JWW C.S.H.B. 2909 75(R)BILL ANALYSIS
PUBLIC SAFETY
C.S.H.B. 2909
By: Carter
4-7-97
Committee Report (Substituted)
BACKGROUND
In 1995 the Texas Legislature passed the Concealed Handgun Licensing bill
giving law-abiding Texans a procedure by which to license themselves to
carry a handgun. In the passage of the bill, some conforming language was
omitted and experience over two years has indicated some changes necessary
to orderly implementation of the law.
PURPOSE
The purpose of House Bill 2909 is to provide clean-up, conforming language
and technical corrections to the laws passed session dealing with the
licensing of carrying concealed handguns.
RULEMAKING AUTHORITY
The Texas Department of Public Safety is granted rulemaking authority in
Section 35(a), Article 4413(29ee), Revised Statutes, to develop a
procedure to allow residents of states without concealed carry laws to
obtain a concealed handgun license in Texas.
The Texas Alcoholic Beverage Commission is granted rulemaking authority to
adopt rules in Section 104.06, Alcoholic Beverage Code, to determine the
amount of income a business derives from the sale of alcohol, and to
require compliance among license and permit holders.
SECTION BY SECTION ANALYSIS
SECTION 1 Amends Section 2(a), Article 4413(29ee), with conforming
language for later changes in reciprocity and mental soundness
provisions.
SECTION 2 Amends Section 2, Article 4413(29ee), by adding language
regarding mental soundness of applicants to be used by the medical
advisory board of the Department of Public Safety. A list of diagnoses
is included. Depression was removed.
SECTION 3 Section 3(a)(5), Article 4413(29ee), Revised Statutes is amended
by stating that two sets of fingerprints may be taken by a person
employed by a law enforcement agency or a qualified private entity
designated by a law enforcement agency.
SECTION 4 Section 5(b), Article 4413(29ee), Revised Statutes, is amended
to add that the director's designee must complete a record check no
later than 60 days after the date the department receives application
for a license. The designee may conduct any further record check or
investigation the department deems necessary. The additional record
check must be complete within 180 days of receipt of the application
materials.
SECTION 5 Amends Section 6(b), Article 4413(29ee), Revised Statutes to add
conforming language from Section 4 and to require the department to
notify the applicant in writing that the department is unable to to make
a determination within the 60-day period and provide an estimation of
the amount of time necessary to make the determination.
SECTION 6 Section 6(g), Article 4413(29ee), is stricken to remove language
requiring presentation of a concealed license regardless if the license
holder is carrying a handgun at the time or not.
(h) Is amended to add language suspending the person's license if the
person fails or refuses to display the license and identification
required by Section 13.
(i) Is amended to add language making it an offense (Class B
misdemeanor) to fail or refuse to display the license and identification
as above after previously having had the license suspended for a
violation of that subsection.
SECTION 7 Section 12(a), Article 4413(29ee), is amended to conform with
language on suspension of a license in Section 8. A license is
suspended when a license holder is charged with a Class A or B
misdemeanor or an offense under Section 42.01, Penal Code or a felony.
SECTION 8 Section 13(a), Article 4413(29ee), is amended to allow
suspension of a license when the holder is charged with a Class A or
Class B misdemeanor or an offense under Section 42.01, Penal Code or a
felony.
(c) Licenses may be suspended under this section:
(1) for 30 days for reasons listed in Subsection (a)(3)(4)(5) except as
provided in (c)(3).
(2) for 90 days for failing to display a license as required by Section
6, except as provided in (c)(3).
(3) for not less than one year and not more than three years for
violations of Subsection (a) except for (a)(1) if the person's license
has been previously suspended for the same reason; or
(4) until dismissal of the charges, if the license is suspended under
(a)(1).
SECTION 9 Amends Section 17(9c), Article 4413(29ee), to allow the
department to deny a license on the written recommendation of an
instructor only if the department determines the recommendation is made
in good faith and is supported by a preponderance of the evidence.
This determination shall be make not later than the 45th day after the
department receives the recommendation. This determination period
extends the 60-period of Section 6(b) one day for each day necessary for
determination under this section.
SECTION 10 Sections 18(c) and (f), Article 4413(29ee), are amended to
allow the department to issue a qualified handgun instructor a license
to carry a concealed handgun at the time the instructor is certified for
a fee of $100. If the instructor's concealed handgun license is revoked,
suspended or denied, action can be taken against both the handgun
license and the instructor certification.
SECTION 11 Sections 31(a) and (c) are amended to add Chapter 74 (brew
pubs) of the Alcoholic Beverage Code to the list of permitted
businesses that derive 51 percent or more of their income from the sale
of alcohol and must display a sign that it is unlawful to carry a
handgun. Added language amends the sign to read that it is unlawful for
a person licensed under this article (concealed handgun license) to
carry a handgun on the premises. The sign must include the number "51"
printed in solid red at least five inches in height.
SECTION 12 Section 35(a), Article 4413(29ee), is amended to require the
department to establish a procedure to issue a license to a person from
a state that does not provide for the issuance of a license. The person
must meet eligibility requirement of this article other than residency
required in Section 2(a)(1). The procedure shall include a fee to
provide for the cost of a criminal history check and investigation.
(b) The department shall negotiate agreements with other states that
provide for licenses to carry a handgun that would recognize those
licenses if the department determines that:
(1) the eligibility requirements of the other states for background
checks meet or exceed requirements imposed by federal law for purchase
of a handgun.
(2) the other state recognizes Texas licenses.
SECTION 13 Section 11.041 is added to the Alcoholic Beverage Code "WARNING
SIGN REQUIRED."
(a) Requires permit holders who are not otherwise required to display a
sign under Section 31, Article 4413(29ee) shall display a sign giving
notice that it is illegal to carry a weapon on the premises unless it is
a concealed handgun of the same category the person is licensed to carry
under Article 4413(29ee).
(b) The sign must be at list 6 inches by 14 inches, must appear in
contrasting color, clearly displayed. A sign in another language may be
required by the Alcoholic Beverage Commission if a substantial portion
of the customers speak the other language.
SECTION 14 Section 11.61(e), Alcoholic Beverage Code is amended to add a
person who possesses a concealed handgun of the same category for which
the person is licensed to the list of exceptions to the subsection
providing for cancellation of a permit, unless the person is on the
premises of a business derived 51 percent or more of their income from
the sale of alcohol.
SECTION 15 Section 61.11, Alcoholic Beverage Code, "WARNING SIGN
REQUIRED" is amended to require license holders not otherwise required
to display a sign under Section 31, Article 4413(29ee) shall display a
sign giving notice that it is illegal to carry a weapon on the premises
unless it is a concealed handgun of the same category the person is
licensed to carry under Article 4413(29ee).
(b) The sign must be at list 6 inches by 14 inches, must appear in
contrasting color, clearly displayed. A sign in another language may be
required by the Alcoholic Beverage Commission if a substantial portion
of the customers speak the other language. Language in current law
requiring a sign to give notice that it is a felony offense to carry
weapons where alcoholic beverages are sold, served or consumed is
deleted.
SECTION 16 Section 61.71(f) Alcoholic Beverage Code, is amended to add a
person who possess a concealed handgun of the same category for which
the person is licensed to the list of exceptions to the subsection
providing for cancellation of an off-premise or on-premise license,
unless the person is on the premises of a business derived 51 percent or
more of their income from the sale of alcohol.
SECTION 17 Chapter 104, Alcoholic Beverage Code, is amended by adding
Section 104.06 to read as follows: MONITORING OF GROSS RECEIPTS
(a) The Alcoholic Beverage Commission shall determine on issuance of
renewal of a license or permit for on-premises consumption of alcohol
whether the owner will receive 51 percent or more of the gross receipts
from the sale or service of alcoholic beverages.
(b) The commission shall adopt rules for making a determination under
(a) and require the holder of the license or permit to provide
information necessary to make the determination.
(c) If the commission determines the business will receives 51 percent
or more of the gross receipts from the sale or service of alcoholic
beverages, the holder shall comply with the requirements of section 31,
Article 4413(29ee) and continue to comply until the commission
determines the 51 percent figure no longer applies.
SECTION 18 Section 12.092(b) Health and Safety Code, is amended to add
conforming language regarding the medical advisory board duties.
SECTION 19 Section 12.095(a), (c), and (d) Health and Safety Code, are
amended to add conforming language regarding the medical advisory board
duties.
SECTION 20 "TRESPASS BY HOLDER OF LICENSE TO CARRY CONCEALED HANDGUN."
Chapter 30.06 Penal Code is added.
(a) A license holder commits a trespass offense if the license holder
(1) carries a handgun authorized under Article 4413(29ee) onto property
of another person without consent and
(2) received notice that
(A) entry with a concealed handgun was forbidden; or
(B) remaining on the property with a concealed handgun was
forbidden and the license holder failed to depart.
(b) A person receives notice if the owner or someone with authority
provides notice by oral and written communication.
(c) Definitions
(d) An offense under this section is a Class A misdemeanor.
SECTION 21 Section 46.02 Penal Code, is amended by deleting all language
regarding defense to prosecution for intentionally, knowingly, or
recklessly carrying a handgun, illegal knife or club.
SECTION 22 Sections 46.03(b) and (c) Penal Code, are amended.
(b) Reference to peace officers is deleted from the defense to
prosecution language.
(c) Premises defined as the meaning assigned in Section 46.035.
SECTION 23 Section 46.035(b) Penal Code, is amended to add Chapter 74,
Alcoholic Beverage Code (brew pubs), and businesses deriving 51 or
more percent of income from the sale or service of on-premises alcoholic
beverages to the list of places where licensed handguns are prohibited.
SECTION 24 Section 46.15, Penal Code, is added to the former defense to
prosecution language to the nonapplicability statute.
(b) Section 46.02 does not apply to a person who:
(1) is in the actual discharge of duties as member of the armed forces
or guard at a penal institution
(2) is on the person's own premises unless the person is a security who
must comply with Subdivision 5.
(3) is traveling
(4) is engaged in hunting, fishing or other sporting activity or en
route to the activity.
(5) holds a security officer commission issued by the Texas Board of
Private Investigators and Private Security Agencies if
(A) the person is performing the duties of security officer or
traveling to or from the place of assignment and
(B) the weapon is in plain view.
(6) is carrying a concealed handgun and a valid licensed issued under
Article 4413(29ee)
(7) holds a security officer commission and a personal protection
authorization issued by Texas Board of Private Investigators and Private
Security Agencies and is providing personal protection
(8) holds an alcoholic beverage permit or license supervising the
operation of the permitted or licensed premised or is an employee of
the permit or license holder
(c) the carrying of clubs by noncommissioned security guards is not
prohibited by Section 46.02 if the guard has proper training.
Non-violent restraint means the use of reasonable force, not intended or
likely to inflict bodily harm.
(d) the carrying of a firearm or club by a security officer employed by
the adjutant general under Section 431.029, Government Code is not
prohibited by Section 46.02
SECTION 25 Section 1(10), Article 4413(29ee) (unsound mind) is repealed.
SECTION 26 Transition section relating to mental soundness.
SECTION 27 Transition section for revocations and suspensions due to
criminal offenses.
SECTION 28 DPS negotiations for reciprocal agreements shall commence not
later than December 1, 1997.
SECTION 29 Instructions to the Texas Alcoholic Beverage Commission to
initiate monitoring of percent of on-premises alcoholic beverage sales.
SECTION 30 Changes in law made by this Act to Penal Code Sections 46.02,
46.03 and 46.15 apply only to an offense committed on or after the
effective date of this Act. Current law is continued for offenses
committed prior to that date.
SECTION 31 Effective Date: September 1, 1997
SECTION 32 Emergency Clause
COMPARISON OF ORIGINAL TO SUBSTITUTE
SECTION 1 Section 2(a), Article 4413(29ee), Revised Statutes, is revised
by making reference to Section 35(a) of this article rather than Section
35(b).
SECTION 2 Removes depression from the list of medical conditions or
disorders which might disqualify a person from obtaining a concealed
handgun license.
SECTION 10 Qualified handgun instructors will pay an additional $100 fee
to receive a concealed handgun license in addition to the $100 fee for
certification as a licensed handgun instructor.
SECTION 11 (a) Adds that the Texas Alcohol Beverage Commission (TABC) will
determine if a business derives at least 51% of income from alcohol
sales. TABC will determine this under Section 104.06, Alcoholic
Beverage Code.
(b) This subsection is added.
SECTION 12 (a) Amended to allow long-term visitors from states without
concealed handgun laws may apply for a license in Texas subject to an
out of state background investigation. A fee for the extra
investigation will be collected in addition to the license fee.
Original version allowed holders of concealed handgun licenses issued
from other states to be issued a Texas license regardless of other state's
recognition of the Texas concealed handgun license.
(b) Authorizes DPS to negotiate with other concealed handgun states to
determine reciprocity agreements. Other states must require minimum
federal requirements for handgun license issuance in order to be
eligible for a reciprocity agreement.
SECTION 13 Section 11.041. "WARNING SIGN REQUIRED." is added.
SECTION 14 Previously SECTION 13.
SECTION 15 Replaces original SECTION 15. Amends Section 61.11, Alcoholic
Beverage Code.
SECTION 16 Replaces original SECTION 16. Amends 61.71(f), Alcoholic
Beverage Code.
SECTION 17 Replaces original SECTION 17. Adds Section 104.06.,
"MONITORING OF GROSS RECEIPTS", to Chapter 104, Alcoholic Beverage Code.
SECTION 18 Originally SECTION 15.
SECTION 19 Previously SECTION 16.Section 46.035(b) Penal Code is amended
adding conforming language to add brew pubs (Chapter 74) to the list of
prohibited places.
SECTION 20 Repeals Section 1(10) Article 4413(29ee) (Unsound Mind).
SECTION 21 Replaces the original SECTION 21. Amends Section 46.02, Penal
Code.
SECTION 22 Replaces original SECTION 22. Amends Section 46.03 (b)(c),
Penal Code.
SECTION 23 Replaces original SECTION 23. Amends Section 46.035(b), Penal
Code.
SECTION 24 Replaces original SECTION 24. Amends Section 46.15, Penal Code.
SECTION 25 Replaces original SECTION 25. Repeals Section 1(10), Article
4413(29ee), Revised Statutes.
SECTION 26 Replaces SECTION 26 with the original SECTION 21.
SECTION 27 Originally SECTION 22.
SECTION 28 This section is added to require the Department of Public
Safety comply with Section 35, Article 4413(29ee), Revised Statutes, no
later than December 1, 1997.
SECTION 29 This section is added to require the Texas Alcoholic Beverage
Commission to adopt rules required in Section 104.06, Alcoholic Beverage
Code, no later than October 1, 1997.
SECTION 30 Originally SECTION 24. Adds Section 46.02 and 46.15, Penal
Code, and removes Section 46.035.
SECTION 31 Originally SECTION 25.
SECTION 32 Originally SECTION 26.