Texas 2023 - 88th Regular

Texas House Bill HB817 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New	Differences
1	1	88R4456 AJZ-D
2	2	By: Meza H.B. No. 817
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 an assault weapon.
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 ASSAULT
13	13	WEAPON. (a) In this section, "assault weapon" means:
14	14	(1) a semiautomatic centerfire rifle that has the
15	15	capacity to accept a detachable magazine that has:
16	16	(A) a pistol grip that protrudes conspicuously
17	17	beneath the action of the firearm;
18	18	(B) a folding or telescoping stock;
19	19	(C) a thumbhole stock;
20	20	(D) a second handgrip or a protruding grip that
21	21	can be held by the non-trigger hand;
22	22	(E) a flash suppressor; or
23	23	(F) a grenade launcher or flare launcher;
24	24	(2) a semiautomatic centerfire rifle that has a fixed
25	25	magazine that holds more than 10 rounds of ammunition;
26	26	(3) a semiautomatic centerfire rifle that has an
27	27	overall length of less than 30 inches;
28	28	(4) a semiautomatic shotgun that has the capacity to
29	29	accept a detachable magazine;
30	30	(5) a semiautomatic shotgun that has a folding or
31	31	telescoping stock and has:
32	32	(A) a thumbhole stock; or
33	33	(B) a second handgrip or a protruding grip that
34	34	can be held by the non-trigger hand;
35	35	(6) a semiautomatic pistol that has the capacity to
36	36	accept a detachable magazine and has:
37	37	(A) a second handgrip or a protruding grip that
38	38	can be held by the non-trigger hand;
39	39	(B) an ammunition magazine that attaches to the
40	40	pistol outside of the pistol grip;
41	41	(C) a threaded barrel capable of accepting a
42	42	flash suppressor, forward handgrip, or silencer; or
43	43	(D) a shroud that is attached to or partially or
44	44	completely encircles the barrel and that permits the shooter to
45	45	hold the firearm with the non-trigger hand without being burned;
46	46	(7) a semiautomatic pistol that has a fixed magazine
47	47	that holds more than 10 rounds of ammunition;
48	48	(8) a revolving cylinder shotgun; or
49	49	(9) a conversion kit, part, or combination of parts
50	50	from which an assault weapon can be assembled or with which a
51	51	firearm may be converted into a weapon described by Subdivision
52	52	(1), (2), (3), (4), (5), (6), (7), or (8).
53	53	(b) For purposes of this section, "assault weapon" does not
54	54	include any rifle, shotgun, or pistol that has been rendered
55	55	permanently inoperable.
56	56	(c) A person commits an offense if the person knowingly:
57	57	(1) possesses an assault weapon; or
58	58	(2) sells, offers to sell, or otherwise transfers an
59	59	assault weapon.
60	60	(d) An offense under this section is a Class A misdemeanor.
61	61	(e) It is a defense to prosecution under this section that
62	62	the actor engaged in the conduct while engaged in the actual
63	63	discharge of official duties, or directly en route to or from the
64	64	person's place of assignment, as:
65	65	(1) a peace officer; or
66	66	(2) a member of the armed forces or state military
67	67	forces as defined by Section 431.001, Government Code.
68	68	(f) It is a defense to prosecution under Subsection (c)(1)
69	69	that the actor lawfully possessed the assault weapon on August 31,
70	70	2023.
71	71	(g) If conduct that constitutes an offense under this
72	72	section also constitutes an offense under any other law, the actor
73	73	may be prosecuted under this section, the other law, or both.
74	74	SECTION 2. Section 5.141(a), Alcoholic Beverage Code, is
75	75	amended to read as follows:
76	76	(a) A commissioned inspector or representative of the
77	77	commission may purchase for an amount set by the commission, not to
78	78	exceed fair market value, a firearm issued to the inspector or
79	79	representative by the commission if:
80	80	(1) the firearm is not:
81	81	(A) listed as a prohibited weapon under Section
82	82	46.05, Penal Code; or
83	83	(B) an assault weapon as defined by Section
84	84	46.055, Penal Code;[,] and
85	85	(2) [if] the firearm is retired by the commission for
86	86	replacement purposes.
87	87	SECTION 3. Article 15.27(h), Code of Criminal Procedure, is
88	88	amended to read as follows:
89	89	(h) This article applies to any felony offense and the
90	90	following misdemeanors:
91	91	(1) an offense under Section 20.02, 21.08, 22.01,
92	92	22.05, 22.07, or 71.02, Penal Code;
93	93	(2) the unlawful use, sale, or possession of a
94	94	controlled substance, drug paraphernalia, or marihuana, as defined
95	95	by Chapter 481, Health and Safety Code; or
96	96	(3) the unlawful possession of any of the weapons or
97	97	devices listed in Sections 46.01(1)-(14) or Section 46.01(16)
98	98	[(16)], Penal Code, [or] a weapon listed as a prohibited weapon
99	99	under Section 46.05, Penal Code, or an assault weapon as defined by
100	100	Section 46.055, Penal Code.
101	101	SECTION 4. The heading to Article 18.18, Code of Criminal
102	102	Procedure, is amended to read as follows:
103	103	Art. 18.18. DISPOSITION OF GAMBLING PARAPHERNALIA,
104	104	PROHIBITED WEAPON, ASSAULT WEAPON, CRIMINAL INSTRUMENT, AND OTHER
105	105	CONTRABAND.
106	106	SECTION 5. Articles 18.18(a), (b), (e), (f), and (g), Code
107	107	of Criminal Procedure, are amended to read as follows:
108	108	(a) Following the final conviction of a person for
109	109	possession of a gambling device or equipment, altered gambling
110	110	equipment, or gambling paraphernalia, for an offense involving a
111	111	criminal instrument, for an offense involving an obscene device or
112	112	material, for an offense involving child pornography, or for an
113	113	offense involving a scanning device or re-encoder, the court
114	114	entering the judgment of conviction shall order that the machine,
115	115	device, gambling equipment or gambling paraphernalia, instrument,
116	116	obscene device or material, child pornography, or scanning device
117	117	or re-encoder be destroyed or forfeited to the state. Not later than
118	118	the 30th day after the final conviction of a person for an offense
119	119	involving a prohibited weapon or an assault weapon, the court
120	120	entering the judgment of conviction on its own motion, on the motion
121	121	of the prosecuting attorney in the case, or on the motion of the law
122	122	enforcement agency initiating the complaint on notice to the
123	123	prosecuting attorney in the case if the prosecutor fails to move for
124	124	the order shall order that the prohibited weapon or assault weapon
125	125	be destroyed or forfeited to the law enforcement agency that
126	126	initiated the complaint. If the court fails to enter the order
127	127	within the time required by this subsection, any magistrate in the
128	128	county in which the offense occurred may enter the order. Following
129	129	the final conviction of a person for an offense involving dog
130	130	fighting, the court entering the judgment of conviction shall order
131	131	that any dog-fighting equipment be destroyed or forfeited to the
132	132	state. Destruction of dogs, if necessary, must be carried out by a
133	133	veterinarian licensed in this state or, if one is not available, by
134	134	trained personnel of a humane society or an animal shelter. If
135	135	forfeited, the court shall order the contraband delivered to the
136	136	state, any political subdivision of the state, or to any state
137	137	institution or agency. If gambling proceeds were seized, the court
138	138	shall order them forfeited to the state and shall transmit them to
139	139	the grand jury of the county in which they were seized for use in
140	140	investigating alleged violations of the Penal Code, or to the
141	141	state, any political subdivision of the state, or to any state
142	142	institution or agency.
143	143	(b) If there is no prosecution or conviction following
144	144	seizure, the magistrate to whom the return was made shall notify in
145	145	writing the person found in possession of the alleged gambling
146	146	device or equipment, altered gambling equipment or gambling
147	147	paraphernalia, gambling proceeds, prohibited weapon, assault
148	148	weapon, obscene device or material, child pornography, scanning
149	149	device or re-encoder, criminal instrument, or dog-fighting
150	150	equipment to show cause why the property seized should not be
151	151	destroyed or the proceeds forfeited. The magistrate, on the motion
152	152	of the law enforcement agency seizing a prohibited weapon or an
153	153	assault weapon, shall order the weapon destroyed or forfeited to
154	154	the law enforcement agency seizing the weapon, unless a person
155	155	shows cause as to why the prohibited weapon or assault weapon should
156	156	not be destroyed or forfeited. A law enforcement agency shall make a
157	157	motion under this section in a timely manner after the time at which
158	158	the agency is informed in writing by the attorney representing the
159	159	state that no prosecution will arise from the seizure.
160	160	(e) Any person interested in the alleged gambling device or
161	161	equipment, altered gambling equipment or gambling paraphernalia,
162	162	gambling proceeds, prohibited weapon, assault weapon, obscene
163	163	device or material, child pornography, scanning device or
164	164	re-encoder, criminal instrument, or dog-fighting equipment seized
165	165	must appear before the magistrate on the 20th day following the date
166	166	the notice was mailed or posted. Failure to timely appear forfeits
167	167	any interest the person may have in the property or proceeds seized,
168	168	and no person after failing to timely appear may contest
169	169	destruction or forfeiture.
170	170	(f) If a person timely appears to show cause why the
171	171	property or proceeds should not be destroyed or forfeited, the
172	172	magistrate shall conduct a hearing on the issue and determine the
173	173	nature of property or proceeds and the person's interest therein.
174	174	Unless the person proves by a preponderance of the evidence that the
175	175	property or proceeds is not gambling equipment, altered gambling
176	176	equipment, gambling paraphernalia, gambling device, gambling
177	177	proceeds, prohibited weapon, assault weapon, obscene device or
178	178	material, child pornography, criminal instrument, scanning device
179	179	or re-encoder, or dog-fighting equipment and that he is entitled to
180	180	possession, the magistrate shall dispose of the property or
181	181	proceeds in accordance with Paragraph (a) of this article.
182	182	(g) For purposes of this article:
183	183	(1) "criminal instrument" has the meaning defined in
184	184	the Penal Code;
185	185	(2) "gambling device or equipment, altered gambling
186	186	equipment or gambling paraphernalia" has the meaning defined in the
187	187	Penal Code;
188	188	(3) "prohibited weapon" has the meaning defined in the
189	189	Penal Code;
190	190	(4) "dog-fighting equipment" means:
191	191	(A) equipment used for training or handling a
192	192	fighting dog, including a harness, treadmill, cage, decoy, pen,
193	193	house for keeping a fighting dog, feeding apparatus, or training
194	194	pen;
195	195	(B) equipment used for transporting a fighting
196	196	dog, including any automobile, or other vehicle, and its
197	197	appurtenances which are intended to be used as a vehicle for
198	198	transporting a fighting dog;
199	199	(C) equipment used to promote or advertise an
200	200	exhibition of dog fighting, including a printing press or similar
201	201	equipment, paper, ink, or photography equipment; or
202	202	(D) a dog trained, being trained, or intended to
203	203	be used to fight with another dog;
204	204	(5) "obscene device" and "obscene" have the meanings
205	205	assigned by Section 43.21, Penal Code;
206	206	(6) "re-encoder" has the meaning assigned by Section
207	207	522.001, Business & Commerce Code;
208	208	(7) "scanning device" has the meaning assigned by
209	209	Section 522.001, Business & Commerce Code; [and]
210	210	(8) "obscene material" and "child pornography"
211	211	include digital images and the media and equipment on which those
212	212	images are stored; and
213	213	(9) "assault weapon" has the meaning assigned by
214	214	Section 46.055, Penal Code.
215	215	SECTION 6. Articles 18.19(a) and (d), Code of Criminal
216	216	Procedure, are amended to read as follows:
217	217	(a) Weapons seized in connection with an offense involving
218	218	the use of a weapon or an offense under Chapter 46, Penal Code,
219	219	[Chapter 46] shall be held by the law enforcement agency making the
220	220	seizure, subject to the following provisions, unless:
221	221	(1) the weapon is a prohibited weapon identified in
222	222	[Penal Code] Chapter 46, Penal Code, or an assault weapon as defined
223	223	by Section 46.055, Penal Code, in which event Article 18.18 of this
224	224	code applies; or
225	225	(2) the weapon is alleged to be stolen property, in
226	226	which event Chapter 47 of this code applies.
227	227	(d) A person either convicted or receiving deferred
228	228	adjudication under Chapter 46, Penal Code, is entitled to the
229	229	weapon seized upon request to the court in which the person was
230	230	convicted or placed on deferred adjudication. However, the court
231	231	entering the judgment shall order the weapon destroyed, sold at
232	232	public sale by the law enforcement agency holding the weapon or by
233	233	an auctioneer licensed under Chapter 1802, Occupations Code, or
234	234	forfeited to the state for use by the law enforcement agency holding
235	235	the weapon or by a county forensic laboratory designated by the
236	236	court if:
237	237	(1) the person does not request the weapon before the
238	238	61st day after the date of the judgment of conviction or the order
239	239	placing the person on deferred adjudication;
240	240	(2) the person has been previously convicted under
241	241	Chapter 46, Penal Code;
242	242	(3) the weapon is one defined as a prohibited weapon or
243	243	an assault weapon under Chapter 46, Penal Code;
244	244	(4) the offense for which the person is convicted or
245	245	receives deferred adjudication was committed in or on the premises
246	246	of a playground, school, video arcade facility, or youth center, as
247	247	those terms are defined by Section 481.134, Health and Safety Code;
248	248	or
249	249	(5) the court determines based on the prior criminal
250	250	history of the defendant or based on the circumstances surrounding
251	251	the commission of the offense that possession of the seized weapon
252	252	would pose a threat to the community or one or more individuals.
253	253	SECTION 7. Section 37.005(c), Education Code, is amended to
254	254	read as follows:
255	255	(c) A student who is enrolled in a grade level below grade
256	256	three may not be placed in out-of-school suspension unless while on
257	257	school property or while attending a school-sponsored or
258	258	school-related activity on or off of school property, the student
259	259	engages in:
260	260	(1) conduct that contains the elements of an offense
261	261	related to weapons under Section 46.02, [or] 46.05, or 46.055,
262	262	Penal Code;
263	263	(2) conduct that contains the elements of a violent
264	264	offense under Section 22.01, 22.011, 22.02, or 22.021, Penal Code;
265	265	or
266	266	(3) selling, giving, or delivering to another person
267	267	or possessing, using, or being under the influence of any amount of:
268	268	(A) marihuana or a controlled substance, as
269	269	defined by Chapter 481, Health and Safety Code, or by 21 U.S.C.
270	270	Section 801 et seq.;
271	271	(B) a dangerous drug, as defined by Chapter 483,
272	272	Health and Safety Code; or
273	273	(C) an alcoholic beverage, as defined by Section
274	274	1.04, Alcoholic Beverage Code.
275	275	SECTION 8. Section 37.007(a), Education Code, is amended to
276	276	read as follows:
277	277	(a) Except as provided by Subsection (k), a student shall be
278	278	expelled from a school if the student, on school property or while
279	279	attending a school-sponsored or school-related activity on or off
280	280	of school property:
281	281	(1) engages in conduct that contains the elements of
282	282	the offense of unlawfully carrying weapons under Section 46.02,
283	283	Penal Code, [or] elements of an offense relating to prohibited
284	284	weapons under Section 46.05, Penal Code, or elements of an offense
285	285	relating to assault weapons under Section 46.055, Penal Code;
286	286	(2) engages in conduct that contains the elements of
287	287	the offense of:
288	288	(A) aggravated assault under Section 22.02,
289	289	Penal Code, sexual assault under Section 22.011, Penal Code, or
290	290	aggravated sexual assault under Section 22.021, Penal Code;
291	291	(B) arson under Section 28.02, Penal Code;
292	292	(C) murder under Section 19.02, Penal Code,
293	293	capital murder under Section 19.03, Penal Code, or criminal
294	294	attempt, under Section 15.01, Penal Code, to commit murder or
295	295	capital murder;
296	296	(D) indecency with a child under Section 21.11,
297	297	Penal Code;
298	298	(E) aggravated kidnapping under Section 20.04,
299	299	Penal Code;
300	300	(F) aggravated robbery under Section 29.03,
301	301	Penal Code;
302	302	(G) manslaughter under Section 19.04, Penal
303	303	Code;
304	304	(H) criminally negligent homicide under Section
305	305	19.05, Penal Code; or
306	306	(I) continuous sexual abuse of young child or
307	307	disabled individual under Section 21.02, Penal Code; or
308	308	(3) engages in conduct specified by Section
309	309	37.006(a)(2)(C) or (D), if the conduct is punishable as a felony.
310	310	SECTION 9. Section 411.020(a), Government Code, is amended
311	311	to read as follows:
312	312	(a) A commissioned officer of the department may purchase
313	313	for an amount set by the department, not to exceed fair market
314	314	value, a firearm issued to the officer by the 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) an assault weapon as defined by Section
319	319	46.055, Penal Code;[,] and
320	320	(2) [if] the firearm is retired by the department for
321	321	replacement purposes.
322	322	SECTION 10. Section 614.051(a), Government Code, is amended
323	323	to read as follows:
324	324	(a) An individual may purchase a firearm from a governmental
325	325	entity if:
326	326	(1) the individual was a peace officer commissioned by
327	327	the entity;
328	328	(2) the individual was honorably retired from the
329	329	individual's commission by the entity;
330	330	(3) the firearm had been previously issued to the
331	331	individual by the entity; and
332	332	(4) the firearm is not a prohibited weapon under
333	333	Section 46.05, Penal Code, or an assault weapon as defined by
334	334	Section 46.055, Penal Code.
335	335	SECTION 11. Section 614.052(a), Government Code, is amended
336	336	to read as follows:
337	337	(a) An individual listed under Subsection (b) may purchase a
338	338	firearm from a governmental entity if:
339	339	(1) the firearm had been previously issued by the
340	340	entity to a peace officer commissioned by the entity who died while
341	341	commissioned, without regard to whether the officer died while
342	342	discharging the officer's official duties; and
343	343	(2) the firearm is not a prohibited weapon under
344	344	Section 46.05, Penal Code, or an assault weapon as defined by
345	345	Section 46.055, Penal Code.
346	346	SECTION 12. Section 11.0193(a), Parks and Wildlife Code, is
347	347	amended to read as follows:
348	348	(a) An employee commissioned by the director as a peace
349	349	officer may purchase for an amount set by the department, not to
350	350	exceed fair market value, a firearm issued to the person by the
351	351	department if:
352	352	(1) the firearm is not:
353	353	(A) listed as a prohibited weapon under Section
354	354	46.05, Penal Code; or
355	355	(B) an assault weapon as defined by Section
356	356	46.055, Penal Code; and
357	357	(2) the firearm is retired by the department for
358	358	replacement purposes.
359	359	SECTION 13. Section 9.31(b), Penal Code, is amended to read
360	360	as follows:
361	361	(b) The use of force against another is not justified:
362	362	(1) in response to verbal provocation alone;
363	363	(2) to resist an arrest or search that the actor knows
364	364	is being made by a peace officer, or by a person acting in a peace
365	365	officer's presence and at his direction, even though the arrest or
366	366	search is unlawful, unless the resistance is justified under
367	367	Subsection (c);
368	368	(3) if the actor consented to the exact force used or
369	369	attempted by the other;
370	370	(4) if the actor provoked the other's use or attempted
371	371	use of unlawful force, unless:
372	372	(A) the actor abandons the encounter, or clearly
373	373	communicates to the other his intent to do so reasonably believing
374	374	he cannot safely abandon the encounter; and
375	375	(B) the other nevertheless continues or attempts
376	376	to use unlawful force against the actor; or
377	377	(5) if the actor sought an explanation from or
378	378	discussion with the other person concerning the actor's differences
379	379	with the other person while the actor was:
380	380	(A) carrying a weapon in violation of Section
381	381	46.02; [or]
382	382	(B) possessing or transporting a weapon in
383	383	violation of Section 46.05; or
384	384	(C) possessing an assault weapon in violation of
385	385	Section 46.055.
386	386	SECTION 14. This Act takes effect September 1, 2023.