforcement agency initiating the complaint on notice to the
120	120	prosecuting attorney in the case if the prosecutor fails to move for
121	121	the order shall order that the prohibited weapon or assault weapon
122	122	be destroyed or forfeited to the law enforcement agency that
123	123	initiated the complaint. If the court fails to enter the order
124	124	within the time required by this subsection, any magistrate in the
125	125	county in which the offense occurred may enter the order. Following
126	126	the final conviction of a person for an offense involving dog
127	127	fighting, the court entering the judgment of conviction shall order
128	128	that any dog-fighting equipment be destroyed or forfeited to the
129	129	state. Destruction of dogs, if necessary, must be carried out by a
130	130	veterinarian licensed in this state or, if one is not available, by
131	131	trained personnel of a humane society or an animal shelter. If
132	132	forfeited, the court shall order the contraband delivered to the
133	133	state, any political subdivision of the state, or to any state
134	134	institution or agency. If gambling proceeds were seized, the court
135	135	shall order them forfeited to the state and shall transmit them to
136	136	the grand jury of the county in which they were seized for use in
137	137	investigating alleged violations of the Penal Code, or to the
138	138	state, any political subdivision of the state, or to any state
139	139	institution or agency.
140	140	(b) If there is no prosecution or conviction following
141	141	seizure, the magistrate to whom the return was made shall notify in
142	142	writing the person found in possession of the alleged gambling
143	143	device or equipment, altered gambling equipment or gambling
144	144	paraphernalia, gambling proceeds, prohibited weapon, assault
145	145	weapon, obscene device or material, child pornography, scanning
146	146	device or re-encoder, criminal instrument, or dog-fighting
147	147	equipment to show cause why the property seized should not be
148	148	destroyed or the proceeds forfeited. The magistrate, on the motion
149	149	of the law enforcement agency seizing a prohibited weapon or an
150	150	assault weapon, shall order the weapon destroyed or forfeited to
151	151	the law enforcement agency seizing the weapon, unless a person
152	152	shows cause as to why the prohibited weapon or assault weapon should
153	153	not be destroyed or forfeited. A law enforcement agency shall make a
154	154	motion under this section in a timely manner after the time at which
155	155	the agency is informed in writing by the attorney representing the
156	156	state that no prosecution will arise from the seizure.
157	157	(e) Any person interested in the alleged gambling device or
158	158	equipment, altered gambling equipment or gambling paraphernalia,
159	159	gambling proceeds, prohibited weapon, assault weapon, obscene
160	160	device or material, child pornography, scanning device or
161	161	re-encoder, criminal instrument, or dog-fighting equipment seized
162	162	must appear before the magistrate on the 20th day following the date
163	163	the notice was mailed or posted. Failure to timely appear forfeits
164	164	any interest the person may have in the property or proceeds seized,
165	165	and no person after failing to timely appear may contest
166	166	destruction or forfeiture.
167	167	(f) If a person timely appears to show cause why the
168	168	property or proceeds should not be destroyed or forfeited, the
169	169	magistrate shall conduct a hearing on the issue and determine the
170	170	nature of property or proceeds and the person's interest therein.
171	171	Unless the person proves by a preponderance of the evidence that the
172	172	property or proceeds is not gambling equipment, altered gambling
173	173	equipment, gambling paraphernalia, gambling device, gambling
174	174	proceeds, prohibited weapon, assault weapon, obscene device or
175	175	material, child pornography, criminal instrument, scanning device
176	176	or re-encoder, or dog-fighting equipment and that he is entitled to
177	177	possession, the magistrate shall dispose of the property or
178	178	proceeds in accordance with Paragraph (a) of this article.
179	179	(g) For purposes of this article:
180	180	(1) "criminal instrument" has the meaning defined in
181	181	the Penal Code;
182	182	(2) "gambling device or equipment, altered gambling
183	183	equipment or gambling paraphernalia" has the meaning defined in the
184	184	Penal Code;
185	185	(3) "prohibited weapon" has the meaning defined in the
186	186	Penal Code;
187	187	(4) "dog-fighting equipment" means:
188	188	(A) equipment used for training or handling a
189	189	fighting dog, including a harness, treadmill, cage, decoy, pen,
190	190	house for keeping a fighting dog, feeding apparatus, or training
191	191	pen;
192	192	(B) equipment used for transporting a fighting
193	193	dog, including any automobile, or other vehicle, and its
194	194	appurtenances which are intended to be used as a vehicle for
195	195	transporting a fighting dog;
196	196	(C) equipment used to promote or advertise an
197	197	exhibition of dog fighting, including a printing press or similar
198	198	equipment, paper, ink, or photography equipment; or
199	199	(D) a dog trained, being trained, or intended to
200	200	be used to fight with another dog;
201	201	(5) "obscene device" and "obscene" have the meanings
202	202	assigned by Section 43.21, Penal Code;
203	203	(6) "re-encoder" has the meaning assigned by Section
204	204	522.001, Business & Commerce Code;
205	205	(7) "scanning device" has the meaning assigned by
206	206	Section 522.001, Business & Commerce Code; [and]
207	207	(8) "obscene material" and "child pornography"
208	208	include digital images and the media and equipment on which those
209	209	images are stored; and
210	210	(9) "assault weapon" has the meaning assigned by
211	211	Section 46.055, Penal Code.
212	212	SECTION 6. Articles 18.19(a) and (d), Code of Criminal
213	213	Procedure, are amended to read as follows:
214	214	(a) Weapons seized in connection with an offense involving
215	215	the use of a weapon or an offense under Penal Code Chapter 46 shall
216	216	be held by the law enforcement agency making the seizure, subject to
217	217	the following provisions, unless:
218	218	(1) the weapon is a prohibited weapon identified in
219	219	Penal Code Chapter 46, or an assault weapon as defined by Section
220	220	46.055, Penal Code, in which event Article 18.18 of this code
221	221	applies; or
222	222	(2) the weapon is alleged to be stolen property, in
223	223	which event Chapter 47 of this code applies.
224	224	(d) A person either convicted or receiving deferred
225	225	adjudication under Chapter 46, Penal Code, is entitled to the
226	226	weapon seized upon request to the court in which the person was
227	227	convicted or placed on deferred adjudication. However, the court
228	228	entering the judgment shall order the weapon destroyed, sold at
229	229	public sale by the law enforcement agency holding the weapon or by
230	230	an auctioneer licensed under Chapter 1802, Occupations Code, or
231	231	forfeited to the state for use by the law enforcement agency holding
232	232	the weapon or by a county forensic laboratory designated by the
233	233	court if:
234	234	(1) the person does not request the weapon before the
235	235	61st day after the date of the judgment of conviction or the order
236	236	placing the person on deferred adjudication;
237	237	(2) the person has been previously convicted under
238	238	Chapter 46, Penal Code;
239	239	(3) the weapon is one defined as a prohibited weapon or
240	240	an assault weapon under Chapter 46, Penal Code;
241	241	(4) the offense for which the person is convicted or
242	242	receives deferred adjudication was committed in or on the premises
243	243	of a playground, school, video arcade facility, or youth center, as
244	244	those terms are defined by Section 481.134, Health and Safety Code;
245	245	or
246	246	(5) the court determines based on the prior criminal
247	247	history of the defendant or based on the circumstances surrounding
248	248	the commission of the offense that possession of the seized weapon
249	249	would pose a threat to the community or one or more individuals.
250	250	SECTION 7. Section 37.005(c), Education Code, is amended to
251	251	read as follows:
252	252	(c) A student who is enrolled in a grade level below grade
253	253	three may not be placed in out-of-school suspension unless while on
254	254	school property or while attending a school-sponsored or
255	255	school-related activity on or off of school property, the student
256	256	engages in:
257	257	(1) conduct that contains the elements of an offense
258	258	related to weapons under Section 46.02, [or] 46.05, or 46.055,
259	259	Penal Code;
260	260	(2) conduct that contains the elements of a violent
261	261	offense under Section 22.01, 22.011, 22.02, or 22.021, Penal Code;
262	262	or
263	263	(3) selling, giving, or delivering to another person
264	264	or possessing, using, or being under the influence of any amount of:
265	265	(A) marihuana or a controlled substance, as
266	266	defined by Chapter 481, Health and Safety Code, or by 21 U.S.C.
267	267	Section 801 et seq.;
268	268	(B) a dangerous drug, as defined by Chapter 483,
269	269	Health and Safety Code; or
270	270	(C) an alcoholic beverage, as defined by Section
271	271	1.04, Alcoholic Beverage Code.
272	272	SECTION 8. Section 37.007(a), Education Code, is amended to
273	273	read as follows:
274	274	(a) Except as provided by Subsection (k), a student shall be
275	275	expelled from a school if the student, on school property or while
276	276	attending a school-sponsored or school-related activity on or off
277	277	of school property:
278	278	(1) engages in conduct that contains the elements of
279	279	the offense of unlawfully carrying weapons under Section 46.02,
280	280	Penal Code, [or] elements of an offense relating to prohibited
281	281	weapons under Section 46.05, Penal Code, or elements of an offense
282	282	relating to assault weapons under Section 46.055, Penal Code;
283	283	(2) engages in conduct that contains the elements of
284	284	the offense of:
285	285	(A) aggravated assault under Section 22.02,
286	286	Penal Code, sexual assault under Section 22.011, Penal Code, or
287	287	aggravated sexual assault under Section 22.021, Penal Code;
288	288	(B) arson under Section 28.02, Penal Code;
289	289	(C) murder under Section 19.02, Penal Code,
290	290	capital murder under Section 19.03, Penal Code, or criminal
291	291	attempt, under Section 15.01, Penal Code, to commit murder or
292	292	capital murder;
293	293	(D) indecency with a child under Section 21.11,
294	294	Penal Code;
295	295	(E) aggravated kidnapping under Section 20.04,
296	296	Penal Code;
297	297	(F) aggravated robbery under Section 29.03,
298	298	Penal Code;
299	299	(G) manslaughter under Section 19.04, Penal
300	300	Code;
301	301	(H) criminally negligent homicide under Section
302	302	19.05, Penal Code; or
303	303	(I) continuous sexual abuse of young child or
304	304	children under Section 21.02, Penal Code; or
305	305	(3) engages in conduct specified by Section
306	306	37.006(a)(2)(C) or (D), if the conduct is punishable as a felony.
307	307	SECTION 9. Section 411.020(a), Government Code, is amended
308	308	to read as follows:
309	309	(a) A commissioned officer of the department may purchase
310	310	for an amount set by the department, not to exceed fair market
311	311	value, a firearm issued to the officer by the department if:
312	312	(1) the firearm is not:
313	313	(A) listed as a prohibited weapon under Section
314	314	46.05, Penal Code; or
315	315	(B) an assault weapon as defined by Section
316	316	46.055, Penal Code; [,] and
317	317	(2) [if] the firearm is retired by the department for
318	318	replacement purposes.
319	319	SECTION 10. Section 614.051(a), Government Code, is amended
320	320	to read as follows:
321	321	(a) An individual may purchase a firearm from a governmental
322	322	entity if:
323	323	(1) the individual was a peace officer commissioned by
324	324	the entity;
325	325	(2) the individual was honorably retired from the
326	326	individual's commission by the entity;
327	327	(3) the firearm had been previously issued to the
328	328	individual by the entity; and
329	329	(4) the firearm is not a prohibited weapon under
330	330	Section 46.05, Penal Code, or an assault weapon as defined by
331	331	Section 46.055, Penal Code.
332	332	SECTION 11. Section 614.052(a), Government Code, is amended
333	333	to read as follows:
334	334	(a) An individual listed under Subsection (b) may purchase a
335	335	firearm from a governmental entity if:
336	336	(1) the firearm had been previously issued by the
337	337	entity to a peace officer commissioned by the entity who died while
338	338	commissioned, without regard to whether the officer died while
339	339	discharging the officer's official duties; and
340	340	(2) the firearm is not a prohibited weapon under
341	341	Section 46.05, Penal Code, or an assault weapon as defined by
342	342	Section 46.055, Penal Code.
343	343	SECTION 12. Section 11.0193(a), Parks and Wildlife Code, is
344	344	amended to read as follows:
345	345	(a) An employee commissioned by the director as a peace
346	346	officer may purchase for an amount set by the department, not to
347	347	exceed fair market value, a firearm issued to the person by the
348	348	department if:
349	349	(1) the firearm is not:
350	350	(A) listed as a prohibited weapon under Section
351	351	46.05, Penal Code; or
352	352	(B) an assault weapon as defined by Section
353	353	46.055, Penal Code; and
354	354	(2) the firearm is retired by the department for
355	355	replacement purposes.
356	356	SECTION 13. Section 9.31(b), Penal Code, is amended to read
357	357	as follows:
358	358	(b) The use of force against another is not justified:
359	359	(1) in response to verbal provocation alone;
360	360	(2) to resist an arrest or search that the actor knows
361	361	is being made by a peace officer, or by a person acting in a peace
362	362	officer's presence and at his direction, even though the arrest or
363	363	search is unlawful, unless the resistance is justified under
364	364	Subsection (c);
365	365	(3) if the actor consented to the exact force used or
366	366	attempted by the other;
367	367	(4) if the actor provoked the other's use or attempted
368	368	use of unlawful force, unless:
369	369	(A) the actor abandons the encounter, or clearly
370	370	communicates to the other his intent to do so reasonably believing
371	371	he cannot safely abandon the encounter; and
372	372	(B) the other nevertheless continues or attempts
373	373	to use unlawful force against the actor; or
374	374	(5) if the actor sought an explanation from or
375	375	discussion with the other person concerning the actor's differences
376	376	with the other person while the actor was:
377	377	(A) carrying a weapon in violation of Section
378	378	46.02; [or]
379	379	(B) possessing or transporting a weapon in
380	380	violation of Section 46.05; or
381	381	(C) possessing an assault weapon in violation of
382	382	Section 46.055.
383	383	SECTION 14. This Act takes effect September 1, 2021.