Texas 2023 - 88th Regular

Texas House Bill HB3057 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New	Differences
1	1	88R3856 JRR-D
2	2	By: A. Johnson of Harris H.B. No. 3057
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:
30	30	(A) under 18 years of age; and
31	31	(B) a member of the respondent's family or
32	32	household; or
33	33	(3) a peace officer.
34	34	(b) An application must:
35	35	(1) include:
36	36	(A) detailed allegations, based on personal
37	37	knowledge of a person described by Subsection (a), regarding any
38	38	dangerous behavior or conduct exhibited by the respondent as a
39	39	result of a serious mental illness, including any behavior or
40	40	conduct related to the respondent's use of firearms;
41	41	(B) any relevant medical or mental health
42	42	information concerning the respondent, including copies of
43	43	relevant medical or mental health records, if available;
44	44	(C) information concerning the quantity, type,
45	45	and location of any firearms the applicant believes to be in the
46	46	respondent's possession or control, if any;
47	47	(D) any other relevant facts indicating a need
48	48	for a protective order under this subchapter; and
49	49	(E) a statement that the applicant believes the
50	50	respondent poses an immediate and present danger of causing bodily
51	51	injury, serious bodily injury, or death to any person, including
52	52	the respondent, as a result of the respondent's serious mental
53	53	illness and access to firearms; and
54	54	(2) be signed by the applicant under an oath that, to
55	55	the knowledge and belief of the applicant, the facts and
56	56	circumstances contained in the application are true.
57	57	(c) An application for a protective order under this
58	58	subchapter may be filed in a district court, juvenile court having
59	59	the jurisdiction of a district court, statutory county court, or
60	60	constitutional county court in the county in which the applicant or
61	61	the respondent resides.
62	62	Art. 7B.153. CONFIDENTIALITY OF CERTAIN INFORMATION. On
63	63	receiving an application containing specific medical or mental
64	64	health information concerning the respondent, the court shall order
65	65	the clerk to:
66	66	(1) strike the information from the public records of
67	67	the court; and
68	68	(2) maintain a confidential record of the information
69	69	for use only by the court.
70	70	Art. 7B.154. TEMPORARY EX PARTE ORDER. (a) If the court
71	71	finds from the information contained in an application for a
72	72	protective order under this subchapter that there is reasonable
73	73	cause to believe that the respondent poses an immediate and present
74	74	danger of causing bodily injury, serious bodily injury, or death to
75	75	any person, including the respondent, as a result of the
76	76	respondent's serious mental illness and access to firearms, the
77	77	court, without further notice to the respondent and without a
78	78	hearing, may issue a temporary ex parte order prohibiting the
79	79	respondent from purchasing, owning, possessing, or controlling a
80	80	firearm.
81	81	(b) In a temporary ex parte order, the court may order the
82	82	respondent to:
83	83	(1) not later than 24 hours after the time the order is
84	84	issued, relinquish any firearms owned by or in the actual or
85	85	constructive possession or control of the respondent to a law
86	86	enforcement agency for holding in the manner provided by Article
87	87	18.192;
88	88	(2) if applicable, surrender to the court the
89	89	respondent's license to carry a handgun issued under Subchapter H,
90	90	Chapter 411, Government Code; and
91	91	(3) for purposes of determining whether the respondent
92	92	has a serious mental illness, submit to an examination by the local
93	93	mental health authority or a disinterested expert who is qualified
94	94	to diagnose, and experienced in diagnosing, mental illness.
95	95	Art. 7B.155. HEARING; ISSUANCE OF PROTECTIVE ORDER. (a)
96	96	Not later than the 14th day after the later of the date an
97	97	application is filed or the date a temporary ex parte order is
98	98	issued, the court shall hold a hearing on the issuance of the
99	99	protective order.
100	100	(b) The court shall provide personal notice of the hearing
101	101	to the respondent.
102	102	(c) In determining whether to issue a protective order under
103	103	this article, the court:
104	104	(1) shall consider:
105	105	(A) the results of an examination described by
106	106	Article 7B.154(b)(3);
107	107	(B) any relevant medical or mental health
108	108	information concerning the respondent;
109	109	(C) any history of threats or acts of violence by
110	110	the respondent directed at any person, including the respondent;
111	111	(D) any history of the respondent using,
112	112	attempting to use, or threatening to use physical force against
113	113	another person;
114	114	(E) any recent violation by the respondent of an
115	115	order issued:
116	116	(i) under another provision of this chapter
117	117	or under Article 17.292;
118	118	(ii) under Section 6.504 or Chapter 85,
119	119	Family Code;
120	120	(iii) under Chapter 83, Family Code, if the
121	121	temporary ex parte order has been served on the respondent; or
122	122	(iv) by another jurisdiction as provided by
123	123	Chapter 88, Family Code;
124	124	(F) any arrest or conviction of the respondent
125	125	for:
126	126	(i) an offense under Section 42.072, Penal
127	127	Code; or
128	128	(ii) an offense involving violence,
129	129	including family violence;
130	130	(G) any conviction of the respondent for an
131	131	offense under Section 42.09, 42.091, or 42.092, Penal Code; and
132	132	(H) evidence related to the respondent's current
133	133	or recent abuse of a controlled substance or alcohol, not including
134	134	any evidence of previous treatment for or recovery from abusing a
135	135	controlled substance or alcohol; and
136	136	(2) may consider any other relevant factor including:
137	137	(A) any previous violation by the respondent of
138	138	an order described by Subdivision (1)(E); and
139	139	(B) evidence regarding the respondent's recent
140	140	acquisition of firearms, ammunition, or other deadly weapons.
141	141	(d) At the close of the hearing, if the court finds by clear
142	142	and convincing evidence that the respondent poses an immediate and
143	143	present danger of causing bodily injury, serious bodily injury, or
144	144	death to any person, including the respondent, as a result of the
145	145	respondent's serious mental illness and access to firearms, the
146	146	court shall issue a protective order that includes a statement of
147	147	the required finding.
148	148	(e) If the court does not make the finding described by
149	149	Subsection (d), the court shall, as applicable, rescind any
150	150	temporary ex parte order issued under Article 7B.154 and return the
151	151	respondent's license to carry a handgun.
152	152	Art. 7B.156. CONTENTS OF PROTECTIVE ORDER. In a protective
153	153	order issued under Article 7B.155, the court shall:
154	154	(1) prohibit the person who is subject to the order
155	155	from purchasing, owning, possessing, or controlling a firearm for
156	156	the duration of the order;
157	157	(2) order the person to:
158	158	(A) not later than 24 hours after the time the
159	159	order is issued, relinquish any firearms owned by or in the actual
160	160	or constructive possession or control of the person to a law
161	161	enforcement agency for holding in the manner provided by Article
162	162	18.192;
163	163	(B) if applicable, surrender to the court the
164	164	person's license to carry a handgun issued under Subchapter H,
165	165	Chapter 411, Government Code; and
166	166	(C) if applicable, receive outpatient mental
167	167	health services if recommended by the local mental health authority
168	168	or expert after the authority or expert performs an examination
169	169	described by Article 7B.154(b)(3); and
170	170	(3) suspend a license to carry a handgun issued under
171	171	Subchapter H, Chapter 411, Government Code, that is held by the
172	172	person.
173	173	Art. 7B.157. DURATION OF PROTECTIVE ORDER. (a) A
174	174	protective order issued under Article 7B.155 is effective until the
175	175	first anniversary of the date the order was issued.
176	176	(b) The court may renew a protective order issued under
177	177	Article 7B.155 for a period not to exceed one year after the order's
178	178	original expiration date. Before renewing the order the court must
179	179	hold a hearing after providing personal notice of the hearing to the
180	180	person who is the subject of the order.
181	181	(c) A person who is the subject of a protective order may
182	182	file a motion not earlier than the 91st day after the date on which
183	183	the order was initially issued or renewed, as applicable,
184	184	requesting that the court review the order and determine whether
185	185	there is a continuing need for the order. After a hearing on the
186	186	motion, if the court fails to make the finding that there is no
187	187	continuing need for the order, the order remains in effect until the
188	188	date the order expires as provided by this article.
189	189	(d) At a hearing to renew or rescind a protective order
190	190	under this article, the court shall consider the factors described
191	191	by Article 7B.155(c).
192	192	Art. 7B.158. NOTICE TO DEPARTMENT OF PUBLIC SAFETY. (a)
193	193	Not later than 24 hours after the time a protective order is issued
194	194	under Article 7B.155, the clerk of the issuing court shall provide
195	195	the following to the Department of Public Safety:
196	196	(1) the complete name, race, and sex of the person who
197	197	is the subject of the order;
198	198	(2) any known identifying number of the person,
199	199	including a social security number, driver's license number, or
200	200	state identification number;
201	201	(3) the person's date of birth;
202	202	(4) if surrendered to the court, the person's license
203	203	to carry a handgun issued under Subchapter H, Chapter 411,
204	204	Government Code; and
205	205	(5) a copy of the order suspending the person's license
206	206	to carry a handgun under Subchapter H, Chapter 411, Government
207	207	Code.
208	208	(b) On receipt of an order suspending a license to carry a
209	209	handgun, the department shall:
210	210	(1) record the suspension of the license in the
211	211	records of the department;
212	212	(2) report the suspension to local law enforcement
213	213	agencies, as appropriate; and
214	214	(3) if the license was not surrendered to the court,
215	215	demand surrender of the suspended license from the license holder.
216	216	(c) Not later than the 30th day after the date the
217	217	protective order is rescinded or expires under Article 7B.157, the
218	218	clerk of the issuing court shall notify the Department of Public
219	219	Safety of the rescission or expiration, as applicable.
220	220	Art. 7B.159. APPLICATION OF OTHER LAW. To the extent
221	221	applicable, except as otherwise provided by this subchapter, Title
222	222	4, Family Code, applies to a protective order issued under this
223	223	subchapter.
224	224	SECTION 2. Chapter 18, Code of Criminal Procedure, is
225	225	amended by adding Article 18.192 to read as follows:
226	226	Art. 18.192. HOLDING AND DISPOSITION OF FIREARM
227	227	RELINQUISHED UNDER EXTREME RISK PROTECTIVE ORDER. (a) A law
228	228	enforcement officer who takes possession of a firearm from a person
229	229	who is the subject of an extreme risk protective order issued under
230	230	Subchapter D, Chapter 7B, shall immediately provide the person a
231	231	written copy of the receipt for the firearm and a written notice of
232	232	the procedure for the return of a firearm under this article.
233	233	(b) Not later than the seventh day after the date a firearm
234	234	subject to disposition under this article is received, the law
235	235	enforcement agency holding the firearm shall notify the court that
236	236	issued the extreme risk protective order that the person who is the
237	237	subject of the order has relinquished the firearm.
238	238	(c) Not later than the 30th day after the date the extreme
239	239	risk protective order is rescinded or expires, the clerk of the
240	240	court shall notify the law enforcement agency of the rescission or
241	241	expiration.
242	242	(d) Not later than the 30th day after the date the law
243	243	enforcement agency holding a firearm subject to disposition under
244	244	this article receives the notice described by Subsection (c), the
245	245	law enforcement agency shall conduct a check of state and national
246	246	criminal history record information to verify whether the person
247	247	may lawfully possess a firearm under 18 U.S.C. Section 922(g) and
248	248	under the law of this state.
249	249	(e) If the check conducted under Subsection (d) verifies
250	250	that the person may lawfully possess a firearm, the law enforcement
251	251	agency shall provide to the person by certified mail written notice
252	252	stating that the firearm may be returned to the person if the person
253	253	submits a written request before the 121st day after the date of the
254	254	notice.
255	255	(f) An unclaimed firearm that is received under an extreme
256	256	risk protective order issued under Subchapter D, Chapter 7B, may
257	257	not be destroyed or forfeited to the state.
258	258	(g) The law enforcement agency holding the firearm may
259	259	provide for the firearm to be sold by a firearms dealer licensed
260	260	under 18 U.S.C. Section 923 if:
261	261	(1) the check conducted under Subsection (d) shows
262	262	that the person may not lawfully possess a firearm; or
263	263	(2) the notice is provided under Subsection (e) and
264	264	the person does not submit, before the 121st day after the date of
265	265	the notice, a written request for the return of the firearm.
266	266	(h) The proceeds from the sale of a firearm under this
267	267	article shall be paid to the owner of the seized firearm, less the
268	268	cost of administering this article with respect to the firearm.
269	269	SECTION 3. Subchapter D, Chapter 411, Government Code, is
270	270	amended by adding Section 411.0522 to read as follows:
271	271	Sec. 411.0522. INFORMATION CONCERNING EXTREME RISK
272	272	PROTECTIVE ORDER. (a) The department by rule shall establish a
273	273	procedure to provide information concerning a person who is the
274	274	subject of an extreme risk protective order issued under Subchapter
275	275	D, Chapter 7B, Code of Criminal Procedure, to the Federal Bureau of
276	276	Investigation for inclusion in the National Instant Criminal
277	277	Background Check System.
278	278	(b) The procedure must require the department to provide any
279	279	information received under Article 7B.158, Code of Criminal
280	280	Procedure, to the Federal Bureau of Investigation not later than 24
281	281	hours after the time the department received the information.
282	282	SECTION 4. Section 411.172(a), Government Code, is amended
283	283	to read as follows:
284	284	(a) A person is eligible for a license to carry a handgun if
285	285	the person:
286	286	(1) is a legal resident of this state for the six-month
287	287	period preceding the date of application under this subchapter or
288	288	is otherwise eligible for a license under Section 411.173(a);
289	289	(2) is at least 21 years of age;
290	290	(3) has not been convicted of a felony;
291	291	(4) is not charged with the commission of a Class A or
292	292	Class B misdemeanor or equivalent offense, or of an offense under
293	293	Section 42.01, Penal Code, or equivalent offense, or of a felony
294	294	under an information or indictment;
295	295	(5) is not a fugitive from justice for a felony or a
296	296	Class A or Class B misdemeanor or equivalent offense;
297	297	(6) is not a chemically dependent person;
298	298	(7) is not incapable of exercising sound judgment with
299	299	respect to the proper use and storage of a handgun;
300	300	(8) has not, in the five years preceding the date of
301	301	application, been convicted of a Class A or Class B misdemeanor or
302	302	equivalent offense or of an offense under Section 42.01, Penal
303	303	Code, or equivalent offense;
304	304	(9) is fully qualified under applicable federal and
305	305	state law to purchase a handgun;
306	306	(10) has not been finally determined to be delinquent
307	307	in making a child support payment administered or collected by the
308	308	attorney general;
309	309	(11) has not been finally determined to be delinquent
310	310	in the payment of a tax or other money collected by the comptroller,
311	311	the tax collector of a political subdivision of the state, or any
312	312	agency or subdivision of the state;
313	313	(12) is not currently:
314	314	(A) restricted under a court protective order,
315	315	including an extreme risk protective order issued under Subchapter
316	316	D, Chapter 7B, Code of Criminal Procedure; or
317	317	(B) subject to a restraining order affecting the
318	318	spousal relationship, other than a restraining order solely
319	319	affecting property interests;
320	320	(13) has not, in the 10 years preceding the date of
321	321	application, been adjudicated as having engaged in delinquent
322	322	conduct violating a penal law of the grade of felony; and
323	323	(14) has not made any material misrepresentation, or
324	324	failed to disclose any material fact, in an application submitted
325	325	pursuant to Section 411.174.
326	326	SECTION 5. Sections 411.187(a) and (c), Government Code,
327	327	are amended to read as follows:
328	328	(a) The department shall suspend a license under this
329	329	section if the license holder:
330	330	(1) is charged with the commission of a Class A or
331	331	Class B misdemeanor or equivalent offense, or of an offense under
332	332	Section 42.01, Penal Code, or equivalent offense, or of a felony
333	333	under an information or indictment;
334	334	(2) fails to notify the department of a change of
335	335	address, name, or status as required by Section 411.181;
336	336	(3) commits an act of family violence and is the
337	337	subject of an active protective order rendered under Title 4,
338	338	Family Code; [or]
339	339	(4) is arrested for an offense involving family
340	340	violence or an offense under Section 42.072, Penal Code, and is the
341	341	subject of an order for emergency protection issued under Article
342	342	17.292, Code of Criminal Procedure; or
343	343	(5) is the subject of an active protective order
344	344	issued under Subchapter D, Chapter 7B, Code of Criminal Procedure.
345	345	(c) The department shall suspend a license under this
346	346	section:
347	347	(1) for 30 days, if the person's license is subject to
348	348	suspension for a reason listed in Subsection (a)(2)[, (3), or (4),
349	349	except as provided by Subdivision (2)];
350	350	(2) [for not less than one year and not more than three
351	351	years, if the person's license:
352	352	[(A) is subject to suspension for a reason listed
353	353	in Subsection (a), other than the reason listed in Subsection
354	354	(a)(1); and
355	355	[(B) has been previously suspended for the same
356	356	reason;
357	357	[(3)] until dismissal of the charges, if the person's
358	358	license is subject to suspension for the reason listed in
359	359	Subsection (a)(1); or
360	360	(3) [(4)] for the duration of or the period specified
361	361	by:
362	362	(A) the protective order issued under Title 4,
363	363	Family Code, if the person's license is subject to suspension for
364	364	the reason listed in Subsection (a)(3) [(a)(5)]; [or]
365	365	(B) the order for emergency protection issued
366	366	under Article 17.292, Code of Criminal Procedure, if the person's
367	367	license is subject to suspension for the reason listed in
368	368	Subsection (a)(4); or
369	369	(C) the extreme risk protective order issued
370	370	under Subchapter D, Chapter 7B, Code of Criminal Procedure, if the
371	371	person's license is subject to suspension for the reason listed in
372	372	Subsection (a)(5) [(a)(6)].
373	373	SECTION 6. Chapter 37, Penal Code, is amended by adding
374	374	Section 37.083 to read as follows:
375	375	Sec. 37.083. FALSE REPORT REGARDING REQUEST FOR EXTREME
376	376	RISK PROTECTIVE ORDER. (a) A person commits an offense if, with
377	377	intent to deceive, the person makes a statement that the person
378	378	knows to be false to a peace officer relating to a request that the
379	379	officer file an application for an extreme risk protective order
380	380	under Subchapter D, Chapter 7B, Code of Criminal Procedure.
381	381	(b) An offense under this section is a Class B misdemeanor.
382	382	(c) If conduct that constitutes an offense under this
383	383	section also constitutes an offense under another law, the actor
384	384	may be prosecuted under this section, the other law, or both.
385	385	SECTION 7. Section 46.04, Penal Code, is amended by adding
386	386	Subsection (c-1) and amending Subsection (e) to read as follows:
387	387	(c-1) A person commits an offense if, after receiving notice
388	388	that the person is subject to an extreme risk protective order
389	389	issued under Subchapter D, Chapter 7B, Code of Criminal Procedure,
390	390	and before rescission or expiration of the order, the person
391	391	purchases, owns, possesses, or controls a firearm in violation of
392	392	the order.
393	393	(e) An offense under Subsection (a) is a felony of the third
394	394	degree. An offense under Subsection (a-1), (b), [or] (c), or (c-1)
395	395	is a Class A misdemeanor.
396	396	SECTION 8. Not later than October 1, 2023, the Department of
397	397	Public Safety shall adopt rules as required by Section 411.0522,
398	398	Government Code, as added by this Act.
399	399	SECTION 9. This Act takes effect September 1, 2023.