Texas 2023 - 88th Regular

Texas House Bill HB1623 Compare Versions

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Version 2 (New)

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1	1	88R5769 AJZ-D
2	2	By: Ortega H.B. No. 1623
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 certain semiautomatic rifles.
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 CERTAIN
13	13	SEMIAUTOMATIC RIFLES. (a) This section applies only to a
14	14	semiautomatic rifle that is capable of accepting a detachable
15	15	magazine and that has a caliber greater than .22.
16	16	(b) A person commits an offense if the person knowingly:
17	17	(1) possesses a semiautomatic rifle; or
18	18	(2) sells, offers to sell, or otherwise transfers a
19	19	semiautomatic rifle.
20	20	(c) An offense under this section is a Class A misdemeanor.
21	21	(d) It is a defense to prosecution under this section that
22	22	the actor engaged in the conduct while engaged in the actual
23	23	discharge of official duties, or directly en route to or from the
24	24	person's place of assignment, as:
25	25	(1) a peace officer; or
26	26	(2) a member of the armed forces or state military
27	27	forces as defined by Section 431.001, Government Code.
28	28	(e) It is a defense to prosecution under Subsection (b)(1)
29	29	that the actor lawfully possessed the semiautomatic rifle on August
30	30	31, 2023.
31	31	(f) If conduct that constitutes an offense under this
32	32	section also constitutes an offense under any other law, the actor
33	33	may be prosecuted under this section, the other law, or both.
34	34	SECTION 2. Section 5.141(a), Alcoholic Beverage Code, is
35	35	amended to read as follows:
36	36	(a) A commissioned inspector or representative of the
37	37	commission may purchase for an amount set by the commission, not to
38	38	exceed fair market value, a firearm issued to the inspector or
39	39	representative by the commission if:
40	40	(1) the firearm is not:
41	41	(A) listed as a prohibited weapon under Section
42	42	46.05, Penal Code; or
43	43	(B) a semiautomatic rifle described by Section
44	44	46.055(a), Penal Code; [,] and
45	45	(2) [if] the firearm is retired by the commission for
46	46	replacement purposes.
47	47	SECTION 3. Article 15.27(h), Code of Criminal Procedure, is
48	48	amended to read as follows:
49	49	(h) This article applies to any felony offense and the
50	50	following misdemeanors:
51	51	(1) an offense under Section 20.02, 21.08, 22.01,
52	52	22.05, 22.07, or 71.02, Penal Code;
53	53	(2) the unlawful use, sale, or possession of a
54	54	controlled substance, drug paraphernalia, or marihuana, as defined
55	55	by Chapter 481, Health and Safety Code; or
56	56	(3) the unlawful possession of any of the weapons or
57	57	devices listed in Sections 46.01(1)-(14) or Section 46.01(16)
58	58	[(16)], Penal Code, [or] a weapon listed as a prohibited weapon
59	59	under Section 46.05, Penal Code, or a semiautomatic rifle described
60	60	by Section 46.055(a), Penal Code.
61	61	SECTION 4. The heading to Article 18.18, Code of Criminal
62	62	Procedure, is amended to read as follows:
63	63	Art. 18.18. DISPOSITION OF GAMBLING PARAPHERNALIA,
64	64	PROHIBITED WEAPON, SEMIAUTOMATIC RIFLE, CRIMINAL INSTRUMENT, AND
65	65	OTHER CONTRABAND.
66	66	SECTION 5. Articles 18.18(a), (b), (e), (f), and (g), Code
67	67	of Criminal Procedure, are amended to read as follows:
68	68	(a) Following the final conviction of a person for
69	69	possession of a gambling device or equipment, altered gambling
70	70	equipment, or gambling paraphernalia, for an offense involving a
71	71	criminal instrument, for an offense involving an obscene device or
72	72	material, for an offense involving child pornography, or for an
73	73	offense involving a scanning device or re-encoder, the court
74	74	entering the judgment of conviction shall order that the machine,
75	75	device, gambling equipment or gambling paraphernalia, instrument,
76	76	obscene device or material, child pornography, or scanning device
77	77	or re-encoder be destroyed or forfeited to the state. Not later than
78	78	the 30th day after the final conviction of a person for an offense
79	79	involving a prohibited weapon or semiautomatic rifle, the court
80	80	entering the judgment of conviction on its own motion, on the motion
81	81	of the prosecuting attorney in the case, or on the motion of the law
82	82	enforcement agency initiating the complaint on notice to the
83	83	prosecuting attorney in the case if the prosecutor fails to move for
84	84	the order shall order that the prohibited weapon or semiautomatic
85	85	rifle be destroyed or forfeited to the law enforcement agency that
86	86	initiated the complaint. If the court fails to enter the order
87	87	within the time required by this subsection, any magistrate in the
88	88	county in which the offense occurred may enter the order. Following
89	89	the final conviction of a person for an offense involving dog
90	90	fighting, the court entering the judgment of conviction shall order
91	91	that any dog-fighting equipment be destroyed or forfeited to the
92	92	state. Destruction of dogs, if necessary, must be carried out by a
93	93	veterinarian licensed in this state or, if one is not available, by
94	94	trained personnel of a humane society or an animal shelter. If
95	95	forfeited, the court shall order the contraband delivered to the
96	96	state, any political subdivision of the state, or to any state
97	97	institution or agency. If gambling proceeds were seized, the court
98	98	shall order them forfeited to the state and shall transmit them to
99	99	the grand jury of the county in which they were seized for use in
100	100	investigating alleged violations of the Penal Code, or to the
101	101	state, any political subdivision of the state, or to any state
102	102	institution or agency.
103	103	(b) If there is no prosecution or conviction following
104	104	seizure, the magistrate to whom the return was made shall notify in
105	105	writing the person found in possession of the alleged gambling
106	106	device or equipment, altered gambling equipment or gambling
107	107	paraphernalia, gambling proceeds, prohibited weapon, semiautomatic
108	108	rifle, obscene device or material, child pornography, scanning
109	109	device or re-encoder, criminal instrument, or dog-fighting
110	110	equipment to show cause why the property seized should not be
111	111	destroyed or the proceeds forfeited. The magistrate, on the motion
112	112	of the law enforcement agency seizing a prohibited weapon or a
113	113	semiautomatic rifle, shall order the weapon destroyed or forfeited
114	114	to the law enforcement agency seizing the weapon, unless a person
115	115	shows cause as to why the prohibited weapon or semiautomatic rifle
116	116	should not be destroyed or forfeited. A law enforcement agency
117	117	shall make a motion under this section in a timely manner after the
118	118	time at which the agency is informed in writing by the attorney
119	119	representing the state that no prosecution will arise from the
120	120	seizure.
121	121	(e) Any person interested in the alleged gambling device or
122	122	equipment, altered gambling equipment or gambling paraphernalia,
123	123	gambling proceeds, prohibited weapon, semiautomatic rifle, obscene
124	124	device or material, child pornography, scanning device or
125	125	re-encoder, criminal instrument, or dog-fighting equipment seized
126	126	must appear before the magistrate on the 20th day following the date
127	127	the notice was mailed or posted. Failure to timely appear forfeits
128	128	any interest the person may have in the property or proceeds seized,
129	129	and no person after failing to timely appear may contest
130	130	destruction or forfeiture.
131	131	(f) If a person timely appears to show cause why the
132	132	property or proceeds should not be destroyed or forfeited, the
133	133	magistrate shall conduct a hearing on the issue and determine the
134	134	nature of property or proceeds and the person's interest therein.
135	135	Unless the person proves by a preponderance of the evidence that the
136	136	property or proceeds is not gambling equipment, altered gambling
137	137	equipment, gambling paraphernalia, gambling device, gambling
138	138	proceeds, prohibited weapon, semiautomatic rifle, obscene device
139	139	or material, child pornography, criminal instrument, scanning
140	140	device or re-encoder, or dog-fighting equipment and that he is
141	141	entitled to possession, the magistrate shall dispose of the
142	142	property or proceeds in accordance with Paragraph (a) of this
143	143	article.
144	144	(g) For purposes of this article:
145	145	(1) "criminal instrument" has the meaning defined in
146	146	the Penal Code;
147	147	(2) "gambling device or equipment, altered gambling
148	148	equipment or gambling paraphernalia" has the meaning defined in the
149	149	Penal Code;
150	150	(3) "prohibited weapon" has the meaning defined in the
151	151	Penal Code;
152	152	(4) "dog-fighting equipment" means:
153	153	(A) equipment used for training or handling a
154	154	fighting dog, including a harness, treadmill, cage, decoy, pen,
155	155	house for keeping a fighting dog, feeding apparatus, or training
156	156	pen;
157	157	(B) equipment used for transporting a fighting
158	158	dog, including any automobile, or other vehicle, and its
159	159	appurtenances which are intended to be used as a vehicle for
160	160	transporting a fighting dog;
161	161	(C) equipment used to promote or advertise an
162	162	exhibition of dog fighting, including a printing press or similar
163	163	equipment, paper, ink, or photography equipment; or
164	164	(D) a dog trained, being trained, or intended to
165	165	be used to fight with another dog;
166	166	(5) "obscene device" and "obscene" have the meanings
167	167	assigned by Section 43.21, Penal Code;
168	168	(6) "re-encoder" has the meaning assigned by Section
169	169	522.001, Business & Commerce Code;
170	170	(7) "scanning device" has the meaning assigned by
171	171	Section 522.001, Business & Commerce Code; [and]
172	172	(8) "obscene material" and "child pornography"
173	173	include digital images and the media and equipment on which those
174	174	images are stored; and
175	175	(9) "semiautomatic rifle" means a semiautomatic rifle
176	176	described by Section 46.055(a), Penal Code.
177	177	SECTION 6. Articles 18.19(a) and (d), Code of Criminal
178	178	Procedure, are amended to read as follows:
179	179	(a) Weapons seized in connection with an offense involving
180	180	the use of a weapon or an offense under Penal Code Chapter 46 shall
181	181	be held by the law enforcement agency making the seizure, subject to
182	182	the following provisions, unless:
183	183	(1) the weapon is a prohibited weapon identified in
184	184	Penal Code Chapter 46, or a semiautomatic rifle described by
185	185	Section 46.055(a), Penal Code, in which event Article 18.18 of this
186	186	code applies; or
187	187	(2) the weapon is alleged to be stolen property, in
188	188	which event Chapter 47 of this code applies.
189	189	(d) A person either convicted or receiving deferred
190	190	adjudication under Chapter 46, Penal Code, is entitled to the
191	191	weapon seized upon request to the court in which the person was
192	192	convicted or placed on deferred adjudication. However, the court
193	193	entering the judgment shall order the weapon destroyed, sold at
194	194	public sale by the law enforcement agency holding the weapon or by
195	195	an auctioneer licensed under Chapter 1802, Occupations Code, or
196	196	forfeited to the state for use by the law enforcement agency holding
197	197	the weapon or by a county forensic laboratory designated by the
198	198	court if:
199	199	(1) the person does not request the weapon before the
200	200	61st day after the date of the judgment of conviction or the order
201	201	placing the person on deferred adjudication;
202	202	(2) the person has been previously convicted under
203	203	Chapter 46, Penal Code;
204	204	(3) the weapon is one defined as a prohibited weapon
205	205	under Chapter 46, Penal Code, or a semiautomatic rifle described by
206	206	Section 46.055(a), Penal Code;
207	207	(4) the offense for which the person is convicted or
208	208	receives deferred adjudication was committed in or on the premises
209	209	of a playground, school, video arcade facility, or youth center, as
210	210	those terms are defined by Section 481.134, Health and Safety Code;
211	211	or
212	212	(5) the court determines based on the prior criminal
213	213	history of the defendant or based on the circumstances surrounding
214	214	the commission of the offense that possession of the seized weapon
215	215	would pose a threat to the community or one or more individuals.
216	216	SECTION 7. Section 37.005(c), Education Code, is amended to
217	217	read as follows:
218	218	(c) A student who is enrolled in a grade level below grade
219	219	three may not be placed in out-of-school suspension unless while on
220	220	school property or while attending a school-sponsored or
221	221	school-related activity on or off of school property, the student
222	222	engages in:
223	223	(1) conduct that contains the elements of an offense
224	224	related to weapons under Section 46.02, [or] 46.05, or 46.055,
225	225	Penal Code;
226	226	(2) conduct that contains the elements of a violent
227	227	offense under Section 22.01, 22.011, 22.02, or 22.021, Penal Code;
228	228	or
229	229	(3) selling, giving, or delivering to another person
230	230	or possessing, using, or being under the influence of any amount of:
231	231	(A) marihuana or a controlled substance, as
232	232	defined by Chapter 481, Health and Safety Code, or by 21 U.S.C.
233	233	Section 801 et seq.;
234	234	(B) a dangerous drug, as defined by Chapter 483,
235	235	Health and Safety Code; or
236	236	(C) an alcoholic beverage, as defined by Section
237	237	1.04, Alcoholic Beverage Code.
238	238	SECTION 8. Section 37.007(a), Education Code, is amended to
239	239	read as follows:
240	240	(a) Except as provided by Subsection (k), a student shall be
241	241	expelled from a school if the student, on school property or while
242	242	attending a school-sponsored or school-related activity on or off
243	243	of school property:
244	244	(1) engages in conduct that contains the elements of
245	245	the offense of unlawfully carrying weapons under Section 46.02,
246	246	Penal Code, [or] elements of an offense relating to prohibited
247	247	weapons under Section 46.05, Penal Code, or elements of an offense
248	248	relating to semiautomatic rifles under Section 46.055, Penal Code;
249	249	(2) engages in conduct that contains the elements of
250	250	the offense of:
251	251	(A) aggravated assault under Section 22.02,
252	252	Penal Code, sexual assault under Section 22.011, Penal Code, or
253	253	aggravated sexual assault under Section 22.021, Penal Code;
254	254	(B) arson under Section 28.02, Penal Code;
255	255	(C) murder under Section 19.02, Penal Code,
256	256	capital murder under Section 19.03, Penal Code, or criminal
257	257	attempt, under Section 15.01, Penal Code, to commit murder or
258	258	capital murder;
259	259	(D) indecency with a child under Section 21.11,
260	260	Penal Code;
261	261	(E) aggravated kidnapping under Section 20.04,
262	262	Penal Code;
263	263	(F) aggravated robbery under Section 29.03,
264	264	Penal Code;
265	265	(G) manslaughter under Section 19.04, Penal
266	266	Code;
267	267	(H) criminally negligent homicide under Section
268	268	19.05, Penal Code; or
269	269	(I) continuous sexual abuse of young child or
270	270	disabled individual under Section 21.02, Penal Code; or
271	271	(3) engages in conduct specified by Section
272	272	37.006(a)(2)(C) or (D), if the conduct is punishable as a felony.
273	273	SECTION 9. Section 411.020(a), Government Code, is amended
274	274	to read as follows:
275	275	(a) A commissioned officer of the department may purchase
276	276	for an amount set by the department, not to exceed fair market
277	277	value, a firearm issued to the officer by the department if:
278	278	(1) the firearm is not:
279	279	(A) listed as a prohibited weapon under Section
280	280	46.05, Penal Code; or
281	281	(B) a semiautomatic rifle described by Section
282	282	46.055(a), Penal Code; [,] and
283	283	(2) [if] the firearm is retired by the department for
284	284	replacement purposes.
285	285	SECTION 10. Section 614.051(a), Government Code, is amended
286	286	to read as follows:
287	287	(a) An individual may purchase a firearm from a governmental
288	288	entity if:
289	289	(1) the individual was a peace officer commissioned by
290	290	the entity;
291	291	(2) the individual was honorably retired from the
292	292	individual's commission by the entity;
293	293	(3) the firearm had been previously issued to the
294	294	individual by the entity; and
295	295	(4) the firearm is not a prohibited weapon under
296	296	Section 46.05, Penal Code, or a semiautomatic rifle described by
297	297	Section 46.055(a), Penal Code.
298	298	SECTION 11. Section 614.052(a), Government Code, is amended
299	299	to read as follows:
300	300	(a) An individual listed under Subsection (b) may purchase a
301	301	firearm from a governmental entity if:
302	302	(1) the firearm had been previously issued by the
303	303	entity to a peace officer commissioned by the entity who died while
304	304	commissioned, without regard to whether the officer died while
305	305	discharging the officer's official duties; and
306	306	(2) the firearm is not a prohibited weapon under
307	307	Section 46.05, Penal Code, or a semiautomatic rifle described by
308	308	Section 46.055(a), Penal Code.
309	309	SECTION 12. Section 11.0193(a), Parks and Wildlife Code, is
310	310	amended to read as follows:
311	311	(a) An employee commissioned by the director as a peace
312	312	officer may purchase for an amount set by the department, not to
313	313	exceed fair market value, a firearm issued to the person by the
314	314	department if:
315	315	(1) the firearm is not:
316	316	(A) listed as a prohibited weapon under Section
317	317	46.05, Penal Code; or
318	318	(B) a semiautomatic rifle described by Section
319	319	46.055(a), Penal Code; and
320	320	(2) the firearm is retired by the department for
321	321	replacement purposes.
322	322	SECTION 13. Section 9.31(b), Penal Code, is amended to read
323	323	as follows:
324	324	(b) The use of force against another is not justified:
325	325	(1) in response to verbal provocation alone;
326	326	(2) to resist an arrest or search that the actor knows
327	327	is being made by a peace officer, or by a person acting in a peace
328	328	officer's presence and at his direction, even though the arrest or
329	329	search is unlawful, unless the resistance is justified under
330	330	Subsection (c);
331	331	(3) if the actor consented to the exact force used or
332	332	attempted by the other;
333	333	(4) if the actor provoked the other's use or attempted
334	334	use of unlawful force, unless:
335	335	(A) the actor abandons the encounter, or clearly
336	336	communicates to the other his intent to do so reasonably believing
337	337	he cannot safely abandon the encounter; and
338	338	(B) the other nevertheless continues or attempts
339	339	to use unlawful force against the actor; or
340	340	(5) if the actor sought an explanation from or
341	341	discussion with the other person concerning the actor's differences
342	342	with the other person while the actor was:
343	343	(A) carrying a weapon in violation of Section
344	344	46.02; [or]
345	345	(B) possessing or transporting a weapon in
346	346	violation of Section 46.05; or
347	347	(C) possessing a semiautomatic rifle in
348	348	violation of Section 46.055.
349	349	SECTION 14. This Act takes effect September 1, 2023.