Texas 2023 - 88th 1st C.S.

Texas House Bill HB9 Compare Versions

Version 1 (Old)

Version 2 (New)

Old	New	Differences
1	1	By: Reynolds H.B. No. 9
2	2
3	3
4	4	A BILL TO BE ENTITLED
5	5	AN ACT
6	6	relating to extreme risk protective orders; creating criminal
7	7	offenses.
8	8	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
9	9	SECTION 1. Chapter 7B, Code of Criminal Procedure, is
10	10	amended by adding Subchapter D to read as follows:
11	11	SUBCHAPTER D. EXTREME RISK PROTECTIVE ORDER
12	12	Art. 7B.151. DEFINITIONS. In this subchapter:
13	13	(1) "Bodily injury" and "serious bodily injury" have
14	14	the meanings assigned by Section 1.07, Penal Code.
15	15	(2) "Family," "family violence," and "household" have
16	16	the meanings assigned by Chapter 71, Family Code.
17	17	(3) "Firearm" has the meaning assigned by Section
18	18	46.01, Penal Code.
19	19	Art. 7B.152. APPLICATION FOR EXTREME RISK PROTECTIVE ORDER.
20	20	(a) An application for a protective order under this subchapter may
21	21	be filed by:
22	22	(1) a member of the respondent's family or household;
23	23	(2) a parent, guardian, or conservator of a person who
24	24	is:
25	25	(A) under 18 years of age; and
26	26	(B) a member of the respondent's family or
27	27	household; or
28	28	(3) a peace officer.
29	29	(b) An application must:
30	30	(1) include:
31	31	(A) detailed allegations, based on personal
32	32	knowledge of a person described by Subsection (a), regarding any
33	33	dangerous behavior or conduct exhibited by the respondent,
34	34	including any behavior or conduct related to the respondent's use
35	35	of firearms;
36	36	(B) information concerning the quantity, type,
37	37	and location of any firearms the applicant believes to be in the
38	38	respondent's possession or control, if any;
39	39	(C) any other relevant facts indicating a need
40	40	for a protective order under this subchapter; and
41	41	(D) a statement that the applicant believes the
42	42	respondent poses an immediate and present danger of causing bodily
43	43	injury, serious bodily injury, or death to any person, including
44	44	the respondent, as a result of the respondent's access to firearms;
45	45	and
46	46	(2) be signed by the applicant under an oath that, to
47	47	the knowledge and belief of the applicant, the facts and
48	48	circumstances contained in the application are true.
49	49	(c) An application for a protective order under this
50	50	subchapter may be filed in a district court, juvenile court having
51	51	the jurisdiction of a district court, statutory county court, or
52	52	constitutional county court in the county in which the applicant or
53	53	the respondent resides.
54	54	Art. 7B.153. CONFIDENTIALITY OF CERTAIN INFORMATION. On
55	55	receiving an application containing specific health information
56	56	concerning the respondent, the court shall order the clerk to:
57	57	(1) strike the information from the public records of
58	58	the court; and
59	59	(2) maintain a confidential record of the information
60	60	for use only by the court.
61	61	Art. 7B.154. TEMPORARY EX PARTE ORDER. (a) If the court
62	62	finds from the information contained in an application for a
63	63	protective order under this subchapter that there is reasonable
64	64	cause to believe that the respondent poses an immediate and present
65	65	danger of causing bodily injury, serious bodily injury, or death to
66	66	any person, including the respondent, as a result of the
67	67	respondent's access to firearms, the court, without further notice
68	68	to the respondent and without a hearing, may issue a temporary ex
69	69	parte order prohibiting the respondent from purchasing, owning,
70	70	possessing, or controlling a firearm.
71	71	(b) In a temporary ex parte order, the court may order the
72	72	respondent to:
73	73	(1) not later than 24 hours after the time the order is
74	74	issued, relinquish any firearms owned by or in the actual or
75	75	constructive possession or control of the respondent to a law
76	76	enforcement agency for holding in the manner provided by Article
77	77	18.192; and
78	78	(2) if applicable, surrender to the court the
79	79	respondent's license to carry a handgun issued under Subchapter H,
80	80	Chapter 411, Government Code.
81	81	Art. 7B.155. HEARING; ISSUANCE OF PROTECTIVE ORDER. (a)
82	82	Not later than the 14th day after the later of the date an
83	83	application is filed or the date a temporary ex parte order is
84	84	issued, the court shall hold a hearing on the issuance of the
85	85	protective order.
86	86	(b) The court shall provide personal notice of the hearing
87	87	to the respondent.
88	88	(c) In determining whether to issue a protective order under
89	89	this article, the court:
90	90	(1) shall consider:
91	91	(A) any history of threats or acts of violence by
92	92	the respondent directed at any person, including the respondent;
93	93	(B) any history of the respondent using,
94	94	attempting to use, or threatening to use physical force against
95	95	another person;
96	96	(C) any recent violation by the respondent of an
97	97	order issued:
98	98	(i) under another provision of Chapter 7B
99	99	or under Article 17.292;
100	100	(ii) under Section 6.504 or Chapter 85,
101	101	Family Code;
102	102	(iii) under Chapter 83, Family Code, if the
103	103	temporary ex parte order has been served on the respondent; or
104	104	(iv) by another jurisdiction as provided by
105	105	Chapter 88, Family Code;
106	106	(D) any arrest or conviction of the respondent
107	107	for:
108	108	(i) an offense under Section 42.072, Penal
109	109	Code; or
110	110	(ii) an offense involving violence,
111	111	including family violence;
112	112	(E) any conviction of the respondent for an
113	113	offense under Section 42.09, 42.091, or 42.092, Penal Code; and
114	114	(F) evidence related to the respondent's current
115	115	or recent abuse of a controlled substance or alcohol, not including
116	116	any evidence of previous treatment for or recovery from abusing a
117	117	controlled substance or alcohol; and
118	118	(2) may consider any other relevant factor including:
119	119	(A) any previous violation by the respondent of
120	120	an order described by Subdivision (1)(C); and
121	121	(B) evidence regarding the respondent's recent
122	122	acquisition of firearms, ammunition, or other deadly weapons.
123	123	(d) At the close of the hearing, if the court finds by clear
124	124	and convincing evidence that the respondent poses an immediate and
125	125	present danger of causing bodily injury, serious bodily injury, or
126	126	death to any person, including the respondent, as a result of the
127	127	respondent's access to firearms, the court shall issue a protective
128	128	order that includes a statement of the required finding.
129	129	(e) If the court does not make the finding described by
130	130	Subsection (d), the court shall, as applicable, rescind any
131	131	temporary ex parte order issued under Article 7B.154 and return the
132	132	respondent's license to carry a handgun.
133	133	Art. 7B.156. CONTENTS OF PROTECTIVE ORDER. In a protective
134	134	order issued under Article 7B.155, the court shall:
135	135	(1) prohibit the person who is subject to the order
136	136	from purchasing, owning, possessing, or controlling a firearm for
137	137	the duration of the order;
138	138	(2) order the person to:
139	139	(A) not later than 24 hours after the time the
140	140	order is issued, relinquish any firearms owned by or in the actual
141	141	or constructive possession or control of the person to a law
142	142	enforcement agency for holding in the manner provided by Article
143	143	18.192; and
144	144	(B) if applicable, surrender to the court the
145	145	person's license to carry a handgun issued under Subchapter H,
146	146	Chapter 411, Government Code; and
147	147	(3) suspend a license to carry a handgun issued under
148	148	Subchapter H, Chapter 411, Government Code, that is held by the
149	149	person.
150	150	Art. 7B.157. DURATION OF PROTECTIVE ORDER. (a) A
151	151	protective order issued under Article 7B.155 is effective until the
152	152	first anniversary of the date the order was issued.
153	153	(b) The court may renew a protective order issued under
154	154	Article 7B.155 for a period not to exceed one year after the order's
155	155	original expiration date. Before renewing the order the court must
156	156	hold a hearing after providing personal notice of the hearing to the
157	157	person who is the subject of the order.
158	158	(c) A person who is the subject of a protective order may
159	159	file a motion not earlier than the 91st day after the date on which
160	160	the order was initially issued or renewed, as applicable,
161	161	requesting that the court review the order and determine whether
162	162	there is a continuing need for the order. After a hearing on the
163	163	motion, if the court fails to make the finding that there is no
164	164	continuing need for the order, the order remains in effect until the
165	165	date the order expires as provided by this article.
166	166	(d) At a hearing to renew or rescind a protective order
167	167	under this article, the court shall consider the factors described
168	168	by Article 7B.155(c).
169	169	Art. 7B.158. NOTICE TO DEPARTMENT OF PUBLIC SAFETY. (a)
170	170	Not later than 24 hours after the time a protective order is issued
171	171	under Article 7B.155, the clerk of the issuing court shall provide
172	172	the following to the Department of Public Safety:
173	173	(1) the complete name, race, and sex of the person who
174	174	is the subject of the order;
175	175	(2) any known identifying number of the person,
176	176	including a social security number, driver's license number, or
177	177	state identification number;
178	178	(3) the person's date of birth;
179	179	(4) if surrendered to the court, the person's license
180	180	to carry a handgun issued under Subchapter H, Chapter 411,
181	181	Government Code; and
182	182	(5) a copy of the order suspending the person's license
183	183	to carry a handgun under Subchapter H, Chapter 411, Government
184	184	Code.
185	185	(b) On receipt of an order suspending a license to carry a
186	186	handgun, the department shall:
187	187	(1) record the suspension of the license in the
188	188	records of the department;
189	189	(2) report the suspension to local law enforcement
190	190	agencies, as appropriate; and
191	191	(3) if the license was not surrendered to the court,
192	192	demand surrender of the suspended license from the license holder.
193	193	(c) Not later than the 30th day after the date the
194	194	protective order is rescinded or expires under Article 7B.157, the
195	195	clerk of the issuing court shall notify the Department of Public
196	196	Safety of the rescission or expiration, as applicable.
197	197	Art. 7B.159. APPLICATION OF OTHER LAW. To the extent
198	198	applicable, except as otherwise provided by this subchapter, Title
199	199	4, Family Code, applies to a protective order issued under this
200	200	subchapter.
201	201	SECTION 2. Chapter 18, Code of Criminal Procedure, is
202	202	amended by adding Article 18.192 to read as follows:
203	203	Art. 18.192. HOLDING AND DISPOSITION OF FIREARM
204	204	RELINQUISHED UNDER EXTREME RISK PROTECTIVE ORDER. (a) A law
205	205	enforcement officer who takes possession of a firearm from a person
206	206	who is the subject of an extreme risk protective order issued under
207	207	Subchapter D, Chapter 7B, shall immediately provide the person a
208	208	written copy of the receipt for the firearm and a written notice of
209	209	the procedure for the return of a firearm under this article.
210	210	(b) Not later than the seventh day after the date a firearm
211	211	subject to disposition under this article is received, the law
212	212	enforcement agency holding the firearm shall notify the court that
213	213	issued the extreme risk protective order that the person who is the
214	214	subject of the order has relinquished the firearm.
215	215	(c) Not later than the 30th day after the date the extreme
216	216	risk protective order is rescinded or expires, the clerk of the
217	217	court shall notify the law enforcement agency of the rescission or
218	218	expiration.
219	219	(d) Not later than the 30th day after the date the law
220	220	enforcement agency holding a firearm subject to disposition under
221	221	this article receives the notice described by Subsection (c), the
222	222	law enforcement agency shall conduct a check of state and national
223	223	criminal history record information to verify whether the person
224	224	may lawfully possess a firearm under 18 U.S.C. Section 922(g) and
225	225	under the law of this state.
226	226	(e) If the check conducted under Subsection (d) verifies
227	227	that the person may lawfully possess a firearm, the law enforcement
228	228	agency shall provide to the person by certified mail written notice
229	229	stating that the firearm may be returned to the person if the person
230	230	submits a written request before the 121st day after the date of the
231	231	notice.
232	232	(f) An unclaimed firearm that is received under an extreme
233	233	risk protective order issued under Subchapter D, Chapter 7B, may
234	234	not be destroyed or forfeited to the state.
235	235	(g) The law enforcement agency holding the firearm may
236	236	provide for the firearm to be sold by a firearms dealer licensed
237	237	under 18 U.S.C. Section 923 if:
238	238	(1) the check conducted under Subsection (d) shows
239	239	that the person may not lawfully possess a firearm; or
240	240	(2) the notice is provided under Subsection (e) and
241	241	the person does not submit, before the 121st day after the date of
242	242	the notice, a written request for the return of the firearm.
243	243	(h) The proceeds from the sale of a firearm under this
244	244	article shall be paid to the owner of the seized firearm, less the
245	245	cost of administering this article with respect to the firearm.
246	246	SECTION 3. Subchapter D, Chapter 411, Government Code, is
247	247	amended by adding Section 411.0522 to read as follows:
248	248	Sec. 411.0522. INFORMATION CONCERNING EXTREME RISK
249	249	PROTECTIVE ORDER. (a) The department by rule shall establish a
250	250	procedure to provide information concerning a person who is the
251	251	subject of an extreme risk protective order to the Federal Bureau of
252	252	Investigation for inclusion in the National Instant Criminal
253	253	Background Check System.
254	254	(b) The procedure must require the department to provide any
255	255	information received under Article 7B.158, Code of Criminal
256	256	Procedure, to the Federal Bureau of Investigation not later than 24
257	257	hours after the time the department received the information.
258	258	SECTION 4. Section 411.172(a), Government Code, is amended
259	259	to read as follows:
260	260	(a) A person is eligible for a license to carry a handgun if
261	261	the person:
262	262	(1) is a legal resident of this state for the six-month
263	263	period preceding the date of application under this subchapter or
264	264	is otherwise eligible for a license under Section 411.173(a);
265	265	(2) is at least 21 years of age;
266	266	(3) has not been convicted of a felony;
267	267	(4) is not charged with the commission of a Class A or
268	268	Class B misdemeanor or equivalent offense, or of an offense under
269	269	Section 42.01, Penal Code, or equivalent offense, or of a felony
270	270	under an information or indictment;
271	271	(5) is not a fugitive from justice for a felony or a
272	272	Class A or Class B misdemeanor or equivalent offense;
273	273	(6) is not a chemically dependent person;
274	274	(7) is not incapable of exercising sound judgment with
275	275	respect to the proper use and storage of a handgun;
276	276	(8) has not, in the five years preceding the date of
277	277	application, been convicted of a Class A or Class B misdemeanor or
278	278	equivalent offense or of an offense under Section 42.01, Penal
279	279	Code, or equivalent offense;
280	280	(9) is fully qualified under applicable federal and
281	281	state law to purchase a handgun;
282	282	(10) has not been finally determined to be delinquent
283	283	in making a child support payment administered or collected by the
284	284	attorney general;
285	285	(11) has not been finally determined to be delinquent
286	286	in the payment of a tax or other money collected by the comptroller,
287	287	the tax collector of a political subdivision of the state, or any
288	288	agency or subdivision of the state;
289	289	(12) is not currently:
290	290	(A) restricted under a court protective order,
291	291	including an extreme risk protective order issued under Subchapter
292	292	D, Chapter 7B, Code of Criminal Procedure; or
293	293	(B) subject to a restraining order affecting the
294	294	spousal relationship, other than a restraining order solely
295	295	affecting property interests;
296	296	(13) has not, in the 10 years preceding the date of
297	297	application, been adjudicated as having engaged in delinquent
298	298	conduct violating a penal law of the grade of felony; and
299	299	(14) has not made any material misrepresentation, or
300	300	failed to disclose any material fact, in an application submitted
301	301	pursuant to Section 411.174.
302	302	SECTION 5. Sections 411.187(a) and (c), Government Code,
303	303	are amended to read as follows:
304	304	(a) The department shall suspend a license under this
305	305	section if the license holder:
306	306	(1) is charged with the commission of a Class A or
307	307	Class B misdemeanor or equivalent offense, or of an offense under
308	308	Section 42.01, Penal Code, or equivalent offense, or of a felony
309	309	under an information or indictment;
310	310	(2) fails to notify the department of a change of
311	311	address, name, or status as required by Section 411.181;
312	312	(3) commits an act of family violence and is the
313	313	subject of an active protective order rendered under Title 4,
314	314	Family Code; [or]
315	315	(4) is arrested for an offense involving family
316	316	violence or an offense under Section 42.072, Penal Code, and is the
317	317	subject of an order for emergency protection issued under Article
318	318	17.292, Code of Criminal Procedure; or
319	319	(5) is the subject of an active protective order
320	320	issued under Subchapter D, Chapter 7B, Code of Criminal Procedure.
321	321	(c) The department shall suspend a license under this
322	322	section:
323	323	(1) for 30 days, if the person's license is subject to
324	324	suspension for a reason listed in Subsection (a)(2)[, (3), or (4),
325	325	except as provided by Subdivision (2)];
326	326	(2) [for not less than one year and not more than three
327	327	years, if the person's license:
328	328	[(A) is subject to suspension for a reason listed
329	329	in Subsection (a), other than the reason listed in Subsection
330	330	(a)(1); and
331	331	[(B) has been previously suspended for the same
332	332	reason;
333	333	[(3)] until dismissal of the charges, if the person's
334	334	license is subject to suspension for the reason listed in
335	335	Subsection (a)(1); or
336	336	(3) [(4)] for the duration of or the period specified
337	337	by:
338	338	(A) the protective order issued under Title 4,
339	339	Family Code, if the person's license is subject to suspension for
340	340	the reason listed in Subsection (a)(3) [(a)(5)]; [or]
341	341	(B) the order for emergency protection issued
342	342	under Article 17.292, Code of Criminal Procedure, if the person's
343	343	license is subject to suspension for the reason listed in
344	344	Subsection (a)(4); or
345	345	(C) the extreme risk protective order issued
346	346	under Subchapter D, Chapter 7B, Code of Criminal Procedure, if the
347	347	person's license is subject to suspension for the reason listed in
348	348	Subsection (a)(5) [(a)(6)].
349	349	SECTION 6. Chapter 37, Penal Code, is amended by adding
350	350	Section 37.083 to read as follows:
351	351	Sec. 37.083. FALSE REPORT REGARDING REQUEST FOR EXTREME
352	352	RISK PROTECTIVE ORDER. (a) A person commits an offense if, with
353	353	intent to deceive, the person makes a statement that the person
354	354	knows to be false to a peace officer relating to a request that the
355	355	officer file an application for an extreme risk protective order
356	356	under Subchapter D, Chapter 7B, Code of Criminal Procedure.
357	357	(b) An offense under this section is a Class B misdemeanor.
358	358	(c) If conduct that constitutes an offense under this
359	359	section also constitutes an offense under another law, the actor
360	360	may be prosecuted under this section, the other law, or both.
361	361	SECTION 7. Section 46.04, Penal Code, is amended by adding
362	362	Subsection (c-1) and amending Subsection (e) to read as follows:
363	363	(c-1) A person commits an offense if, after receiving notice
364	364	that the person is subject to an extreme risk protective order
365	365	issued under Subchapter D, Chapter 7B, Code of Criminal Procedure,
366	366	and before rescission or expiration of the order, the person
367	367	purchases, owns, possesses, or controls a firearm in violation of
368	368	the order.
369	369	(e) An offense under Subsection (a) is a felony of the third
370	370	degree. An offense under Subsection (a-1), (b), [or] (c), or (c-1)
371	371	is a Class A misdemeanor.
372	372	SECTION 8. Not later than October 1, 2023, the Department of
373	373	Public Safety shall adopt rules as required by Section 411.0522,
374	374	Government Code, as added by this Act.
375	375	SECTION 9. This Act takes effect September 1, 2023.