Bill Text: TX SB1274 | 2023-2024 | 88th Legislature | Introduced

---

Bill Title: Relating to regulating certain firearm transfers, possession of certain firearms, and protective orders prohibiting possession of a firearm; creating criminal offenses; increasing criminal penalties.

Spectrum: Partisan Bill (Democrat 12-0)

Status: (Introduced - Dead) 2023-03-09 - Referred to State Affairs [SB1274 Detail]

Download: Texas-2023-SB1274-Introduced.html

---

88R4245 AJZ/JRR-F
By: Gutierrez, et al. S.B. No. 1274

A BILL TO BE ENTITLED
AN ACT
relating to regulating certain firearm transfers, possession of
certain firearms, and protective orders prohibiting possession of a
firearm; creating criminal offenses; increasing criminal
penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. GENERAL PROVISIONS
SECTION 1.01. SHORT TITLE. This Act shall be known as the
Robb Elementary Firearm Safety Act.
SECTION 1.02. PURPOSE. The purpose of this Act is to ensure
the State of Texas is meeting its responsibility to protect the
health and safety of all Texans by enacting common sense,
evidence-based firearm safety laws. Texans deserve to live free
from the threat and fear of firearm violence.
SECTION 1.03. FINDINGS. The legislature finds that:
(1) the State of Texas mourns the loss of 19 innocent
children and two teachers in a senseless attack on Robb Elementary
School in Uvalde, Texas, on May 24, 2022;
(2) the shooting at Robb Elementary School is the
second deadliest school shooting in the history of the United
States;
(3) the victims of the attack are Makenna Lee Elrod,
10; Layla Salazar, 11; Maranda Mathis, 11; Nevaeh Bravo, 10; Jose
Manuel Flores, Jr., 10; Xavier Lopez, 10; Tess Marie Mata, 10;
Rojelio Torres, 10; Eliahna "Ellie" Amyah Garcia, 9; Eliahna
A. Torres, 10; Annabell Guadalupe Rodriguez, 10; Jackie Cazares, 9;
Uziyah Garcia, 10; Jayce Carmelo Luevanos, 10; Maite Yuleana
Rodriguez, 10; Jailah Nicole Silguero, 10; Amerie Jo Garza, 10;
Alexandria "Lexi" Aniyah Rubio, 10; Alithia Ramirez, 10; Irma
Garcia, fourth grade teacher; and Eva Mireles, fourth grade
teacher;
(4) three of the ten deadliest mass shootings in
modern United States history have occurred in Texas in the past five
years;
(5) the following mass shootings have occurred in
Texas:
(A) 26 people were killed in Sutherland Springs,
Texas, in 2017;
(B) 23 people were killed in Killeen, Texas, in
1991;
(C) 23 people were killed in El Paso, Texas, in
2019;
(D) 21 people were killed in Uvalde, Texas, in
2022;
(E) 17 people were killed at The University of
Texas at Austin in 1966;
(F) 13 people were killed in Killeen, Texas, in
2009; and
(G) 10 people were killed in Santa Fe, Texas, in
2018;
(6) firearm homicide rates for children under 18 have
more than doubled in Texas between 2014 and 2020;
(7) from 2015 to 2020, Texas lost 572 children to
firearm homicides, more than any other state; and
(8) overall firearm homicide rates in Texas have
increased 66 percent from 2014 to 2020.
ARTICLE 2. UNLAWFUL POSSESSION AND TRANSFER OF CERTAIN ASSAULT
WEAPONS
SECTION 2.01. Chapter 46, Penal Code, is amended by adding
Section 46.055 to read as follows:
Sec. 46.055. UNLAWFUL POSSESSION OF ASSAULT WEAPON. (a) In
this section, "assault weapon" means:
(1) a semiautomatic centerfire rifle that has the
capacity to accept a detachable magazine and has:
(A) a pistol grip that protrudes conspicuously
beneath the action of the firearm;
(B) a folding or telescoping stock;
(C) a thumbhole stock;
(D) a second handgrip or a protruding grip that
can be held by the non-trigger hand;
(E) a flash suppressor; or
(F) a grenade launcher or flare launcher;
(2) a semiautomatic centerfire rifle that has a fixed
magazine that holds more than 10 rounds of ammunition;
(3) a semiautomatic centerfire rifle that has an
overall length of less than 30 inches;
(4) a semiautomatic shotgun that has the capacity to
accept a detachable magazine;
(5) a semiautomatic shotgun that has a folding or
telescoping stock and has:
(A) a thumbhole stock; or
(B) a second handgrip or a protruding grip that
can be held by the non-trigger hand;
(6) a semiautomatic pistol that has the capacity to
accept a detachable magazine and has:
(A) a second handgrip or a protruding grip that
can be held by the non-trigger hand;
(B) an ammunition magazine that attaches to the
pistol outside of the pistol grip;
(C) a threaded barrel capable of accepting a
flash suppressor, forward handgrip, or silencer; or
(D) a shroud that is attached to or partially or
completely encircles the barrel and that permits the shooter to
hold the firearm with the non-trigger hand without being burned;
(7) a semiautomatic pistol that has a fixed magazine
that holds more than 10 rounds of ammunition;
(8) a revolving cylinder shotgun; or
(9) a conversion kit, part, or combination of parts
from which an assault weapon can be assembled or with which a
firearm may be converted into a weapon described by Subdivision
(1), (2), (3), (4), (5), (6), (7), or (8).
(b) A person who is younger than 21 years of age commits an
offense if the person knowingly possesses an assault weapon.
(c) An offense under this section is a state jail felony.
(d) It is a defense to prosecution under this section that:
(1) the actor possessed the assault weapon for the
actual discharge of official duties as:
(A) a peace officer, as defined by Section 1.07;
or
(B) a member of the armed forces or state
military forces, as defined by Section 431.001, Government Code; or
(2) the actor lawfully possessed the assault weapon on
August 31, 2023.
(e) This section does not apply to an assault weapon that
has been rendered permanently inoperable.
(f) If conduct that constitutes an offense under this
section also constitutes an offense under any other law, the actor
may be prosecuted under this section, the other law, or both.
SECTION 2.02. Section 46.06, Penal Code, is amended by
amending Subsections (a), (c), and (d) and adding Subsections (c-1)
and (e) to read as follows:
(a) A person commits an offense if the person:
(1) sells, rents, leases, loans, or gives a handgun to
any person knowing that the person to whom the handgun is to be
delivered intends to use it unlawfully or in the commission of an
unlawful act;
(2) intentionally or knowingly sells, rents, leases,
or gives or offers to sell, rent, lease, or give:
(A) a [to any child younger than 18 years of age
any firearm,] club, [or] location-restricted knife, or firearm
other than an assault weapon to a person younger than 18 years of
age; or
(B) an assault weapon to a person younger than 21
years of age;
(3) intentionally, knowingly, or recklessly sells a
firearm or ammunition for a firearm to any person who is
intoxicated;
(4) knowingly sells a firearm or ammunition for a
firearm to any person who has been convicted of a felony before the
fifth anniversary of the later of the following dates:
(A) the person's release from confinement
following conviction of the felony; or
(B) the person's release from supervision under
community supervision, parole, or mandatory supervision following
conviction of the felony;
(5) sells, rents, leases, loans, or gives a firearm
[handgun] to any person knowing that an active protective order is
directed to the person to whom the firearm [handgun] is to be
delivered;
(6) knowingly purchases, rents, leases, or receives as
a loan or gift from another a firearm [handgun] while an active
protective order is directed to the actor; or
(7) while prohibited from possessing a firearm under
state or federal law, knowingly makes a material false statement on
a form that is:
(A) required by state or federal law for the
purchase, sale, or other transfer of a firearm; and
(B) submitted to a [licensed] firearms dealer
licensed under [, as defined by] 18 U.S.C. Section 923.
(c) It is an affirmative defense to prosecution under
Subsection (a)(2)(A) [(a)(2)] that the transfer was to a minor
whose parent or the person having legal custody of the minor had
given written permission for the sale or, if the transfer was other
than a sale, the parent or person having legal custody had given
effective consent.
(c-1) It is a defense to prosecution under Subsection
(a)(2)(B), (a)(5), or (a)(6) that the transfer was to a person who
provided evidence to the actor that the person is:
(1) a peace officer, as defined by Section 1.07; or
(2) a member of the armed forces or state military
forces, as defined by Section 431.001, Government Code.
(d) An offense under this section is a Class A misdemeanor,
except that:
(1) an offense under Subsection (a)(2)(A) [(a)(2)] is
a state jail felony if the weapon that is the subject of the offense
is a handgun; [and]
(2) an offense under Subsection (a)(2)(B) or (a)(7) is
a state jail felony; and
(3) an offense under Subsection (a)(5) or (a)(6) is a
state jail felony if the weapon that is the subject of the offense
is an assault weapon.
(e) If conduct that constitutes an offense under this
section also constitutes an offense under any other law, the actor
may be prosecuted under this section, the other law, or both.
SECTION 2.03. Section 46.06(b), Penal Code, is amended by
adding Subdivision (3) to read as follows:
(3) "Assault weapon" has the meaning assigned by
Section 46.055.
SECTION 2.04. The change in law made by this article applies
only to an offense committed on or after the effective date of this
Act. An offense committed before the effective date of this Act is
governed by the law in effect on the date the offense was committed,
and the former law is continued in effect for that purpose. For
purposes of this section, an offense was committed before the
effective date of this Act if any element of the offense occurred
before that date.
ARTICLE 3. REGULATION OF FIREARM TRANSFERS
SECTION 3.01. Title 6, Business & Commerce Code, is amended
by adding Chapter 205 to read as follows:
CHAPTER 205. REGULATION OF FIREARM TRANSFERS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 205.001. DEFINITIONS. In this chapter:
(1) "Firearm" has the meaning assigned by Section
46.01, Penal Code.
(2) "Licensed firearms dealer" means a person who is
licensed as a firearms dealer under 18 U.S.C. Section 923.
SUBCHAPTER B. NATIONAL INSTANT CRIMINAL BACKGROUND CHECK FOR
PRIVATE FIREARM TRANSFERS
Sec. 205.051. NATIONAL INSTANT CRIMINAL BACKGROUND CHECK
REQUIRED FOR PRIVATE TRANSFER OF FIREARM. A person may not sell or
otherwise transfer a firearm to another person unless:
(1) the person is a licensed firearms dealer;
(2) the person sells or transfers the firearm to a
licensed firearms dealer; or
(3) before the firearm is delivered to the person to
whom the firearm is being sold or transferred, the person selling or
transferring the firearm delivers the firearm to a licensed
firearms dealer to retain possession of the firearm until the
dealer conducts a national instant criminal background check in the
manner required by 18 U.S.C. Section 922 and verifies that the
person to whom the firearm is being sold or transferred may lawfully
possess a firearm.
Sec. 205.052. DUTIES OF LICENSED FIREARMS DEALER. (a) If a
licensed firearms dealer receives a firearm under Section
205.051(3), the dealer shall conduct a national instant criminal
background check in the manner required by 18 U.S.C. Section 922 to
verify that the person to whom the firearm is being sold or
transferred may lawfully possess a firearm.
(b) If a licensed firearms dealer determines that the person
to whom the firearm is being sold or transferred may not lawfully
possess a firearm, the dealer shall return the firearm to the person
selling or transferring the firearm.
(c) If a licensed firearms dealer determines that the person
to whom the firearm is being sold or transferred may lawfully
possess a firearm, the dealer shall transfer the firearm as
directed by the person selling or transferring the firearm.
(d) A licensed firearms dealer to whom a firearm is
delivered under Section 205.051(3) may collect a reasonable fee
from the person who is selling or transferring the firearm.
Sec. 205.053. EXCEPTION. This subchapter does not apply
to:
(1) a transfer of a firearm to a person by inheritance
or bequest on the death of the owner of the firearm; or
(2) a sale or other transfer of a firearm by the owner
of the firearm if the transferor and the transferee are related
within the third degree by consanguinity or within the second
degree by affinity as determined under Chapter 573, Government
Code.
Sec. 205.054. OFFENSE. (a) A person who violates this
subchapter commits an offense.
(b) An offense under this section is a Class A misdemeanor.
(c) If conduct that constitutes an offense under this
section also constitutes an offense under any other law, the actor
may be prosecuted under this section, the other law, or both.
SUBCHAPTER C. REQUIREMENTS FOR CERTAIN FIREARM SALES BY LICENSED
FIREARMS DEALERS
Sec. 205.101. WAITING PERIOD REQUIRED FOR CERTAIN SALES OF
FIREARMS; OFFENSE. (a) A licensed firearms dealer who sells a
firearm to a person in exchange for money or other consideration
commits an offense if the licensed firearms dealer delivers the
firearm to the person to whom the firearm is being sold before the
later of:
(1) the third business day after the date on which the
firearm was sold to the person; or
(2) the date on which the licensed firearms dealer
verifies, by conducting a national instant criminal background
check in the manner required by 18 U.S.C. Section 922, that the
person to whom the firearm is being sold may lawfully possess a
firearm.
(b) This section does not apply to the sale of a firearm to a
person who is:
(1) a peace officer, as defined by Section 1.07, Penal
Code; or
(2) a member of the armed forces or state military
forces, as defined by Section 431.001, Government Code.
(c) An offense under this section is a state jail felony.
(d) If conduct that constitutes an offense under this
section also constitutes an offense under any other law, the actor
may be prosecuted under this section, the other law, or both.
(e) A licensed firearms dealer shall make records of firearm
sales available for inspection by a law enforcement agency during
regular business hours.
ARTICLE 4. PROTECTIVE ORDERS
SECTION 4.01. Article 7B.005(a), Code of Criminal
Procedure, is amended to read as follows:
(a) In a protective order issued under this subchapter, the
court may:
(1) order the alleged offender to take action as
specified by the court that the court determines is necessary or
appropriate to prevent or reduce the likelihood of future harm to
the applicant or a member of the applicant's family or household; or
(2) prohibit the alleged offender from:
(A) communicating:
(i) directly or indirectly with the
applicant or any member of the applicant's family or household in a
threatening or harassing manner; or
(ii) in any manner with the applicant or any
member of the applicant's family or household except through the
applicant's attorney or a person appointed by the court, if the
court finds good cause for the prohibition;
(B) going to or near the residence, place of
employment or business, or child-care facility or school of the
applicant or any member of the applicant's family or household;
(C) engaging in conduct directed specifically
toward the applicant or any member of the applicant's family or
household, including following the person, that is reasonably
likely to harass, annoy, alarm, abuse, torment, or embarrass the
person; and
(D) possessing a firearm, unless the alleged
offender possesses the firearm for the actual discharge of the
alleged offender's official duties as:
(i) [is] a peace officer, as defined by
Section 1.07, Penal Code; or
(ii) a member of the armed forces or state
military forces, as defined by Section 431.001, Government Code[,
actively engaged in employment as a sworn, full-time paid employee
of a state agency or political subdivision].
SECTION 4.02. Article 7B.006(a), Code of Criminal
Procedure, is amended to read as follows:
(a) Each protective order issued under this subchapter,
including a temporary ex parte order, must contain the following
prominently displayed statements in boldfaced type, in capital
letters, or underlined:
"A PERSON WHO VIOLATES THIS ORDER MAY BE PUNISHED FOR
CONTEMPT OF COURT BY A FINE OF AS MUCH AS $500 OR BY CONFINEMENT IN
JAIL FOR AS LONG AS SIX MONTHS, OR BOTH."
"NO PERSON, INCLUDING A PERSON WHO IS PROTECTED BY THIS
ORDER, MAY GIVE PERMISSION TO ANYONE TO IGNORE OR VIOLATE ANY
PROVISION OF THIS ORDER. DURING THE TIME IN WHICH THIS ORDER IS
VALID, EVERY PROVISION OF THIS ORDER IS IN FULL FORCE AND EFFECT
UNLESS A COURT CHANGES THE ORDER."
"IT IS UNLAWFUL FOR ANY PERSON WHO IS SUBJECT TO A PROTECTIVE
ORDER TO POSSESS A FIREARM OR AMMUNITION, OTHER THAN A PERSON WHO
POSSESSES A FIREARM FOR THE ACTUAL DISCHARGE OF THE PERSON'S
OFFICIAL DUTIES AS A PEACE OFFICER, AS DEFINED BY SECTION 1.07,
PENAL CODE, OR AS A MEMBER OF THE ARMED FORCES OR STATE MILITARY
FORCES, AS DEFINED BY SECTION 431.001, GOVERNMENT CODE [ACTIVELY
ENGAGED IN EMPLOYMENT AS A SWORN, FULL-TIME PAID EMPLOYEE OF A STATE
AGENCY OR POLITICAL SUBDIVISION, WHO IS SUBJECT TO A PROTECTIVE
ORDER TO POSSESS A FIREARM OR AMMUNITION]."
SECTION 4.03. Chapter 7B, Code of Criminal Procedure, is
amended by adding Subchapter D to read as follows:
SUBCHAPTER D. EXTREME RISK PROTECTIVE ORDER
Art. 7B.151. DEFINITIONS. In this subchapter:
(1) "Bodily injury" and "serious bodily injury" have
the meanings assigned by Section 1.07, Penal Code.
(2) "Family," "family violence," and "household" have
the meanings assigned by Chapter 71, Family Code.
(3) "Firearm" has the meaning assigned by Section
46.01, Penal Code.
Art. 7B.152. APPLICATION FOR EXTREME RISK PROTECTIVE ORDER.
(a) An application for a protective order under this subchapter may
be filed by:
(1) a member of the respondent's family or household;
(2) a parent, guardian, or conservator of a person who
is:
(A) under 18 years of age; and
(B) a member of the respondent's family or
household; or
(3) a peace officer.
(b) An application must:
(1) include:
(A) detailed allegations, based on personal
knowledge of a person described by Subsection (a), regarding any
dangerous behavior or conduct exhibited by the respondent,
including any behavior or conduct related to the respondent's use
of firearms;
(B) information concerning the quantity, type,
and location of any firearms the applicant believes to be in the
respondent's possession or control, if any;
(C) any other relevant facts indicating a need
for a protective order under this subchapter; and
(D) a statement that the applicant believes the
respondent poses an immediate and present danger of causing bodily
injury, serious bodily injury, or death to any person, including
the respondent, as a result of the respondent's access to firearms;
and
(2) be signed by the applicant under an oath that, to
the knowledge and belief of the applicant, the facts and
circumstances contained in the application are true.
(c) An application for a protective order under this
subchapter may be filed in a district court, juvenile court having
the jurisdiction of a district court, statutory county court, or
constitutional county court in the county in which the applicant or
the respondent resides.
Art. 7B.153. CONFIDENTIALITY OF CERTAIN INFORMATION. On
receiving an application containing specific health information
concerning the respondent, the court shall order the clerk to:
(1) strike the information from the public records of
the court; and
(2) maintain a confidential record of the information
for use only by the court.
Art. 7B.154. TEMPORARY EX PARTE ORDER. (a) If the court
finds from the information contained in an application for a
protective order under this subchapter that there is reasonable
cause to believe that the respondent poses an immediate and present
danger of causing bodily injury, serious bodily injury, or death to
any person, including the respondent, as a result of the
respondent's access to firearms, the court, without further notice
to the respondent and without a hearing, may issue a temporary ex
parte order prohibiting the respondent from purchasing, owning,
possessing, or controlling a firearm.
(b) In a temporary ex parte order, the court may order the
respondent to:
(1) not later than 24 hours after the time the order is
issued, relinquish any firearms owned by or in the actual or
constructive possession or control of the respondent to a law
enforcement agency for holding in the manner provided by Article
18.192; and
(2) if applicable, surrender to the court the
respondent's license to carry a handgun issued under Subchapter H,
Chapter 411, Government Code.
Art. 7B.155. HEARING; ISSUANCE OF PROTECTIVE ORDER. (a)
Not later than the 14th day after the later of the date an
application is filed or the date a temporary ex parte order is
issued, the court shall hold a hearing on the issuance of the
protective order.
(b) The court shall provide personal notice of the hearing
to the respondent.
(c) In determining whether to issue a protective order under
this article, the court:
(1) shall consider:
(A) any history of threats or acts of violence by
the respondent directed at any person, including the respondent;
(B) any history of the respondent using,
attempting to use, or threatening to use physical force against
another person;
(C) any recent violation by the respondent of an
order issued:
(i) under another provision of Chapter 7B
or under Article 17.292;
(ii) under Section 6.504 or Chapter 85,
Family Code;
(iii) under Chapter 83, Family Code, if the
temporary ex parte order has been served on the respondent; or
(iv) by another jurisdiction as provided by
Chapter 88, Family Code;
(D) any arrest or conviction of the respondent
for:
(i) an offense under Section 42.072, Penal
Code; or
(ii) an offense involving violence,
including family violence;
(E) any conviction of the respondent for an
offense under Section 42.09, 42.091, or 42.092, Penal Code; and
(F) evidence related to the respondent's current
or recent abuse of a controlled substance or alcohol, not including
any evidence of previous treatment for or recovery from abusing a
controlled substance or alcohol; and
(2) may consider any other relevant factor including:
(A) any previous violation by the respondent of
an order described by Subdivision (1)(C); and
(B) evidence regarding the respondent's recent
acquisition of firearms, ammunition, or other deadly weapons.
(d) At the close of the hearing, if the court finds by clear
and convincing evidence that the respondent poses an immediate and
present danger of causing bodily injury, serious bodily injury, or
death to any person, including the respondent, as a result of the
respondent's access to firearms, the court shall issue a protective
order that includes a statement of the required finding.
(e) If the court does not make the finding described by
Subsection (d), the court shall, as applicable, rescind any
temporary ex parte order issued under Article 7B.154 and return the
respondent's license to carry a handgun.
Art. 7B.156. CONTENTS OF PROTECTIVE ORDER. In a protective
order issued under Article 7B.155, the court shall:
(1) prohibit the person who is subject to the order
from purchasing, owning, possessing, or controlling a firearm for
the duration of the order;
(2) order the person to:
(A) not later than 24 hours after the time the
order is issued, relinquish any firearms owned by or in the actual
or constructive possession or control of the person to a law
enforcement agency for holding in the manner provided by Article
18.192; and
(B) if applicable, surrender to the court the
person's license to carry a handgun issued under Subchapter H,
Chapter 411, Government Code; and
(3) suspend a license to carry a handgun issued under
Subchapter H, Chapter 411, Government Code, that is held by the
person.
Art. 7B.157. DURATION OF PROTECTIVE ORDER. (a) A
protective order issued under Article 7B.155 is effective until the
first anniversary of the date the order was issued.
(b) The court may renew a protective order issued under
Article 7B.155 for a period not to exceed one year after the order's
original expiration date. Before renewing the order the court must
hold a hearing after providing personal notice of the hearing to the
person who is the subject of the order.
(c) A person who is the subject of a protective order may
file a motion not earlier than the 91st day after the date on which
the order was initially issued or renewed, as applicable,
requesting that the court review the order and determine whether
there is a continuing need for the order. After a hearing on the
motion, if the court fails to make the finding that there is no
continuing need for the order, the order remains in effect until the
date the order expires as provided by this article.
(d) At a hearing to renew or rescind a protective order
under this article, the court shall consider the factors described
by Article 7B.155(c).
Art. 7B.158. NOTICE TO DEPARTMENT OF PUBLIC SAFETY. (a)
Not later than 24 hours after the time a protective order is issued
under Article 7B.155, the clerk of the issuing court shall provide
the following to the Department of Public Safety:
(1) the complete name, race, and sex of the person who
is the subject of the order;
(2) any known identifying number of the person,
including a social security number, driver's license number, or
state identification number;
(3) the person's date of birth;
(4) if surrendered to the court, the person's license
to carry a handgun issued under Subchapter H, Chapter 411,
Government Code; and
(5) a copy of the order suspending the person's license
to carry a handgun under Subchapter H, Chapter 411, Government
Code.
(b) On receipt of an order suspending a license to carry a
handgun, the department shall:
(1) record the suspension of the license in the
records of the department;
(2) report the suspension to local law enforcement
agencies, as appropriate; and
(3) if the license was not surrendered to the court,
demand surrender of the suspended license from the license holder.
(c) Not later than the 30th day after the date the
protective order is rescinded or expires under Article 7B.157, the
clerk of the issuing court shall notify the Department of Public
Safety of the rescission or expiration, as applicable.
Art. 7B.159. APPLICATION OF OTHER LAW. To the extent
applicable, except as otherwise provided by this subchapter, Title
4, Family Code, applies to a protective order issued under this
subchapter.
SECTION 4.04. Articles 17.292(c) and (g), Code of Criminal
Procedure, are amended to read as follows:
(c) The magistrate in the order for emergency protection may
prohibit the arrested party from:
(1) committing:
(A) family violence or an assault on the person
protected under the order; or
(B) an act in furtherance of an offense under
Section 20A.02 or 42.072, Penal Code;
(2) communicating:
(A) directly with a member of the family or
household or with the person protected under the order in a
threatening or harassing manner;
(B) a threat through any person to a member of the
family or household or to the person protected under the order; or
(C) if the magistrate finds good cause, in any
manner with a person protected under the order or a member of the
family or household of a person protected under the order, except
through the party's attorney or a person appointed by the court;
(3) going to or near:
(A) the residence, place of employment, or
business of a member of the family or household or of the person
protected under the order; or
(B) the residence, child care facility, or school
where a child protected under the order resides or attends; or
(4) possessing a firearm, unless the person possesses
the firearm for the actual discharge of the person's official
duties as:
(A) [is] a peace officer, as defined by Section
1.07, Penal Code; or
(B) a member of the armed forces or state
military forces, as defined by Section 431.001, Government Code [,
actively engaged in employment as a sworn, full-time paid employee
of a state agency or political subdivision].
(g) An order for emergency protection issued under this
article must contain the following statements printed in bold-face
type or in capital letters:
"A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACT PROHIBITED
BY THE ORDER MAY BE PUNISHABLE BY A FINE OF AS MUCH AS $4,000 OR BY
CONFINEMENT IN JAIL FOR AS LONG AS ONE YEAR OR BY BOTH. AN ACT THAT
RESULTS IN A SEPARATE OFFENSE MAY BE PROSECUTED AS A SEPARATE
MISDEMEANOR OR FELONY OFFENSE, AS APPLICABLE, IN ADDITION TO A
VIOLATION OF THIS ORDER. IF THE ACT IS PROSECUTED AS A SEPARATE
FELONY OFFENSE, IT IS PUNISHABLE BY CONFINEMENT IN PRISON FOR AT
LEAST TWO YEARS. THE POSSESSION OF A FIREARM BY A PERSON, OTHER
THAN A PERSON WHO POSSESSES A FIREARM FOR THE ACTUAL DISCHARGE OF
THE PERSON'S OFFICIAL DUTIES AS A PEACE OFFICER, AS DEFINED BY
SECTION 1.07, PENAL CODE, OR AS A MEMBER OF THE ARMED FORCES OR
STATE MILITARY FORCES, AS DEFINED BY SECTION 431.001, GOVERNMENT
CODE [ACTIVELY ENGAGED IN EMPLOYMENT AS A SWORN, FULL-TIME PAID
EMPLOYEE OF A STATE AGENCY OR POLITICAL SUBDIVISION], WHO IS
SUBJECT TO THIS ORDER MAY BE PROSECUTED AS A SEPARATE OFFENSE
PUNISHABLE BY CONFINEMENT OR IMPRISONMENT.
"NO PERSON, INCLUDING A PERSON WHO IS PROTECTED BY THIS
ORDER, MAY GIVE PERMISSION TO ANYONE TO IGNORE OR VIOLATE ANY
PROVISION OF THIS ORDER. DURING THE TIME IN WHICH THIS ORDER IS
VALID, EVERY PROVISION OF THIS ORDER IS IN FULL FORCE AND EFFECT
UNLESS A COURT CHANGES THE ORDER."
SECTION 4.05. Chapter 18, Code of Criminal Procedure, is
amended by adding Article 18.192 to read as follows:
Art. 18.192. HOLDING AND DISPOSITION OF FIREARM
RELINQUISHED UNDER EXTREME RISK PROTECTIVE ORDER. (a) A law
enforcement officer who takes possession of a firearm from a person
who is the subject of an extreme risk protective order issued under
Subchapter D, Chapter 7B, shall immediately provide the person a
written copy of the receipt for the firearm and a written notice of
the procedure for the return of a firearm under this article.
(b) Not later than the seventh day after the date a firearm
subject to disposition under this article is received, the law
enforcement agency holding the firearm shall notify the court that
issued the extreme risk protective order that the person who is the
subject of the order has relinquished the firearm.
(c) Not later than the 30th day after the date the extreme
risk protective order is rescinded or expires, the clerk of the
court shall notify the law enforcement agency of the rescission or
expiration.
(d) Not later than the 30th day after the date the law
enforcement agency holding a firearm subject to disposition under
this article receives the notice described by Subsection (c), the
law enforcement agency shall conduct a check of state and national
criminal history record information to verify whether the person
may lawfully possess a firearm under 18 U.S.C. Section 922(g) and
under the law of this state.
(e) If the check conducted under Subsection (d) verifies
that the person may lawfully possess a firearm, the law enforcement
agency shall provide to the person by certified mail written notice
stating that the firearm may be returned to the person if the person
submits a written request before the 121st day after the date of the
notice.
(f) An unclaimed firearm that is received under an extreme
risk protective order issued under Subchapter D, Chapter 7B, may
not be destroyed or forfeited to the state.
(g) The law enforcement agency holding the firearm may
provide for the firearm to be sold by a firearms dealer licensed
under 18 U.S.C. Section 923 if:
(1) the check conducted under Subsection (d) shows
that the person may not lawfully possess a firearm; or
(2) the notice is provided under Subsection (e) and
the person does not submit, before the 121st day after the date of
the notice, a written request for the return of the firearm.
(h) The proceeds from the sale of a firearm under this
article shall be paid to the owner of the seized firearm, less the
cost of administering this article with respect to the firearm.
SECTION 4.06. Section 85.022(b), Family Code, is amended to
read as follows:
(b) In a protective order, the court may prohibit the person
found to have committed family violence from:
(1) committing family violence;
(2) communicating:
(A) directly with a person protected by an order
or a member of the family or household of a person protected by an
order, in a threatening or harassing manner;
(B) a threat through any person to a person
protected by an order or a member of the family or household of a
person protected by an order; and
(C) if the court finds good cause, in any manner
with a person protected by an order or a member of the family or
household of a person protected by an order, except through the
party's attorney or a person appointed by the court;
(3) going to or near the residence or place of
employment or business of a person protected by an order or a member
of the family or household of a person protected by an order;
(4) going to or near the residence, child-care
facility, or school a child protected under the order normally
attends or in which the child normally resides;
(5) engaging in conduct directed specifically toward a
person who is a person protected by an order or a member of the
family or household of a person protected by an order, including
following the person, that is reasonably likely to harass, annoy,
alarm, abuse, torment, or embarrass the person;
(6) possessing a firearm, unless the person possesses
the firearm for the actual discharge of the person's official
duties as:
(A) [is] a peace officer, as defined by Section
1.07, Penal Code; or
(B) a member of the armed forces or state
military forces, as defined by Section 431.001, Government Code [,
actively engaged in employment as a sworn, full-time paid employee
of a state agency or political subdivision]; and
(7) harming, threatening, or interfering with the
care, custody, or control of a pet, companion animal, or assistance
animal, as defined by Section 121.002, Human Resources Code, that
is possessed by or is in the actual or constructive care of a person
protected by an order or by a member of the family or household of a
person protected by an order.
SECTION 4.07. Section 85.026(a), Family Code, is amended to
read as follows:
(a) Each protective order issued under this subtitle,
including a temporary ex parte order, must contain the following
prominently displayed statements in boldfaced type, capital
letters, or underlined:
"A PERSON WHO VIOLATES THIS ORDER MAY BE PUNISHED FOR
CONTEMPT OF COURT BY A FINE OF AS MUCH AS $500 OR BY CONFINEMENT IN
JAIL FOR AS LONG AS SIX MONTHS, OR BOTH."
"NO PERSON, INCLUDING A PERSON WHO IS PROTECTED BY THIS
ORDER, MAY GIVE PERMISSION TO ANYONE TO IGNORE OR VIOLATE ANY
PROVISION OF THIS ORDER. DURING THE TIME IN WHICH THIS ORDER IS
VALID, EVERY PROVISION OF THIS ORDER IS IN FULL FORCE AND EFFECT
UNLESS A COURT CHANGES THE ORDER."
"IT IS UNLAWFUL FOR ANY PERSON WHO IS SUBJECT TO A PROTECTIVE
ORDER TO POSSESS A FIREARM OR AMMUNITION, OTHER THAN A PERSON WHO
POSSESSES A FIREARM FOR THE ACTUAL DISCHARGE OF THE PERSON'S
OFFICIAL DUTIES AS A PEACE OFFICER, AS DEFINED BY SECTION 1.07,
PENAL CODE, OR AS A MEMBER OF THE ARMED FORCES OR STATE MILITARY
FORCES, AS DEFINED BY SECTION 431.001, GOVERNMENT CODE [ACTIVELY
ENGAGED IN EMPLOYMENT AS A SWORN, FULL-TIME PAID EMPLOYEE OF A STATE
AGENCY OR POLITICAL SUBDIVISION, WHO IS SUBJECT TO A PROTECTIVE
ORDER TO POSSESS A FIREARM OR AMMUNITION]."
"IF A PERSON SUBJECT TO A PROTECTIVE ORDER IS RELEASED FROM
CONFINEMENT OR IMPRISONMENT FOLLOWING THE DATE THE ORDER WOULD HAVE
EXPIRED, OR IF THE ORDER WOULD HAVE EXPIRED NOT LATER THAN THE FIRST
ANNIVERSARY OF THE DATE THE PERSON IS RELEASED FROM CONFINEMENT OR
IMPRISONMENT, THE ORDER IS AUTOMATICALLY EXTENDED TO EXPIRE ON:
"(1) THE FIRST ANNIVERSARY OF THE DATE THE PERSON IS
RELEASED, IF THE PERSON WAS SENTENCED TO CONFINEMENT OR
IMPRISONMENT FOR A TERM OF MORE THAN FIVE YEARS; OR
"(2) THE SECOND ANNIVERSARY OF THE DATE THE PERSON IS
RELEASED, IF THE PERSON WAS SENTENCED TO CONFINEMENT OR
IMPRISONMENT FOR A TERM OF FIVE YEARS OR LESS."
"A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACT PROHIBITED
BY THE ORDER MAY BE PUNISHABLE BY A FINE OF AS MUCH AS $4,000 OR BY
CONFINEMENT IN JAIL FOR AS LONG AS ONE YEAR, OR BOTH. AN ACT THAT
RESULTS IN FAMILY VIOLENCE MAY BE PROSECUTED AS A SEPARATE
MISDEMEANOR OR FELONY OFFENSE. IF THE ACT IS PROSECUTED AS A
SEPARATE FELONY OFFENSE, IT IS PUNISHABLE BY CONFINEMENT IN PRISON
FOR AT LEAST TWO YEARS."
SECTION 4.08. Subchapter D, Chapter 411, Government Code,
is amended by adding Section 411.0522 to read as follows:
Sec. 411.0522. INFORMATION CONCERNING EXTREME RISK
PROTECTIVE ORDER. (a) The department by rule shall establish a
procedure to provide information concerning a person who is the
subject of an extreme risk protective order to the Federal Bureau of
Investigation for inclusion in the National Instant Criminal
Background Check System.
(b) The procedure must require the department to provide any
information received under Article 7B.158, Code of Criminal
Procedure, to the Federal Bureau of Investigation not later than 24
hours after the time the department received the information.
SECTION 4.09. Section 411.172(a), Government Code, is
amended to read as follows:
(a) A person is eligible for a license to carry a handgun if
the person:
(1) is a legal resident of this state for the six-month
period preceding the date of application under this subchapter or
is otherwise eligible for a license under Section 411.173(a);
(2) is at least 21 years of age;
(3) has not been convicted of a felony;
(4) is not charged with the commission of a Class A or
Class B misdemeanor or equivalent offense, or of an offense under
Section 42.01, Penal Code, or equivalent offense, or of a felony
under an information or indictment;
(5) is not a fugitive from justice for a felony or a
Class A or Class B misdemeanor or equivalent offense;
(6) is not a chemically dependent person;
(7) is not incapable of exercising sound judgment with
respect to the proper use and storage of a handgun;
(8) has not, in the five years preceding the date of
application, been convicted of a Class A or Class B misdemeanor or
equivalent offense or of an offense under Section 42.01, Penal
Code, or equivalent offense;
(9) is fully qualified under applicable federal and
state law to purchase a handgun;
(10) has not been finally determined to be delinquent
in making a child support payment administered or collected by the
attorney general;
(11) has not been finally determined to be delinquent
in the payment of a tax or other money collected by the comptroller,
the tax collector of a political subdivision of the state, or any
agency or subdivision of the state;
(12) is not currently:
(A) restricted under a court protective order,
including an extreme risk protective order issued under Subchapter
D, Chapter 7B, Code of Criminal Procedure; or
(B) subject to a restraining order affecting the
spousal relationship, other than a restraining order solely
affecting property interests;
(13) has not, in the 10 years preceding the date of
application, been adjudicated as having engaged in delinquent
conduct violating a penal law of the grade of felony; and
(14) has not made any material misrepresentation, or
failed to disclose any material fact, in an application submitted
pursuant to Section 411.174.
SECTION 4.10. Sections 411.187(a) and (c), Government Code,
are amended to read as follows:
(a) The department shall suspend a license under this
section if the license holder:
(1) is charged with the commission of a Class A or
Class B misdemeanor or equivalent offense, or of an offense under
Section 42.01, Penal Code, or equivalent offense, or of a felony
under an information or indictment;
(2) fails to notify the department of a change of
address, name, or status as required by Section 411.181;
(3) commits an act of family violence and is the
subject of an active protective order rendered under Title 4,
Family Code; [or]
(4) is arrested for an offense involving family
violence or an offense under Section 42.072, Penal Code, and is the
subject of an order for emergency protection issued under Article
17.292, Code of Criminal Procedure; or
(5) is the subject of an active protective order
issued under Subchapter D, Chapter 7B, Code of Criminal Procedure.
(c) The department shall suspend a license under this
section:
(1) for 30 days, if the person's license is subject to
suspension for a reason listed in Subsection (a)(2)[, (3), or (4),
except as provided by Subdivision (2)];
(2) [for not less than one year and not more than three
years, if the person's license:
[(A) is subject to suspension for a reason listed
in Subsection (a), other than the reason listed in Subsection
(a)(1); and
[(B) has been previously suspended for the same
reason;
[(3)] until dismissal of the charges, if the person's
license is subject to suspension for the reason listed in
Subsection (a)(1); or
(3) [(4)] for the duration of or the period specified
by:
(A) the protective order issued under Title 4,
Family Code, if the person's license is subject to suspension for
the reason listed in Subsection (a)(3) [(a)(5)]; [or]
(B) the order for emergency protection issued
under Article 17.292, Code of Criminal Procedure, if the person's
license is subject to suspension for the reason listed in
Subsection (a)(4); or
(C) the extreme risk protective order issued
under Subchapter D, Chapter 7B, Code of Criminal Procedure, if the
person's license is subject to suspension for the reason listed in
Subsection (a)(5) [(a)(6)].
SECTION 4.11. Chapter 37, Penal Code, is amended by adding
Section 37.083 to read as follows:
Sec. 37.083. FALSE REPORT REGARDING REQUEST FOR EXTREME
RISK PROTECTIVE ORDER. (a) A person commits an offense if, with
intent to deceive, the person makes a statement that the person
knows to be false to a peace officer relating to a request that the
officer file an application for an extreme risk protective order
under Subchapter D, Chapter 7B, Code of Criminal Procedure.
(b) An offense under this section is a Class B misdemeanor.
(c) If conduct that constitutes an offense under this
section also constitutes an offense under another law, the actor
may be prosecuted under this section, the other law, or both.
SECTION 4.12. Section 46.04, Penal Code, is amended by
amending Subsections (c) and (e) and adding Subsections (c-1) and
(c-2) to read as follows:
(c) A person [, other than a peace officer, as defined by
Section 1.07, actively engaged in employment as a sworn, full-time
paid employee of a state agency or political subdivision,] who is
subject to an order issued under Section 6.504 or Chapter 85, Family
Code, under Article 17.292 or Subchapter A, Chapter 7B, Code of
Criminal Procedure, or by another jurisdiction as provided by
Chapter 88, Family Code, commits an offense if the person possesses
a firearm after receiving notice of the order and before expiration
of the order.
(c-1) It is a defense to prosecution under Subsection (c)
that the actor possessed the firearm for the actual discharge of
official duties as:
(1) a peace officer, as defined by Section 1.07; or
(2) a member of the armed forces or state military
forces, as defined by Section 431.001, Government Code.
(c-2) A person commits an offense if, after receiving notice
that the person is subject to an extreme risk protective order
issued under Subchapter D, Chapter 7B, Code of Criminal Procedure,
and before rescission or expiration of the order, the person
purchases, owns, possesses, or controls a firearm in violation of
the order.
(e) An offense under Subsection (a) is a felony of the third
degree. An offense under Subsection (a-1), (b), [or] (c), or (c-2)
is a Class A misdemeanor.
SECTION 4.13. Not later than October 1, 2023, the
Department of Public Safety shall adopt rules as required by
Section 411.0522, Government Code, as added by this article.
SECTION 4.14. The change in law made by this article
relating to the contents of a protective order or a magistrate's
order for emergency protection applies to an order issued on or
after the effective date of this Act. An order issued before that
date is governed by the law as it existed immediately before the
effective date of this Act, and the former law is continued in
effect for that purpose.
SECTION 4.15. Section 46.04, Penal Code, as amended by this
article, applies only to an offense committed on or after the
effective date of this Act. An offense committed before the
effective date of this Act is governed by the law in effect on the
date the offense was committed, and the former law is continued in
effect for that purpose. For purposes of this section, an offense
was committed before the effective date of this Act if any element
of the offense occurred before that date.
ARTICLE 5. EFFECTIVE DATE
SECTION 5.01. This Act takes effect September 1, 2023.