Texas 2021 - 87th Regular

Texas Senate Bill SB84 Compare Versions

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

Old	New	Differences
1	1	87R766 TSS-F
2	2	By: Miles S.B. No. 84
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to lethal violence 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. LETHAL VIOLENCE 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 LETHAL VIOLENCE PROTECTIVE
21	21	ORDER. (a) An application for a protective order under this
22	22	subchapter may 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 prosecuting attorney acting:
30	30	(A) on behalf of a person described by
31	31	Subdivision (1) or (2); or
32	32	(B) at the request of a peace officer.
33	33	(b) An application must:
34	34	(1) include:
35	35	(A) detailed allegations, based on personal
36	36	knowledge of a person described by Subsection (a)(1) or (2) or of a
37	37	peace officer, regarding any dangerous behavior or conduct
38	38	exhibited by the respondent, including any behavior or conduct
39	39	related to the respondent's use of firearms;
40	40	(B) information concerning the quantity, type,
41	41	and location of any firearms the applicant believes to be in the
42	42	respondent's possession or control, if any;
43	43	(C) any other relevant facts indicating a need
44	44	for a protective order under this subchapter; and
45	45	(D) a statement that the applicant believes the
46	46	respondent poses an immediate and present danger of causing bodily
47	47	injury, serious bodily injury, or death to any person, including
48	48	the respondent, as a result of the respondent's access to firearms;
49	49	and
50	50	(2) be signed by the applicant under an oath that, to
51	51	the knowledge and belief of the applicant, the facts and
52	52	circumstances contained in the application are true.
53	53	(c) An application for a protective order under this
54	54	subchapter may be filed in a district court, juvenile court having
55	55	the jurisdiction of a district court, statutory county court, or
56	56	constitutional county court in the county in which the applicant or
57	57	the respondent resides.
58	58	Art. 7B.153. CONFIDENTIALITY OF CERTAIN INFORMATION. On
59	59	receiving an application containing specific health information
60	60	concerning the respondent, the court shall order the clerk to:
61	61	(1) strike the information from the public records of
62	62	the court; and
63	63	(2) maintain a confidential record of the information
64	64	for use only by the court.
65	65	Art. 7B.154. TEMPORARY EX PARTE ORDER. (a) If the court
66	66	finds from the information contained in an application for a
67	67	protective order under this subchapter that there is reasonable
68	68	cause to believe that the respondent poses an immediate and present
69	69	danger of causing bodily injury, serious bodily injury, or death to
70	70	any person, including the respondent, as a result of the
71	71	respondent's access to firearms, the court, without further notice
72	72	to the respondent and without a hearing, may issue a temporary ex
73	73	parte order prohibiting the respondent from purchasing, owning,
74	74	possessing, or controlling a firearm.
75	75	(b) In a temporary ex parte order, the court may order the
76	76	respondent to:
77	77	(1) relinquish, without delay, any firearms owned by
78	78	or in the actual or constructive possession or control of the
79	79	respondent to a law enforcement agency for holding in the manner
80	80	provided by Article 18.192; and
81	81	(2) if applicable, surrender to the court the
82	82	respondent's license to carry a handgun issued under Subchapter H,
83	83	Chapter 411, Government Code.
84	84	Art. 7B.155. HEARING; ISSUANCE OF PROTECTIVE ORDER. (a)
85	85	Not later than the 14th day after the later of the date an
86	86	application is filed or the date a temporary ex parte order is
87	87	issued, the court shall hold a hearing on the issuance of the
88	88	protective order.
89	89	(b) The court shall provide personal notice of the hearing
90	90	to the respondent.
91	91	(c) In determining whether to issue a protective order under
92	92	this article, the court:
93	93	(1) shall consider:
94	94	(A) any history of threats or acts of violence by
95	95	the respondent directed at any person, including the respondent;
96	96	(B) any history of the respondent using,
97	97	attempting to use, or threatening to use physical force against
98	98	another person;
99	99	(C) any recent violation by the respondent of an
100	100	order issued:
101	101	(i) under another provision of Chapter 7B
102	102	or under Article 17.292;
103	103	(ii) under Section 6.504 or Chapter 85,
104	104	Family Code;
105	105	(iii) under Chapter 83, Family Code, if the
106	106	temporary ex parte order has been served on the respondent; or
107	107	(iv) by another jurisdiction as provided by
108	108	Chapter 88, Family Code;
109	109	(D) any arrest or conviction of the respondent
110	110	for:
111	111	(i) an offense under Section 42.072, Penal
112	112	Code; or
113	113	(ii) a misdemeanor offense involving
114	114	violence, including family violence;
115	115	(E) any conviction of the respondent for an
116	116	offense under Section 42.09, 42.091, or 42.092, Penal Code; and
117	117	(F) evidence related to the respondent's abuse of
118	118	a controlled substance or alcohol, including evidence of any
119	119	treatment for and recovery from abusing a controlled substance or
120	120	alcohol; and
121	121	(2) may consider any other relevant factor including:
122	122	(A) any previous violation by the respondent of
123	123	an order described by Subdivision (1)(C); and
124	124	(B) evidence regarding the respondent's recent
125	125	acquisition of firearms, ammunition, or other deadly weapons.
126	126	(d) At the close of the hearing, if the court finds by clear
127	127	and convincing evidence that the respondent poses an immediate and
128	128	present danger of causing bodily injury, serious bodily injury, or
129	129	death to any person, including the respondent, as a result of the
130	130	respondent's access to firearms, the court shall issue a protective
131	131	order that includes a statement of the required finding.
132	132	(e) If the court does not make the finding described by
133	133	Subsection (d), the court shall, as applicable, rescind any
134	134	temporary ex parte order issued under Article 7B.154 and return the
135	135	respondent's license to carry a handgun.
136	136	Art. 7B.156. CONTENTS OF PROTECTIVE ORDER. In a protective
137	137	order issued under Article 7B.155, the court shall:
138	138	(1) prohibit the person who is subject to the order
139	139	from purchasing, owning, possessing, or controlling a firearm for
140	140	the duration of the order;
141	141	(2) order the person to:
142	142	(A) relinquish, without delay, any firearms
143	143	owned by or in the actual or constructive possession or control of
144	144	the person to a law enforcement agency for holding in the manner
145	145	provided by Article 18.192; and
146	146	(B) if applicable, surrender to the court the
147	147	person's license to carry a handgun issued under Subchapter H,
148	148	Chapter 411, Government Code; and
149	149	(3) suspend a license to carry a handgun issued under
150	150	Subchapter H, Chapter 411, Government Code, that is held by the
151	151	person.
152	152	Art. 7B.157. DURATION OF PROTECTIVE ORDER. (a) A
153	153	protective order issued under Article 7B.155 is effective until the
154	154	first anniversary of the date the order was issued.
155	155	(b) The court may renew a protective order issued under
156	156	Article 7B.155 for a period not to exceed one year after the order's
157	157	original expiration date. Before renewing the order the court must
158	158	hold a hearing and provide personal notice of the hearing to the
159	159	person who is the subject of the order.
160	160	(c) A person who is the subject of a protective order may
161	161	file a motion not earlier than the 91st day after the date on which
162	162	the order was initially issued or renewed, as applicable,
163	163	requesting that the court review the order and determine whether
164	164	there is a continuing need for the order. After a hearing on the
165	165	motion, if the court fails to make the finding that there is no
166	166	continuing need for the order, the order remains in effect until the
167	167	date the order expires as provided by this article.
168	168	(d) At a hearing to renew or rescind a protective order
169	169	under this article, the court shall consider the factors described
170	170	by Article 7B.155(c).
171	171	Art. 7B.158. NOTICE TO DEPARTMENT OF PUBLIC SAFETY. (a)
172	172	Not later than the 30th day after the date a protective order is
173	173	issued under Article 7B.155, the clerk of the issuing court shall
174	174	provide the following to the Department of Public Safety:
175	175	(1) the complete name, race, and sex of the person who
176	176	is the subject of the order;
177	177	(2) any known identifying number of the person,
178	178	including a social security number, driver's license number, or
179	179	state identification number;
180	180	(3) the person's date of birth;
181	181	(4) if surrendered to the court, the person's license
182	182	to carry a handgun issued under Subchapter H, Chapter 411,
183	183	Government Code; and
184	184	(5) a copy of the order suspending the person's license
185	185	to carry a handgun under Subchapter H, Chapter 411, Government
186	186	Code.
187	187	(b) On receipt of an order suspending a license to carry a
188	188	handgun, the department shall:
189	189	(1) record the suspension of the license in the
190	190	records of the department;
191	191	(2) report the suspension to local law enforcement
192	192	agencies, as appropriate; and
193	193	(3) if the license was not surrendered to the court,
194	194	demand surrender of the suspended license from the license holder.
195	195	(c) Not later than the 30th day after the date the
196	196	protective order expires under Article 7B.157, the clerk of the
197	197	issuing court shall notify the Department of Public Safety of the
198	198	expiration.
199	199	Art. 7B.159. APPLICATION OF OTHER LAW. To the extent
200	200	applicable, except as otherwise provided by this subchapter, Title
201	201	4, Family Code, applies to a protective order issued under this
202	202	subchapter.
203	203	SECTION 2. Chapter 18, Code of Criminal Procedure, is
204	204	amended by adding Article 18.192 to read as follows:
205	205	Art. 18.192. HOLDING AND DISPOSITION OF FIREARM
206	206	RELINQUISHED UNDER LETHAL VIOLENCE PROTECTIVE ORDER. (a) A law
207	207	enforcement officer who takes possession of a firearm from a person
208	208	who is the subject of a lethal violence protective order issued
209	209	under Subchapter D, Chapter 7B shall immediately provide the person
210	210	a written copy of the receipt for the firearm and a written notice
211	211	of the procedure for the return of a firearm under this article.
212	212	(b) Not later than the seventh day after the date a firearm
213	213	subject to disposition under this article is received, the law
214	214	enforcement agency holding the firearm shall notify the court that
215	215	issued the lethal violence protective order that the person who is
216	216	the subject of the order has relinquished the firearm.
217	217	(c) Not later than the 30th day after the date the lethal
218	218	violence protective order is rescinded or expires, the clerk of the
219	219	court shall notify the law enforcement agency of the rescission or
220	220	expiration.
221	221	(d) Not later than the 30th day after the date the law
222	222	enforcement agency holding a firearm subject to disposition under
223	223	this article receives the notice described by Subsection (c), the
224	224	law enforcement agency shall conduct a check of state and national
225	225	criminal history record information to verify whether the person
226	226	may lawfully possess a firearm under 18 U.S.C. Section 922(g) and
227	227	under the law of this state.
228	228	(e) If the check conducted under Subsection (d) verifies
229	229	that the person may lawfully possess a firearm, the law enforcement
230	230	agency shall provide to the person by certified mail written notice
231	231	stating that the firearm may be returned to the person if the person
232	232	submits a written request before the 121st day after the date of the
233	233	notice.
234	234	(f) An unclaimed firearm that is received under a lethal
235	235	violence protective order issued under Subchapter D, Chapter 7B may
236	236	not be destroyed or forfeited to the state.
237	237	(g) The law enforcement agency holding the firearm may
238	238	provide for the firearm to be sold by a person who is a licensed
239	239	firearms dealer under 18 U.S.C. Section 923 if:
240	240	(1) the check conducted under Subsection (d) shows
241	241	that the person may not lawfully possess a firearm; or
242	242	(2) the notice is provided under Subsection (e) and
243	243	the person does not submit, before the 121st day after the date of
244	244	the notice, a written request for the return of the firearm.
245	245	(h) The proceeds from the sale of a firearm under this
246	246	article shall be paid to the owner of the seized firearm, less the
247	247	cost of administering this article with respect to the firearm.
248	248	SECTION 3. Subchapter D, Chapter 411, Government Code, is
249	249	amended by adding Section 411.0522 to read as follows:
250	250	Sec. 411.0522. INFORMATION CONCERNING LETHAL VIOLENCE
251	251	PROTECTIVE ORDER. (a) The department by rule shall establish a
252	252	procedure to provide information concerning a person who is the
253	253	subject of a lethal violence protective order to the Federal Bureau
254	254	of Investigation for inclusion in the National Instant Criminal
255	255	Background Check System.
256	256	(b) The procedure must require the department to provide any
257	257	information received under Article 7B.158, Code of Criminal
258	258	Procedure, to the Federal Bureau of Investigation not later than
259	259	the 30th day after the date the department received the
260	260	information.
261	261	SECTION 4. Section 411.172(a), Government Code, is amended
262	262	to read as follows:
263	263	(a) A person is eligible for a license to carry a handgun if
264	264	the person:
265	265	(1) is a legal resident of this state for the six-month
266	266	period preceding the date of application under this subchapter or
267	267	is otherwise eligible for a license under Section 411.173(a);
268	268	(2) is at least 21 years of age;
269	269	(3) has not been convicted of a felony;
270	270	(4) is not charged with the commission of a Class A or
271	271	Class B misdemeanor or equivalent offense, or of an offense under
272	272	Section 42.01, Penal Code, or equivalent offense, or of a felony
273	273	under an information or indictment;
274	274	(5) is not a fugitive from justice for a felony or a
275	275	Class A or Class B misdemeanor or equivalent offense;
276	276	(6) is not a chemically dependent person;
277	277	(7) is not incapable of exercising sound judgment with
278	278	respect to the proper use and storage of a handgun;
279	279	(8) has not, in the five years preceding the date of
280	280	application, been convicted of a Class A or Class B misdemeanor or
281	281	equivalent offense or of an offense under Section 42.01, Penal
282	282	Code, or equivalent offense;
283	283	(9) is fully qualified under applicable federal and
284	284	state law to purchase a handgun;
285	285	(10) has not been finally determined to be delinquent
286	286	in making a child support payment administered or collected by the
287	287	attorney general;
288	288	(11) has not been finally determined to be delinquent
289	289	in the payment of a tax or other money collected by the comptroller,
290	290	the tax collector of a political subdivision of the state, or any
291	291	agency or subdivision of the state;
292	292	(12) is not currently:
293	293	(A) restricted under a court protective order,
294	294	including a lethal violence protective order issued under
295	295	Subchapter D, Chapter 7B, Code of Criminal Procedure; or
296	296	(B) subject to a restraining order affecting the
297	297	spousal relationship, other than a restraining order solely
298	298	affecting property interests;
299	299	(13) has not, in the 10 years preceding the date of
300	300	application, been adjudicated as having engaged in delinquent
301	301	conduct violating a penal law of the grade of felony; and
302	302	(14) has not made any material misrepresentation, or
303	303	failed to disclose any material fact, in an application submitted
304	304	pursuant to Section 411.174.
305	305	SECTION 5. Sections 411.187(a) and (c), Government Code,
306	306	are amended to read as follows:
307	307	(a) The department shall suspend a license under this
308	308	section if the license holder:
309	309	(1) is charged with the commission of a Class A or
310	310	Class B misdemeanor or equivalent offense, or of an offense under
311	311	Section 42.01, Penal Code, or equivalent offense, or of a felony
312	312	under an information or indictment;
313	313	(2) fails to notify the department of a change of
314	314	address, name, or status as required by Section 411.181;
315	315	(3) commits an act of family violence and is the
316	316	subject of an active protective order rendered under Title 4,
317	317	Family Code; [or]
318	318	(4) is arrested for an offense involving family
319	319	violence or an offense under Section 42.072, Penal Code, and is the
320	320	subject of an order for emergency protection issued under Article
321	321	17.292, Code of Criminal Procedure; or
322	322	(5) is the subject of an active protective order
323	323	issued under Subchapter D, Chapter 7B, Code of Criminal Procedure.
324	324	(c) The department shall suspend a license under this
325	325	section:
326	326	(1) for 30 days, if the person's license is subject to
327	327	suspension for a reason listed in Subsection (a)(2)[, (3), or (4),
328	328	except as provided by Subdivision (2)];
329	329	(2) [for not less than one year and not more than three
330	330	years, if the person's license:
331	331	[(A) is subject to suspension for a reason listed
332	332	in Subsection (a), other than the reason listed in Subsection
333	333	(a)(1); and
334	334	[(B) has been previously suspended for the same
335	335	reason;
336	336	[(3)] until dismissal of the charges, if the person's
337	337	license is subject to suspension for the reason listed in
338	338	Subsection (a)(1); or
339	339	(3) [(4)] for the duration of or the period specified
340	340	by:
341	341	(A) the protective order issued under Title 4,
342	342	Family Code, if the person's license is subject to suspension for
343	343	the reason listed in Subsection (a)(3) [(a)(5)]; [or]
344	344	(B) the order for emergency protection issued
345	345	under Article 17.292, Code of Criminal Procedure, if the person's
346	346	license is subject to suspension for the reason listed in
347	347	Subsection (a)(4); or
348	348	(C) the lethal violence protective order issued
349	349	under Subchapter D, Chapter 7B, Code of Criminal Procedure, if the
350	350	person's license is subject to suspension for the reason listed in
351	351	Subsection (a)(5) [(a)(6)].
352	352	SECTION 6. Chapter 37, Penal Code, is amended by adding
353	353	Section 37.083 to read as follows:
354	354	Sec. 37.083. FALSE REPORT REGARDING REQUEST FOR LETHAL
355	355	VIOLENCE PROTECTIVE ORDER. (a) In this section, "prosecuting
356	356	attorney" means a district attorney, criminal district attorney, or
357	357	county attorney.
358	358	(b) A person commits an offense if, with intent to deceive,
359	359	the person knowingly makes to a prosecuting attorney or peace
360	360	officer a false statement relating to a request that a prosecuting
361	361	attorney file an application for a lethal violence protective order
362	362	under Subchapter D, Chapter 7B, Code of Criminal Procedure.
363	363	(c) An offense under this section is a Class B misdemeanor.
364	364	SECTION 7. Section 46.04, Penal Code, is amended by adding
365	365	Subsection (c-1) and amending Subsection (e) to read as follows:
366	366	(c-1) A person commits an offense if, after receiving notice
367	367	that the person is subject to a lethal violence protective order
368	368	issued under Subchapter D, Chapter 7B, Code of Criminal Procedure,
369	369	and before expiration of the order, the person purchases, owns,
370	370	possesses, or controls a firearm in violation of the order.
371	371	(e) An offense under Subsection (a) is a felony of the third
372	372	degree. An offense under Subsection (b), [or] (c), or (c-1) is a
373	373	Class A misdemeanor.
374	374	SECTION 8. Not later than October 1, 2021, the Department of
375	375	Public Safety shall adopt rules as required by Section 411.0522,
376	376	Government Code, as added by this Act.
377	377	SECTION 9. This Act takes effect September 1, 2021.