Bill Text: TX SB5 | 2023 | 88th Legislature 2nd Special Session | 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 1-0)
Status: (Introduced - Dead) 2023-06-28 - Filed [SB5 Detail]
Download: Texas-2023-SB5-Introduced.html
| By: Gutierrez | S.B. No. 5 | |
|
|
||
|
|
||
| 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 [ |
||
| 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 | ||
| [ |
||
| directed to the person to whom the firearm [ |
||
| delivered; | ||
| (6) knowingly purchases, rents, leases, or receives as | ||
| a loan or gift from another a firearm [ |
||
| 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 under [ |
||
| (c) It is an affirmative defense to prosecution under | ||
| Subsection (a)(2)(A) [ |
||
| 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 state jail felony if the weapon that is the subject of the offense | ||
| is a handgun; [ |
||
| (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) [ |
||
| 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[ |
||
| 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 [ |
||
| 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) [ |
||
| 1.07, Penal Code; or | ||
| (B) a member of the armed forces or state | ||
| military forces, as defined by Section 431.001, Government Code [ |
||
| (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 [ |
||
| 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) [ |
||
| 1.07, Penal Code; or | ||
| (B) a member of the armed forces or state | ||
| military forces, as defined by Section 431.001, Government Code [ |
||
| (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 [ |
||
| "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; [ |
||
| (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)[ |
||
| (2) [ |
||
| [ |
||
| [ |
||
| [ |
||
| license is subject to suspension for the reason listed in | ||
| Subsection (a)(1); or | ||
| (3) [ |
||
| 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) [ |
||
| (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) [ |
||
| 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 [ |
||
| 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), [ |
||
| 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. | ||
