Texas 2021 - 87th Regular

Texas Senate Bill SB110 Compare Versions

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

Old	New	Differences
1	1	87R1794 TSS-D
2	2	By: West S.B. No. 110
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;
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	(F) for an applicant described by Subsection
57	57	(a)(3), a statement that the applicant provided notice under
58	58	Subsection (d) or that the applicant intends to provide that notice
59	59	promptly and indicating the manner in which the notice is to be
60	60	provided; and
61	61	(2) be signed by the applicant under an oath that, to
62	62	the knowledge and belief of the applicant, the facts and
63	63	circumstances contained in the application are true.
64	64	(c) An application for a protective order under this
65	65	subchapter may be filed in a district court, juvenile court having
66	66	the jurisdiction of a district court, statutory county court, or
67	67	constitutional county court in the county in which the applicant or
68	68	the respondent resides.
69	69	(d) An applicant described by Subsection (a)(3), before
70	70	filing an application under this subchapter or promptly following
71	71	filing the application, shall make a good faith attempt to notify a
72	72	member of the respondent's family or household and any other person
73	73	that the applicant believes may be at risk as a result of the
74	74	respondent's dangerous behavior or conduct of:
75	75	(1) the application filed or the applicant's intent to
76	76	file an application under this subchapter; and
77	77	(2) available mental health, family violence, and
78	78	counseling resources.
79	79	Art. 7B.153. CONFIDENTIALITY OF CERTAIN INFORMATION. On
80	80	receiving an application containing specific medical or mental
81	81	health information concerning the respondent, the court shall order
82	82	the clerk to:
83	83	(1) strike the information from the public records of
84	84	the court; and
85	85	(2) maintain a confidential record of the information
86	86	for use only by the court.
87	87	Art. 7B.154. TEMPORARY EX PARTE ORDER. (a) If the court
88	88	finds from the information contained in an application for a
89	89	protective order under this subchapter that there is reasonable
90	90	cause to believe that the respondent poses an immediate and present
91	91	danger of causing bodily injury, serious bodily injury, or death to
92	92	any person, including the respondent, as a result of the
93	93	respondent's serious mental illness and access to firearms, the
94	94	court, without further notice to the respondent and without a
95	95	hearing, may issue a temporary ex parte order prohibiting the
96	96	respondent from purchasing, owning, possessing, or controlling a
97	97	firearm.
98	98	(b) In a temporary ex parte order, the court may order the
99	99	respondent to:
100	100	(1) relinquish, without delay, any firearms owned by
101	101	or in the actual or constructive possession or control of the
102	102	respondent to a law enforcement agency for holding in the manner
103	103	provided by Article 18.192;
104	104	(2) if applicable, surrender to the court the
105	105	respondent's license to carry a handgun issued under Subchapter H,
106	106	Chapter 411, Government Code; and
107	107	(3) for purposes of determining whether the respondent
108	108	has a serious mental illness, submit to an examination by the local
109	109	mental health authority or a disinterested expert who is qualified
110	110	to diagnose, and experienced in diagnosing, mental illness.
111	111	Art. 7B.155. HEARING; ISSUANCE OF PROTECTIVE ORDER. (a)
112	112	Not later than the 14th day after the later of the date an
113	113	application is filed or the date a temporary ex parte order is
114	114	issued, the court shall hold a hearing on the issuance of the
115	115	protective order.
116	116	(b) The court shall provide personal notice of the hearing
117	117	to the respondent.
118	118	(c) In determining whether to issue a protective order under
119	119	this article, the court:
120	120	(1) shall consider:
121	121	(A) the results of any examination described by
122	122	Article 7B.154(b)(3);
123	123	(B) any relevant medical or mental health
124	124	information concerning the respondent;
125	125	(C) any history of threats or acts of violence by
126	126	the respondent directed at any person, including the respondent;
127	127	(D) any history of the respondent using,
128	128	attempting to use, or threatening to use physical force against
129	129	another person;
130	130	(E) any recent violation by the respondent of an
131	131	order issued:
132	132	(i) under another provision of this chapter
133	133	or under Article 17.292;
134	134	(ii) under Section 6.504 or Chapter 85,
135	135	Family Code;
136	136	(iii) under Chapter 83, Family Code, if the
137	137	temporary ex parte order has been served on the respondent; or
138	138	(iv) by another jurisdiction as provided by
139	139	Chapter 88, Family Code;
140	140	(F) any arrest or conviction of the respondent
141	141	for:
142	142	(i) an offense under Section 42.072, Penal
143	143	Code; or
144	144	(ii) a misdemeanor offense involving
145	145	violence, including family violence;
146	146	(G) any conviction of the respondent for an
147	147	offense under Section 42.09, 42.091, or 42.092, Penal Code; and
148	148	(H) evidence related to the respondent's abuse of
149	149	a controlled substance or alcohol, including evidence of any
150	150	treatment for and recovery from abusing a controlled substance or
151	151	alcohol; and
152	152	(2) may consider any other relevant factor including:
153	153	(A) any previous violation by the respondent of
154	154	an order described by Subdivision (1)(E); and
155	155	(B) evidence regarding the respondent's recent
156	156	acquisition of firearms, ammunition, or other deadly weapons.
157	157	(d) At the close of the hearing, if the court finds by clear
158	158	and convincing evidence that the respondent poses an immediate and
159	159	present danger of causing bodily injury, serious bodily injury, or
160	160	death to any person, including the respondent, as a result of the
161	161	respondent's serious mental illness and access to firearms, the
162	162	court shall issue a protective order that includes a statement of
163	163	the required finding.
164	164	(e) If the court does not make the finding described by
165	165	Subsection (d), the court shall, as applicable, immediately rescind
166	166	any temporary ex parte order issued under Article 7B.154 and return
167	167	the respondent's license to carry a handgun.
168	168	Art. 7B.156. CONTENTS OF PROTECTIVE ORDER. In a protective
169	169	order issued under Article 7B.155, the court shall:
170	170	(1) prohibit the person who is subject to the order
171	171	from purchasing, owning, possessing, or controlling a firearm for
172	172	the duration of the order;
173	173	(2) order the person to:
174	174	(A) relinquish, without delay, any firearms
175	175	owned by or in the actual or constructive possession or control of
176	176	the person to a law enforcement agency for holding in the manner
177	177	provided by Article 18.192;
178	178	(B) if applicable, surrender to the court the
179	179	person's license to carry a handgun issued under Subchapter H,
180	180	Chapter 411, Government Code; and
181	181	(C) if applicable, receive outpatient mental
182	182	health services if recommended by the local mental health authority
183	183	or expert after the authority or expert performs an examination
184	184	described by Article 7B.154(b)(3); and
185	185	(3) suspend a license to carry a handgun issued under
186	186	Subchapter H, Chapter 411, Government Code, that is held by the
187	187	person.
188	188	Art. 7B.157. DURATION OF PROTECTIVE ORDER. (a) A
189	189	protective order issued under Article 7B.155 is effective until the
190	190	first anniversary of the date the order was issued.
191	191	(b) The court may renew a protective order issued under
192	192	Article 7B.155 for a period not to exceed one year after the order's
193	193	original expiration date. Before renewing the order the court must
194	194	hold a hearing and provide personal notice of the hearing to the
195	195	person who is the subject of the order.
196	196	(c) A person who is the subject of a protective order may
197	197	file a motion not earlier than the 91st day after the date on which
198	198	the order was initially issued or renewed, as applicable,
199	199	requesting that the court review the order and determine whether
200	200	there is a continuing need for the order. After a hearing on the
201	201	motion, if the court fails to make the finding that there is no
202	202	continuing need for the order, the order remains in effect until the
203	203	date the order expires as provided by this article.
204	204	(d) At a hearing to renew or rescind a protective order
205	205	under this article, the court shall consider the factors described
206	206	by Article 7B.155(c).
207	207	Art. 7B.158. NOTICE TO DEPARTMENT OF PUBLIC SAFETY. (a)
208	208	Not later than the 30th day after the date a protective order is
209	209	issued under Article 7B.155, the clerk of the issuing court shall
210	210	provide the following to the Department of Public Safety:
211	211	(1) the complete name, race, and sex of the person who
212	212	is the subject of the order;
213	213	(2) any known identifying number of the person,
214	214	including a social security number, driver's license number, or
215	215	state identification number;
216	216	(3) the person's date of birth;
217	217	(4) if surrendered to the court, the person's license
218	218	to carry a handgun issued under Subchapter H, Chapter 411,
219	219	Government Code; and
220	220	(5) a copy of the order suspending the person's license
221	221	to carry a handgun under Subchapter H, Chapter 411, Government
222	222	Code.
223	223	(b) On receipt of an order suspending a license to carry a
224	224	handgun, the Department of Public Safety shall:
225	225	(1) record the suspension of the license in the
226	226	records of the department;
227	227	(2) report the suspension to local law enforcement
228	228	agencies, as appropriate; and
229	229	(3) if the license was not surrendered to the court,
230	230	demand surrender of the suspended license from the license holder.
231	231	(c) Not later than the 30th day after the date the
232	232	protective order expires under Article 7B.157, the clerk of the
233	233	issuing court shall notify the Department of Public Safety of the
234	234	expiration.
235	235	Art. 7B.159. APPLICATION OF OTHER LAW. Except as otherwise
236	236	provided by this subchapter and to the extent applicable, Title 4,
237	237	Family Code, applies to a protective order issued under this
238	238	subchapter.
239	239	SECTION 2. Chapter 18, Code of Criminal Procedure, is
240	240	amended by adding Article 18.192 to read as follows:
241	241	Art. 18.192. HOLDING AND DISPOSITION OF FIREARM
242	242	RELINQUISHED UNDER EXTREME RISK PROTECTIVE ORDER. (a) A law
243	243	enforcement officer who takes possession of a firearm from a person
244	244	who is the subject of an extreme risk protective order issued under
245	245	Subchapter D, Chapter 7B, shall immediately provide the person a
246	246	written copy of the receipt for the firearm and a written notice of
247	247	the procedure for the return of a firearm under this article.
248	248	(b) Not later than the seventh day after the date a firearm
249	249	subject to disposition under this article is received, the law
250	250	enforcement agency holding the firearm shall notify the court that
251	251	issued the extreme risk protective order that the person who is the
252	252	subject of the order has relinquished the firearm.
253	253	(c) Not later than the 30th day after the date the extreme
254	254	risk protective order is rescinded or expires, the clerk of the
255	255	court shall notify the law enforcement agency of the rescission or
256	256	expiration.
257	257	(d) Not later than the 30th day after the date the law
258	258	enforcement agency holding a firearm subject to disposition under
259	259	this article receives the notice described by Subsection (c), the
260	260	law enforcement agency shall conduct a check of state and national
261	261	criminal history record information to verify whether the person
262	262	may lawfully possess a firearm under 18 U.S.C. Section 922(g) and
263	263	under the law of this state.
264	264	(e) If the check conducted under Subsection (d) verifies
265	265	that the person may lawfully possess a firearm, the law enforcement
266	266	agency shall provide to the person by certified mail written notice
267	267	stating that the firearm may be returned to the person if the person
268	268	submits a written request before the 121st day after the date of the
269	269	notice.
270	270	(f) An unclaimed firearm that is received under an extreme
271	271	risk protective order issued under Subchapter D, Chapter 7B, may
272	272	not be destroyed or forfeited to the state.
273	273	(g) The law enforcement agency holding the firearm may
274	274	provide for the firearm to be sold by a person who is a licensed
275	275	firearms dealer under 18 U.S.C. Section 923 if:
276	276	(1) the check conducted under Subsection (d) shows
277	277	that the person who was the subject of the extreme risk protective
278	278	order may not lawfully possess a firearm; or
279	279	(2) the notice is provided under Subsection (e) and
280	280	the person who was the subject of the extreme risk protective order
281	281	does not submit, before the 121st day after the date of the notice,
282	282	a written request for the return of the firearm.
283	283	(h) The proceeds from the sale of a firearm under this
284	284	article shall be paid to the owner of the seized firearm, less the
285	285	cost of administering this article with respect to the firearm.
286	286	(i) A law enforcement officer or other employee of a law
287	287	enforcement agency is subject to punishment for contempt of court
288	288	if the officer or employee violates this article with the intent to
289	289	withhold a firearm from a person who, at the time the violation
290	290	occurred:
291	291	(1) was the subject of an extreme risk protective
292	292	order that was rescinded or that expired; and
293	293	(2) may lawfully possess the firearm.
294	294	SECTION 3. Subchapter D, Chapter 411, Government Code, is
295	295	amended by adding Section 411.0522 to read as follows:
296	296	Sec. 411.0522. INFORMATION CONCERNING EXTREME RISK
297	297	PROTECTIVE ORDER. (a) The department by rule shall establish a
298	298	procedure to provide information concerning a person who is the
299	299	subject of an extreme risk protective order issued under Subchapter
300	300	D, Chapter 7B, Code of Criminal Procedure, to the Federal Bureau of
301	301	Investigation for inclusion in the National Instant Criminal
302	302	Background Check System.
303	303	(b) The procedure must require the department to provide any
304	304	information received under Article 7B.158, Code of Criminal
305	305	Procedure, to the Federal Bureau of Investigation not later than
306	306	the 30th day after the date the department received the
307	307	information.
308	308	SECTION 4. Section 411.172(a), Government Code, is amended
309	309	to read as follows:
310	310	(a) A person is eligible for a license to carry a handgun if
311	311	the person:
312	312	(1) is a legal resident of this state for the six-month
313	313	period preceding the date of application under this subchapter or
314	314	is otherwise eligible for a license under Section 411.173(a);
315	315	(2) is at least 21 years of age;
316	316	(3) has not been convicted of a felony;
317	317	(4) is not charged with the commission of a Class A or
318	318	Class B misdemeanor or equivalent offense, or of an offense under
319	319	Section 42.01, Penal Code, or equivalent offense, or of a felony
320	320	under an information or indictment;
321	321	(5) is not a fugitive from justice for a felony or a
322	322	Class A or Class B misdemeanor or equivalent offense;
323	323	(6) is not a chemically dependent person;
324	324	(7) is not incapable of exercising sound judgment with
325	325	respect to the proper use and storage of a handgun;
326	326	(8) has not, in the five years preceding the date of
327	327	application, been convicted of a Class A or Class B misdemeanor or
328	328	equivalent offense or of an offense under Section 42.01, Penal
329	329	Code, or equivalent offense;
330	330	(9) is fully qualified under applicable federal and
331	331	state law to purchase a handgun;
332	332	(10) has not been finally determined to be delinquent
333	333	in making a child support payment administered or collected by the
334	334	attorney general;
335	335	(11) has not been finally determined to be delinquent
336	336	in the payment of a tax or other money collected by the comptroller,
337	337	the tax collector of a political subdivision of the state, or any
338	338	agency or subdivision of the state;
339	339	(12) is not currently:
340	340	(A) restricted under a court protective order,
341	341	including an extreme risk protective order issued under Subchapter
342	342	D, Chapter 7B, Code of Criminal Procedure; or
343	343	(B) subject to a restraining order affecting the
344	344	spousal relationship, other than a restraining order solely
345	345	affecting property interests;
346	346	(13) has not, in the 10 years preceding the date of
347	347	application, been adjudicated as having engaged in delinquent
348	348	conduct violating a penal law of the grade of felony; and
349	349	(14) has not made any material misrepresentation, or
350	350	failed to disclose any material fact, in an application submitted
351	351	pursuant to Section 411.174.
352	352	SECTION 5. Sections 411.187(a) and (c), Government Code,
353	353	are amended to read as follows:
354	354	(a) The department shall suspend a license under this
355	355	section if the license holder:
356	356	(1) is charged with the commission of a Class A or
357	357	Class B misdemeanor or equivalent offense, or of an offense under
358	358	Section 42.01, Penal Code, or equivalent offense, or of a felony
359	359	under an information or indictment;
360	360	(2) fails to notify the department of a change of
361	361	address, name, or status as required by Section 411.181;
362	362	(3) commits an act of family violence and is the
363	363	subject of an active protective order rendered under Title 4,
364	364	Family Code; [or]
365	365	(4) is arrested for an offense involving family
366	366	violence or an offense under Section 42.072, Penal Code, and is the
367	367	subject of an order for emergency protection issued under Article
368	368	17.292, Code of Criminal Procedure; or
369	369	(5) is the subject of an active protective order
370	370	issued under Subchapter D, Chapter 7B, Code of Criminal Procedure.
371	371	(c) The department shall suspend a license under this
372	372	section:
373	373	(1) for 30 days, if the person's license is subject to
374	374	suspension for a reason listed in Subsection (a)(2)[, (3), or (4),
375	375	except as provided by Subdivision (2)];
376	376	(2) [for not less than one year and not more than three
377	377	years, if the person's license:
378	378	[(A) is subject to suspension for a reason listed
379	379	in Subsection (a), other than the reason listed in Subsection
380	380	(a)(1); and
381	381	[(B) has been previously suspended for the same
382	382	reason;
383	383	[(3)] until dismissal of the charges, if the person's
384	384	license is subject to suspension for the reason listed in
385	385	Subsection (a)(1); or
386	386	(3) [(4)] for the duration of or the period specified
387	387	by:
388	388	(A) the protective order issued under Title 4,
389	389	Family Code, if the person's license is subject to suspension for
390	390	the reason listed in Subsection (a)(3) [(a)(5)]; [or]
391	391	(B) the order for emergency protection issued
392	392	under Article 17.292, Code of Criminal Procedure, if the person's
393	393	license is subject to suspension for the reason listed in
394	394	Subsection (a)(4); or
395	395	(C) the extreme risk protective order issued
396	396	under Subchapter D, Chapter 7B, Code of Criminal Procedure, if the
397	397	person's license is subject to suspension for the reason listed in
398	398	Subsection (a)(5) [(a)(6)].
399	399	SECTION 6. Chapter 37, Penal Code, is amended by adding
400	400	Section 37.083 to read as follows:
401	401	Sec. 37.083. FALSE REPORT REGARDING REQUEST FOR EXTREME
402	402	RISK PROTECTIVE ORDER. (a) In this section, "prosecuting
403	403	attorney" means a district attorney, criminal district attorney, or
404	404	county attorney.
405	405	(b) A person commits an offense if, with intent to deceive,
406	406	the person knowingly makes to a prosecuting attorney or peace
407	407	officer a false statement relating to a request that a prosecuting
408	408	attorney file an application for an extreme risk protective order
409	409	under Subchapter D, Chapter 7B, Code of Criminal Procedure.
410	410	(c) An offense under this section is a Class A misdemeanor.
411	411	SECTION 7. Section 46.06(a), Penal Code, is amended to read
412	412	as follows:
413	413	(a) A person commits an offense if the person:
414	414	(1) sells, rents, leases, loans, or gives a handgun to
415	415	any person knowing that the person to whom the handgun is to be
416	416	delivered intends to use it unlawfully or in the commission of an
417	417	unlawful act;
418	418	(2) intentionally or knowingly sells, rents, leases,
419	419	or gives or offers to sell, rent, lease, or give to any child
420	420	younger than 18 years of age any firearm, club, or
421	421	location-restricted knife;
422	422	(3) intentionally, knowingly, or recklessly sells a
423	423	firearm or ammunition for a firearm to any person who is
424	424	intoxicated;
425	425	(4) knowingly sells a firearm or ammunition for a
426	426	firearm to any person who has been convicted of a felony before the
427	427	fifth anniversary of the later of the following dates:
428	428	(A) the person's release from confinement
429	429	following conviction of the felony; or
430	430	(B) the person's release from supervision under
431	431	community supervision, parole, or mandatory supervision following
432	432	conviction of the felony;
433	433	(5) sells, rents, leases, loans, or gives a handgun to
434	434	any person knowing that an active protective order is directed to
435	435	the person to whom the handgun is to be delivered;
436	436	(6) sells, rents, leases, loans, or gives a firearm to
437	437	any person knowing that an active extreme risk protective order
438	438	under Subchapter D, Chapter 7B, Code of Criminal Procedure, is
439	439	directed to the person to whom the firearm is to be delivered; or
440	440	(7) [(6)] knowingly purchases, rents, leases, or
441	441	receives as a loan or gift from another a handgun while an active
442	442	protective order is directed to the actor.
443	443	SECTION 8. Section 46.06, Penal Code, as amended by this
444	444	Act, applies only to an offense committed on or after the effective
445	445	date of this Act. An offense committed before the effective date of
446	446	this Act is governed by the law in effect on the date the offense was
447	447	committed, and the former law is continued in effect for that
448	448	purpose. For purposes of this section, an offense was committed
449	449	before the effective date of this Act if any element of the offense
450	450	occurred before that date.
451	451	SECTION 9. Not later than October 1, 2021, the Department of
452	452	Public Safety shall adopt rules as required by Section 411.0522,
453	453	Government Code, as added by this Act.
454	454	SECTION 10. This Act takes effect September 1, 2021.