Texas 2021 - 87th Regular

Texas Senate Bill SB1742 Compare Versions

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

Old	New	Differences
1	1	87R10322 TSS-D
2	2	By: Whitmire S.B. No. 1742
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	Art. 7B.152. APPLICATION FOR EXTREME RISK PROTECTIVE ORDER.
21	21	(a) An application for a protective order under this subchapter may
22	22	be filed by:
23	23	(1) a member of the respondent's family or household;
24	24	(2) a parent, guardian, or conservator of a person who
25	25	is:
26	26	(A) under 18 years of age; and
27	27	(B) a member of the respondent's family or
28	28	household; or
29	29	(3) a peace officer.
30	30	(b) An application must:
31	31	(1) include:
32	32	(A) detailed allegations, based on personal
33	33	knowledge of a person described by Subsection (a), regarding any
34	34	dangerous behavior or conduct exhibited by the respondent,
35	35	including any behavior or conduct related to the respondent's use
36	36	of firearms;
37	37	(B) information concerning the quantity, type,
38	38	and location of any firearms the applicant believes to be in the
39	39	respondent's possession or control, if any;
40	40	(C) any other relevant facts indicating a need
41	41	for a protective order under this subchapter; and
42	42	(D) a statement that the applicant believes the
43	43	respondent poses an immediate and present danger of causing bodily
44	44	injury, serious bodily injury, or death to any person, including
45	45	the respondent, as a result of the respondent's access to firearms;
46	46	and
47	47	(2) be signed by the applicant under an oath that, to
48	48	the knowledge and belief of the applicant, the facts and
49	49	circumstances contained in the application are true.
50	50	(c) An application for a protective order under this
51	51	subchapter may be filed in a district court, juvenile court having
52	52	the jurisdiction of a district court, statutory county court, or
53	53	constitutional county court in the county in which the applicant or
54	54	the respondent resides.
55	55	Art. 7B.153. CONFIDENTIALITY OF CERTAIN INFORMATION. On
56	56	receiving an application containing specific health information
57	57	concerning the respondent, the court shall order the clerk to:
58	58	(1) strike the information from the public records of
59	59	the court; and
60	60	(2) maintain a confidential record of the information
61	61	for use only by the court.
62	62	Art. 7B.154. TEMPORARY EX PARTE ORDER. (a) If the court
63	63	finds from the information contained in an application for a
64	64	protective order under this subchapter that there is reasonable
65	65	cause to believe that the respondent poses an immediate and present
66	66	danger of causing bodily injury, serious bodily injury, or death to
67	67	any person, including the respondent, as a result of the
68	68	respondent's access to firearms, the court, without further notice
69	69	to the respondent and without a hearing, may issue a temporary ex
70	70	parte order prohibiting the respondent from purchasing, owning,
71	71	possessing, or controlling a firearm.
72	72	(b) In a temporary ex parte order, the court may order the
73	73	respondent to:
74	74	(1) not later than 24 hours after the time the order is
75	75	issued, relinquish any firearms owned by or in the actual or
76	76	constructive possession or control of the respondent to a law
77	77	enforcement agency for holding in the manner provided by Article
78	78	18.192; and
79	79	(2) if applicable, surrender to the court the
80	80	respondent's license to carry a handgun issued under Subchapter H,
81	81	Chapter 411, Government Code.
82	82	Art. 7B.155. HEARING; ISSUANCE OF PROTECTIVE ORDER. (a)
83	83	Not later than the 14th day after the later of the date an
84	84	application is filed or the date a temporary ex parte order is
85	85	issued, the court shall hold a hearing on the issuance of the
86	86	protective order.
87	87	(b) The court shall provide personal notice of the hearing
88	88	to the respondent.
89	89	(c) In determining whether to issue a protective order under
90	90	this article, the court:
91	91	(1) shall consider:
92	92	(A) any history of threats or acts of violence by
93	93	the respondent directed at any person, including the respondent;
94	94	(B) any history of the respondent using,
95	95	attempting to use, or threatening to use physical force against
96	96	another person;
97	97	(C) any recent violation by the respondent of an
98	98	order issued:
99	99	(i) under another provision of Chapter 7B
100	100	or under Article 17.292;
101	101	(ii) under Section 6.504 or Chapter 85,
102	102	Family Code;
103	103	(iii) under Chapter 83, Family Code, if the
104	104	temporary ex parte order has been served on the respondent; or
105	105	(iv) by another jurisdiction as provided by
106	106	Chapter 88, Family Code;
107	107	(D) any arrest or conviction of the respondent
108	108	for:
109	109	(i) an offense under Section 42.072, Penal
110	110	Code; or
111	111	(ii) a misdemeanor offense involving
112	112	violence, including family violence;
113	113	(E) any conviction of the respondent for an
114	114	offense under Section 42.09, 42.091, or 42.092, Penal Code; and
115	115	(F) evidence related to the respondent's current
116	116	or recent abuse of a controlled substance or alcohol, not including
117	117	any evidence of previous treatment for or recovery from abusing a
118	118	controlled substance or alcohol; and
119	119	(2) may consider any other relevant factor including:
120	120	(A) any previous violation by the respondent of
121	121	an order described by Subdivision (1)(C); and
122	122	(B) evidence regarding the respondent's recent
123	123	acquisition of firearms, ammunition, or other deadly weapons.
124	124	(d) At the close of the hearing, if the court finds by clear
125	125	and convincing evidence that the respondent poses an immediate and
126	126	present danger of causing bodily injury, serious bodily injury, or
127	127	death to any person, including the respondent, as a result of the
128	128	respondent's access to firearms, the court shall issue a protective
129	129	order that includes a statement of the required finding.
130	130	(e) If the court does not make the finding described by
131	131	Subsection (d), the court shall, as applicable, rescind any
132	132	temporary ex parte order issued under Article 7B.154 and return the
133	133	respondent's license to carry a handgun.
134	134	Art. 7B.156. CONTENTS OF PROTECTIVE ORDER. In a protective
135	135	order issued under Article 7B.155, the court shall:
136	136	(1) prohibit the person who is subject to the order
137	137	from purchasing, owning, possessing, or controlling a firearm for
138	138	the duration of the order;
139	139	(2) order the person to:
140	140	(A) not later than 24 hours after the time the
141	141	order is issued, relinquish any firearms owned by or in the actual
142	142	or constructive possession or control of the person to a law
143	143	enforcement agency for holding in the manner provided by Article
144	144	18.192; and
145	145	(B) if applicable, surrender to the court the
146	146	person's license to carry a handgun issued under Subchapter H,
147	147	Chapter 411, Government Code; and
148	148	(3) suspend a license to carry a handgun issued under
149	149	Subchapter H, Chapter 411, Government Code, that is held by the
150	150	person.
151	151	Art. 7B.157. DURATION OF PROTECTIVE ORDER. (a) A
152	152	protective order issued under Article 7B.155 is effective until the
153	153	first anniversary of the date the order was issued.
154	154	(b) The court may renew a protective order issued under
155	155	Article 7B.155 for a period not to exceed one year after the order's
156	156	original expiration date. Before renewing the order the court must
157	157	hold a hearing and provide personal notice of the hearing to the
158	158	person who is the subject of the order.
159	159	(c) A person who is the subject of a protective order may
160	160	file a motion not earlier than the 91st day after the date on which
161	161	the order was initially issued or renewed, as applicable,
162	162	requesting that the court review the order and determine whether
163	163	there is a continuing need for the order. After a hearing on the
164	164	motion, if the court fails to make the finding that there is no
165	165	continuing need for the order, the order remains in effect until the
166	166	date the order expires as provided by this article.
167	167	(d) At a hearing to renew or rescind a protective order
168	168	under this article, the court shall consider the factors described
169	169	by Article 7B.155(c).
170	170	Art. 7B.158. NOTICE TO DEPARTMENT OF PUBLIC SAFETY. (a)
171	171	Not later than 24 hours after the time a protective order is issued
172	172	under Article 7B.155, the clerk of the issuing court shall provide
173	173	the following to the Department of Public Safety:
174	174	(1) the complete name, race, and sex of the person who
175	175	is the subject of the order;
176	176	(2) any known identifying number of the person,
177	177	including a social security number, driver's license number, or
178	178	state identification number;
179	179	(3) the person's date of birth;
180	180	(4) if surrendered to the court, the person's license
181	181	to carry a handgun issued under Subchapter H, Chapter 411,
182	182	Government Code; and
183	183	(5) a copy of the order suspending the person's license
184	184	to carry a handgun under Subchapter H, Chapter 411, Government
185	185	Code.
186	186	(b) On receipt of an order suspending a license to carry a
187	187	handgun, the department shall:
188	188	(1) record the suspension of the license in the
189	189	records of the department;
190	190	(2) report the suspension to local law enforcement
191	191	agencies, as appropriate; and
192	192	(3) if the license was not surrendered to the court,
193	193	demand surrender of the suspended license from the license holder.
194	194	(c) Not later than the 30th day after the date the
195	195	protective order expires under Article 7B.157, the clerk of the
196	196	issuing court shall notify the Department of Public Safety of the
197	197	expiration.
198	198	Art. 7B.159. APPLICATION OF OTHER LAW. To the extent
199	199	applicable, except as otherwise provided by this subchapter, Title
200	200	4, Family Code, applies to a protective order issued under this
201	201	subchapter.
202	202	SECTION 2. Chapter 18, Code of Criminal Procedure, is
203	203	amended by adding Article 18.192 to read as follows:
204	204	Art. 18.192. HOLDING AND DISPOSITION OF FIREARM
205	205	RELINQUISHED UNDER EXTREME RISK PROTECTIVE ORDER. (a) A law
206	206	enforcement officer who takes possession of a firearm from a person
207	207	who is the subject of an extreme risk protective order issued under
208	208	Subchapter D, Chapter 7B, shall immediately provide the person a
209	209	written copy of the receipt for the firearm and a written notice of
210	210	the procedure for the return of a firearm under this article.
211	211	(b) Not later than the seventh day after the date a firearm
212	212	subject to disposition under this article is received, the law
213	213	enforcement agency holding the firearm shall notify the court that
214	214	issued the extreme risk protective order that the person who is the
215	215	subject of the order has relinquished the firearm.
216	216	(c) Not later than the 30th day after the date the extreme
217	217	risk protective order is rescinded or expires, the clerk of the
218	218	court shall notify the law enforcement agency of the rescission or
219	219	expiration.
220	220	(d) Not later than the 30th day after the date the law
221	221	enforcement agency holding a firearm subject to disposition under
222	222	this article receives the notice described by Subsection (c), the
223	223	law enforcement agency shall conduct a check of state and national
224	224	criminal history record information to verify whether the person
225	225	may lawfully possess a firearm under 18 U.S.C. Section 922(g) and
226	226	under the law of this state.
227	227	(e) If the check conducted under Subsection (d) verifies
228	228	that the person may lawfully possess a firearm, the law enforcement
229	229	agency shall provide to the person by certified mail written notice
230	230	stating that the firearm may be returned to the person if the person
231	231	submits a written request before the 121st day after the date of the
232	232	notice.
233	233	(f) An unclaimed firearm that is received under an extreme
234	234	risk protective order issued under Subchapter D, Chapter 7B, may
235	235	not be destroyed or forfeited to the state.
236	236	(g) The law enforcement agency holding the firearm may
237	237	provide for the firearm to be sold by a person who is a licensed
238	238	firearms dealer under 18 U.S.C. Section 923 if:
239	239	(1) the check conducted under Subsection (d) shows
240	240	that the person may not lawfully possess a firearm; or
241	241	(2) the notice is provided under Subsection (e) and
242	242	the person does not submit, before the 121st day after the date of
243	243	the notice, a written request for the return of the firearm.
244	244	(h) The proceeds from the sale of a firearm under this
245	245	article shall be paid to the owner of the seized firearm, less the
246	246	cost of administering this article with respect to the firearm.
247	247	SECTION 3. Subchapter D, Chapter 411, Government Code, is
248	248	amended by adding Section 411.0522 to read as follows:
249	249	Sec. 411.0522. INFORMATION CONCERNING EXTREME RISK
250	250	PROTECTIVE ORDER. (a) The department by rule shall establish a
251	251	procedure to provide information concerning a person who is the
252	252	subject of an extreme risk protective order to the Federal Bureau of
253	253	Investigation for inclusion in the National Instant Criminal
254	254	Background Check System.
255	255	(b) The procedure must require the department to provide any
256	256	information received under Article 7B.158, Code of Criminal
257	257	Procedure, to the Federal Bureau of Investigation not later than 24
258	258	hours after the time the department received the information.
259	259	SECTION 4. Section 411.172(a), Government Code, is amended
260	260	to read as follows:
261	261	(a) A person is eligible for a license to carry a handgun if
262	262	the person:
263	263	(1) is a legal resident of this state for the six-month
264	264	period preceding the date of application under this subchapter or
265	265	is otherwise eligible for a license under Section 411.173(a);
266	266	(2) is at least 21 years of age;
267	267	(3) has not been convicted of a felony;
268	268	(4) is not charged with the commission of a Class A or
269	269	Class B misdemeanor or equivalent offense, or of an offense under
270	270	Section 42.01, Penal Code, or equivalent offense, or of a felony
271	271	under an information or indictment;
272	272	(5) is not a fugitive from justice for a felony or a
273	273	Class A or Class B misdemeanor or equivalent offense;
274	274	(6) is not a chemically dependent person;
275	275	(7) is not incapable of exercising sound judgment with
276	276	respect to the proper use and storage of a handgun;
277	277	(8) has not, in the five years preceding the date of
278	278	application, been convicted of a Class A or Class B misdemeanor or
279	279	equivalent offense or of an offense under Section 42.01, Penal
280	280	Code, or equivalent offense;
281	281	(9) is fully qualified under applicable federal and
282	282	state law to purchase a handgun;
283	283	(10) has not been finally determined to be delinquent
284	284	in making a child support payment administered or collected by the
285	285	attorney general;
286	286	(11) has not been finally determined to be delinquent
287	287	in the payment of a tax or other money collected by the comptroller,
288	288	the tax collector of a political subdivision of the state, or any
289	289	agency or subdivision of the state;
290	290	(12) is not currently:
291	291	(A) restricted under a court protective order,
292	292	including an extreme risk protective order issued under Subchapter
293	293	D, Chapter 7B, Code of Criminal Procedure; or
294	294	(B) subject to a restraining order affecting the
295	295	spousal relationship, other than a restraining order solely
296	296	affecting property interests;
297	297	(13) has not, in the 10 years preceding the date of
298	298	application, been adjudicated as having engaged in delinquent
299	299	conduct violating a penal law of the grade of felony; and
300	300	(14) has not made any material misrepresentation, or
301	301	failed to disclose any material fact, in an application submitted
302	302	pursuant to Section 411.174.
303	303	SECTION 5. Sections 411.187(a) and (c), Government Code,
304	304	are amended to read as follows:
305	305	(a) The department shall suspend a license under this
306	306	section if the license holder:
307	307	(1) is charged with the commission of a Class A or
308	308	Class B misdemeanor or equivalent offense, or of an offense under
309	309	Section 42.01, Penal Code, or equivalent offense, or of a felony
310	310	under an information or indictment;
311	311	(2) fails to notify the department of a change of
312	312	address, name, or status as required by Section 411.181;
313	313	(3) commits an act of family violence and is the
314	314	subject of an active protective order rendered under Title 4,
315	315	Family Code; [or]
316	316	(4) is arrested for an offense involving family
317	317	violence or an offense under Section 42.072, Penal Code, and is the
318	318	subject of an order for emergency protection issued under Article
319	319	17.292, Code of Criminal Procedure; or
320	320	(5) is the subject of an active protective order
321	321	issued under Subchapter D, Chapter 7B, Code of Criminal Procedure.
322	322	(c) The department shall suspend a license under this
323	323	section:
324	324	(1) for 30 days, if the person's license is subject to
325	325	suspension for a reason listed in Subsection (a)(2)[, (3), or (4),
326	326	except as provided by Subdivision (2)];
327	327	(2) [for not less than one year and not more than three
328	328	years, if the person's license:
329	329	[(A) is subject to suspension for a reason listed
330	330	in Subsection (a), other than the reason listed in Subsection
331	331	(a)(1); and
332	332	[(B) has been previously suspended for the same
333	333	reason;
334	334	[(3)] until dismissal of the charges, if the person's
335	335	license is subject to suspension for the reason listed in
336	336	Subsection (a)(1); or
337	337	(3) [(4)] for the duration of or the period specified
338	338	by:
339	339	(A) the protective order issued under Title 4,
340	340	Family Code, if the person's license is subject to suspension for
341	341	the reason listed in Subsection (a)(3) [(a)(5)]; [or]
342	342	(B) the order for emergency protection issued
343	343	under Article 17.292, Code of Criminal Procedure, if the person's
344	344	license is subject to suspension for the reason listed in
345	345	Subsection (a)(4); or
346	346	(C) the extreme risk protective order issued
347	347	under Subchapter D, Chapter 7B, Code of Criminal Procedure, if the
348	348	person's license is subject to suspension for the reason listed in
349	349	Subsection (a)(5) [(a)(6)].
350	350	SECTION 6. Chapter 37, Penal Code, is amended by adding
351	351	Section 37.083 to read as follows:
352	352	Sec. 37.083. FALSE REPORT REGARDING REQUEST FOR EXTREME
353	353	RISK PROTECTIVE ORDER. (a) A person commits an offense if, with
354	354	intent to deceive, the person makes a statement that the person
355	355	knows to be false to a peace officer relating to a request that the
356	356	officer file an application for an extreme risk protective order
357	357	under Subchapter D, Chapter 7B, Code of Criminal Procedure.
358	358	(b) An offense under this section is a Class B misdemeanor.
359	359	(c) If conduct that constitutes an offense under this
360	360	section also constitutes an offense under another law, the actor
361	361	may be prosecuted under this section, the other law, or both.
362	362	SECTION 7. Section 46.04, Penal Code, is amended by adding
363	363	Subsection (c-1) and amending Subsection (e) to read as follows:
364	364	(c-1) A person commits an offense if, after receiving notice
365	365	that the person is subject to an extreme risk protective order
366	366	issued under Subchapter D, Chapter 7B, Code of Criminal Procedure,
367	367	and before expiration of the order, the person purchases, owns,
368	368	possesses, or controls a firearm in violation of the order.
369	369	(e) An offense under Subsection (a) is a felony of the third
370	370	degree. An offense under Subsection (b), [or] (c), or (c-1) is a
371	371	Class A misdemeanor.
372	372	SECTION 8. Not later than October 1, 2021, the Department of
373	373	Public Safety shall adopt rules as required by Section 411.0522,
374	374	Government Code, as added by this Act.
375	375	SECTION 9. This Act takes effect September 1, 2021.