Texas 2021 - 87th 2nd C.S.

Texas House Bill HB55 Compare Versions

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

Old	New	Differences
1	1	By: Reynolds H.B. No. 55
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to creating a criminal offense for the unlawful possession
7	7	or transfer of an assault weapon.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Chapter 46, Penal Code, is amended by adding
10	10	Section 46.055 to read as follows:
11	11	Sec. 46.055. UNLAWFUL POSSESSION OR TRANSFER OF ASSAULT
12	12	WEAPON. (a) In this section, "assault weapon" means:
13	13	(1) a semiautomatic centerfire rifle that has the
14	14	capacity to accept a detachable magazine that has:
15	15	(A) a pistol grip that protrudes conspicuously
16	16	beneath the action of the firearm;
17	17	(B) a folding or telescoping stock;
18	18	(C) a thumbhole stock;
19	19	(D) a second handgrip or a protruding grip that
20	20	can be held by the non-trigger hand;
21	21	(E) a flash suppressor; or
22	22	(F) a grenade launcher or flare launcher;
23	23	(2) a semiautomatic centerfire rifle that has a fixed
24	24	magazine that holds more than 10 rounds of ammunition;
25	25	(3) a semiautomatic centerfire rifle that has an
26	26	overall length of less than 30 inches;
27	27	(4) a semiautomatic shotgun that has the capacity to
28	28	accept a detachable magazine;
29	29	(5) a semiautomatic shotgun that has a folding or
30	30	telescoping stock and has:
31	31	(A) a thumbhole stock; or
32	32	(B) a second handgrip or a protruding grip that
33	33	can be held by the non-trigger hand;
34	34	(6) a semiautomatic pistol that has the capacity to
35	35	accept a detachable magazine and has:
36	36	(A) a second handgrip or a protruding grip that
37	37	can be held by the non-trigger hand;
38	38	(B) an ammunition magazine that attaches to the
39	39	pistol outside of the pistol grip;
40	40	(C) a threaded barrel capable of accepting a
41	41	flash suppressor, forward handgrip, or silencer; or
42	42	(D) a shroud that is attached to or partially or
43	43	completely encircles the barrel and that permits the shooter to
44	44	hold the firearm with the non-trigger hand without being burned;
45	45	(7) a semiautomatic pistol that has a fixed magazine
46	46	that holds more than 10 rounds of ammunition;
47	47	(8) a revolving cylinder shotgun; or
48	48	(9) a conversion kit, part, or combination of parts
49	49	from which an assault weapon can be assembled or with which a
50	50	firearm may be converted into a weapon described by Subdivision
51	51	(1), (2), (3), (4), (5), (6), (7), or (8).
52	52	(b) For purposes of this section, "assault weapon" does not
53	53	include any rifle, shotgun, or pistol that has been rendered
54	54	permanently inoperable.
55	55	(c) A person commits an offense if the person knowingly:
56	56	(1) possesses an assault weapon; or
57	57	(2) sells, offers to sell, or otherwise transfers an
58	58	assault weapon.
59	59	(d) An offense under this section is a Class A misdemeanor.
60	60	(e) It is a defense to prosecution under this section that
61	61	the actor engaged in the conduct while engaged in the actual
62	62	discharge of official duties, or directly en route to or from the
63	63	person's place of assignment, as:
64	64	(1) a peace officer; or
65	65	(2) a member of the armed forces or state military
66	66	forces as defined by Section 431.001, Government Code.
67	67	(f) It is a defense to prosecution under Subsection (c)(1)
68	68	that the actor lawfully possessed the assault weapon on November
69	69	30, 2021.
70	70	(g) If conduct that constitutes an offense under this
71	71	section also constitutes an offense under any other law, the actor
72	72	may be prosecuted under this section, the other law, or both.
73	73	SECTION 2. Section 5.141(a), Alcoholic Beverage Code, is
74	74	amended to read as follows:
75	75	(a) A commissioned inspector or representative of the
76	76	commission may purchase for an amount set by the commission, not to
77	77	exceed fair market value, a firearm issued to the inspector or
78	78	representative by the commission if:
79	79	(1) the firearm is not:
80	80	(A) listed as a prohibited weapon under Section
81	81	46.05, Penal Code; or
82	82	(B) an assault weapon as defined by Section
83	83	46.055, Penal Code;[,] and
84	84	(2) [if] the firearm is retired by the commission for
85	85	replacement purposes.
86	86	SECTION 3. Article 15.27(h), Code of Criminal Procedure, is
87	87	amended to read as follows:
88	88	(h) This article applies to any felony offense and the
89	89	following misdemeanors:
90	90	(1) an offense under Section 20.02, 21.08, 22.01,
91	91	22.05, 22.07, or 71.02, Penal Code;
92	92	(2) the unlawful use, sale, or possession of a
93	93	controlled substance, drug paraphernalia, or marihuana, as defined
94	94	by Chapter 481, Health and Safety Code; or
95	95	(3) the unlawful possession of any of the weapons or
96	96	devices listed in Sections 46.01(1)-(14) or Section 46.01(16)
97	97	[(16)], Penal Code, [or] a weapon listed as a prohibited weapon
98	98	under Section 46.05, Penal Code, or an assault weapon as defined by
99	99	Section 46.055, Penal Code.
100	100	SECTION 4. The heading to Article 18.18, Code of Criminal
101	101	Procedure, is amended to read as follows:
102	102	Art. 18.18. DISPOSITION OF GAMBLING PARAPHERNALIA,
103	103	PROHIBITED WEAPON, ASSAULT WEAPON, CRIMINAL INSTRUMENT, AND OTHER
104	104	CONTRABAND.
105	105	SECTION 5. Articles 18.18(a), (b), (e), (f), and (g), Code
106	106	of Criminal Procedure, are amended to read as follows:
107	107	(a) Following the final conviction of a person for
108	108	possession of a gambling device or equipment, altered gambling
109	109	equipment, or gambling paraphernalia, for an offense involving a
110	110	criminal instrument, for an offense involving an obscene device or
111	111	material, for an offense involving child pornography, or for an
112	112	offense involving a scanning device or re-encoder, the court
113	113	entering the judgment of conviction shall order that the machine,
114	114	device, gambling equipment or gambling paraphernalia, instrument,
115	115	obscene device or material, child pornography, or scanning device
116	116	or re-encoder be destroyed or forfeited to the state. Not later than
117	117	the 30th day after the final conviction of a person for an offense
118	118	involving a prohibited weapon or an assault weapon, the court
119	119	entering the judgment of conviction on its own motion, on the motion
120	120	of the prosecuting attorney in the case, or on the motion of the law
121	121	enforcement agency initiating the complaint on notice to the
122	122	prosecuting attorney in the case if the prosecutor fails to move for
123	123	the order shall order that the prohibited weapon or assault weapon
124	124	be destroyed or forfeited to the law enforcement agency that
125	125	initiated the complaint. If the court fails to enter the order
126	126	within the time required by this subsection, any magistrate in the
127	127	county in which the offense occurred may enter the order. Following
128	128	the final conviction of a person for an offense involving dog
129	129	fighting, the court entering the judgment of conviction shall order
130	130	that any dog-fighting equipment be destroyed or forfeited to the
131	131	state. Destruction of dogs, if necessary, must be carried out by a
132	132	veterinarian licensed in this state or, if one is not available, by
133	133	trained personnel of a humane society or an animal shelter. If
134	134	forfeited, the court shall order the contraband delivered to the
135	135	state, any political subdivision of the state, or to any state
136	136	institution or agency. If gambling proceeds were seized, the court
137	137	shall order them forfeited to the state and shall transmit them to
138	138	the grand jury of the county in which they were seized for use in
139	139	investigating alleged violations of the Penal Code, or to the
140	140	state, any political subdivision of the state, or to any state
141	141	institution or agency.
142	142	(b) If there is no prosecution or conviction following
143	143	seizure, the magistrate to whom the return was made shall notify in
144	144	writing the person found in possession of the alleged gambling
145	145	device or equipment, altered gambling equipment or gambling
146	146	paraphernalia, gambling proceeds, prohibited weapon, assault
147	147	weapon, obscene device or material, child pornography, scanning
148	148	device or re-encoder, criminal instrument, or dog-fighting
149	149	equipment to show cause why the property seized should not be
150	150	destroyed or the proceeds forfeited. The magistrate, on the motion
151	151	of the law enforcement agency seizing a prohibited weapon or an
152	152	assault weapon, shall order the weapon destroyed or forfeited to
153	153	the law enforcement agency seizing the weapon, unless a person
154	154	shows cause as to why the prohibited weapon or assault weapon should
155	155	not be destroyed or forfeited. A law enforcement agency shall make a
156	156	motion under this section in a timely manner after the time at which
157	157	the agency is informed in writing by the attorney representing the
158	158	state that no prosecution will arise from the seizure.
159	159	(e) Any person interested in the alleged gambling device or
160	160	equipment, altered gambling equipment or gambling paraphernalia,
161	161	gambling proceeds, prohibited weapon, assault weapon, obscene
162	162	device or material, child pornography, scanning device or
163	163	re-encoder, criminal instrument, or dog-fighting equipment seized
164	164	must appear before the magistrate on the 20th day following the date
165	165	the notice was mailed or posted. Failure to timely appear forfeits
166	166	any interest the person may have in the property or proceeds seized,
167	167	and no person after failing to timely appear may contest
168	168	destruction or forfeiture.
169	169	(f) If a person timely appears to show cause why the
170	170	property or proceeds should not be destroyed or forfeited, the
171	171	magistrate shall conduct a hearing on the issue and determine the
172	172	nature of property or proceeds and the person's interest therein.
173	173	Unless the person proves by a preponderance of the evidence that the
174	174	property or proceeds is not gambling equipment, altered gambling
175	175	equipment, gambling paraphernalia, gambling device, gambling
176	176	proceeds, prohibited weapon, assault weapon, obscene device or
177	177	material, child pornography, criminal instrument, scanning device
178	178	or re-encoder, or dog-fighting equipment and that he is entitled to
179	179	possession, the magistrate shall dispose of the property or
180	180	proceeds in accordance with Paragraph (a) of this article.
181	181	(g) For purposes of this article:
182	182	(1) "criminal instrument" has the meaning defined in
183	183	the Penal Code;
184	184	(2) "gambling device or equipment, altered gambling
185	185	equipment or gambling paraphernalia" has the meaning defined in the
186	186	Penal Code;
187	187	(3) "prohibited weapon" has the meaning defined in the
188	188	Penal Code;
189	189	(4) "dog-fighting equipment" means:
190	190	(A) equipment used for training or handling a
191	191	fighting dog, including a harness, treadmill, cage, decoy, pen,
192	192	house for keeping a fighting dog, feeding apparatus, or training
193	193	pen;
194	194	(B) equipment used for transporting a fighting
195	195	dog, including any automobile, or other vehicle, and its
196	196	appurtenances which are intended to be used as a vehicle for
197	197	transporting a fighting dog;
198	198	(C) equipment used to promote or advertise an
199	199	exhibition of dog fighting, including a printing press or similar
200	200	equipment, paper, ink, or photography equipment; or
201	201	(D) a dog trained, being trained, or intended to
202	202	be used to fight with another dog;
203	203	(5) "obscene device" and "obscene" have the meanings
204	204	assigned by Section 43.21, Penal Code;
205	205	(6) "re-encoder" has the meaning assigned by Section
206	206	522.001, Business & Commerce Code;
207	207	(7) "scanning device" has the meaning assigned by
208	208	Section 522.001, Business & Commerce Code; [and]
209	209	(8) "obscene material" and "child pornography"
210	210	include digital images and the media and equipment on which those
211	211	images are stored; and
212	212	(9) "assault weapon" has the meaning assigned by
213	213	Section 46.055, Penal Code.
214	214	SECTION 6. Articles 18.19(a) and (d), Code of Criminal
215	215	Procedure, are amended to read as follows:
216	216	(a) Weapons seized in connection with an offense involving
217	217	the use of a weapon or an offense under Penal Code Chapter 46 shall
218	218	be held by the law enforcement agency making the seizure, subject to
219	219	the following provisions, unless:
220	220	(1) the weapon is a prohibited weapon identified in
221	221	Penal Code Chapter 46, or an assault weapon as defined by Section
222	222	46.055, Penal Code, in which event Article 18.18 of this code
223	223	applies; or
224	224	(2) the weapon is alleged to be stolen property, in
225	225	which event Chapter 47 of this code applies.
226	226	(d) A person either convicted or receiving deferred
227	227	adjudication under Chapter 46, Penal Code, is entitled to the
228	228	weapon seized upon request to the court in which the person was
229	229	convicted or placed on deferred adjudication. However, the court
230	230	entering the judgment shall order the weapon destroyed, sold at
231	231	public sale by the law enforcement agency holding the weapon or by
232	232	an auctioneer licensed under Chapter 1802, Occupations Code, or
233	233	forfeited to the state for use by the law enforcement agency holding
234	234	the weapon or by a county forensic laboratory designated by the
235	235	court if:
236	236	(1) the person does not request the weapon before the
237	237	61st day after the date of the judgment of conviction or the order
238	238	placing the person on deferred adjudication;
239	239	(2) the person has been previously convicted under
240	240	Chapter 46, Penal Code;
241	241	(3) the weapon is one defined as a prohibited weapon or
242	242	an assault weapon under Chapter 46, Penal Code;
243	243	(4) the offense for which the person is convicted or
244	244	receives deferred adjudication was committed in or on the premises
245	245	of a playground, school, video arcade facility, or youth center, as
246	246	those terms are defined by Section 481.134, Health and Safety Code;
247	247	or
248	248	(5) the court determines based on the prior criminal
249	249	history of the defendant or based on the circumstances surrounding
250	250	the commission of the offense that possession of the seized weapon
251	251	would pose a threat to the community or one or more individuals.
252	252	SECTION 7. Section 37.005(c), Education Code, is amended to
253	253	read as follows:
254	254	(c) A student who is enrolled in a grade level below grade
255	255	three may not be placed in out-of-school suspension unless while on
256	256	school property or while attending a school-sponsored or
257	257	school-related activity on or off of school property, the student
258	258	engages in:
259	259	(1) conduct that contains the elements of an offense
260	260	related to weapons under Section 46.02, [or] 46.05, or 46.055,
261	261	Penal Code;
262	262	(2) conduct that contains the elements of a violent
263	263	offense under Section 22.01, 22.011, 22.02, or 22.021, Penal Code;
264	264	or
265	265	(3) selling, giving, or delivering to another person
266	266	or possessing, using, or being under the influence of any amount of:
267	267	(A) marihuana or a controlled substance, as
268	268	defined by Chapter 481, Health and Safety Code, or by 21 U.S.C.
269	269	Section 801 et seq.;
270	270	(B) a dangerous drug, as defined by Chapter 483,
271	271	Health and Safety Code; or
272	272	(C) an alcoholic beverage, as defined by Section
273	273	1.04, Alcoholic Beverage Code.
274	274	SECTION 8. Section 37.007(a), Education Code, as effective
275	275	September 1, 2021, is amended to read as follows:
276	276	(a) Except as provided by Subsection (k), a student shall be
277	277	expelled from a school if the student, on school property or while
278	278	attending a school-sponsored or school-related activity on or off
279	279	of school property:
280	280	(1) engages in conduct that contains the elements of
281	281	the offense of unlawfully carrying weapons under Section 46.02,
282	282	Penal Code, [or] elements of an offense relating to prohibited
283	283	weapons under Section 46.05, Penal Code, or elements of an offense
284	284	relating to assault weapons under Section 46.055, Penal Code;
285	285	(2) engages in conduct that contains the elements of
286	286	the offense of:
287	287	(A) aggravated assault under Section 22.02,
288	288	Penal Code, sexual assault under Section 22.011, Penal Code, or
289	289	aggravated sexual assault under Section 22.021, Penal Code;
290	290	(B) arson under Section 28.02, Penal Code;
291	291	(C) murder under Section 19.02, Penal Code,
292	292	capital murder under Section 19.03, Penal Code, or criminal
293	293	attempt, under Section 15.01, Penal Code, to commit murder or
294	294	capital murder;
295	295	(D) indecency with a child under Section 21.11,
296	296	Penal Code;
297	297	(E) aggravated kidnapping under Section 20.04,
298	298	Penal Code;
299	299	(F) aggravated robbery under Section 29.03,
300	300	Penal Code;
301	301	(G) manslaughter under Section 19.04, Penal
302	302	Code;
303	303	(H) criminally negligent homicide under Section
304	304	19.05, Penal Code; or
305	305	(I) continuous sexual abuse of young child or
306	306	disabled individual under Section 21.02, Penal Code; or
307	307	(3) engages in conduct specified by Section
308	308	37.006(a)(2)(C) or (D), if the conduct is punishable as a felony.
309	309	SECTION 9. Section 411.020(a), Government Code, is amended
310	310	to read as follows:
311	311	(a) A commissioned officer of the department may purchase
312	312	for an amount set by the department, not to exceed fair market
313	313	value, a firearm issued to the officer by the department if:
314	314	(1) the firearm is not:
315	315	(A) listed as a prohibited weapon under Section
316	316	46.05, Penal Code; or
317	317	(B) an assault weapon as defined by Section
318	318	46.055, Penal Code;[,] and
319	319	(2) [if] the firearm is retired by the department for
320	320	replacement purposes.
321	321	SECTION 10. Section 614.051(a), Government Code, is amended
322	322	to read as follows:
323	323	(a) An individual may purchase a firearm from a governmental
324	324	entity if:
325	325	(1) the individual was a peace officer commissioned by
326	326	the entity;
327	327	(2) the individual was honorably retired from the
328	328	individual's commission by the entity;
329	329	(3) the firearm had been previously issued to the
330	330	individual by the entity; and
331	331	(4) the firearm is not a prohibited weapon under
332	332	Section 46.05, Penal Code, or an assault weapon as defined by
333	333	Section 46.055, Penal Code.
334	334	SECTION 11. Section 614.052(a), Government Code, is amended
335	335	to read as follows:
336	336	(a) An individual listed under Subsection (b) may purchase a
337	337	firearm from a governmental entity if:
338	338	(1) the firearm had been previously issued by the
339	339	entity to a peace officer commissioned by the entity who died while
340	340	commissioned, without regard to whether the officer died while
341	341	discharging the officer's official duties; and
342	342	(2) the firearm is not a prohibited weapon under
343	343	Section 46.05, Penal Code, or an assault weapon as defined by
344	344	Section 46.055, Penal Code.
345	345	SECTION 12. Section 11.0193(a), Parks and Wildlife Code, is
346	346	amended to read as follows:
347	347	(a) An employee commissioned by the director as a peace
348	348	officer may purchase for an amount set by the department, not to
349	349	exceed fair market value, a firearm issued to the person by the
350	350	department if:
351	351	(1) the firearm is not:
352	352	(A) listed as a prohibited weapon under Section
353	353	46.05, Penal Code; or
354	354	(B) an assault weapon as defined by Section
355	355	46.055, Penal Code; and
356	356	(2) the firearm is retired by the department for
357	357	replacement purposes.
358	358	SECTION 13. Section 9.31(b), Penal Code, is amended to read
359	359	as follows:
360	360	(b) The use of force against another is not justified:
361	361	(1) in response to verbal provocation alone;
362	362	(2) to resist an arrest or search that the actor knows
363	363	is being made by a peace officer, or by a person acting in a peace
364	364	officer's presence and at his direction, even though the arrest or
365	365	search is unlawful, unless the resistance is justified under
366	366	Subsection (c);
367	367	(3) if the actor consented to the exact force used or
368	368	attempted by the other;
369	369	(4) if the actor provoked the other's use or attempted
370	370	use of unlawful force, unless:
371	371	(A) the actor abandons the encounter, or clearly
372	372	communicates to the other his intent to do so reasonably believing
373	373	he cannot safely abandon the encounter; and
374	374	(B) the other nevertheless continues or attempts
375	375	to use unlawful force against the actor; or
376	376	(5) if the actor sought an explanation from or
377	377	discussion with the other person concerning the actor's differences
378	378	with the other person while the actor was:
379	379	(A) carrying a weapon in violation of Section
380	380	46.02; [or]
381	381	(B) possessing or transporting a weapon in
382	382	violation of Section 46.05; or
383	383	(C) possessing an assault weapon in violation of
384	384	Section 46.055.
385	385	SECTION 14. This Act takes effect December 1, 2021.