1-1 By: Carter, et al. (Senate Sponsor - Patterson) H.B. No. 2909
1-2 (In the Senate - Received from the House May 15, 1997;
1-3 May 16, 1997, read first time and referred to Committee on Criminal
1-4 Justice; May 18, 1997, reported favorably by the following vote:
1-5 Yeas 5, Nays 2; May 18, 1997, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to persons eligible for a license to carry a concealed
1-9 handgun, to the rights and duties of license holders, and to
1-10 certain offenses involving weapons.
1-11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-12 SECTION 1. Section 2(a), Article 4413(29ee), Revised
1-13 Statutes, is amended to read as follows:
1-14 (a) A person is eligible for a license to carry a concealed
1-15 handgun if the person:
1-16 (1) is a legal resident of this state for the
1-17 six-month period preceding the date of application under this
1-18 article or is otherwise eligible for a license under Section 35(a)
1-19 of this article;
1-20 (2) is at least 21 years of age;
1-21 (3) has not been convicted of a felony;
1-22 (4) is not charged with the commission of a Class A or
1-23 Class B misdemeanor or an offense under Section 42.01, Penal Code,
1-24 or of a felony under an information or indictment;
1-25 (5) is not a fugitive from justice for a felony or a
1-26 Class A or Class B misdemeanor;
1-27 (6) is not a chemically dependent person;
1-28 (7) is not incapable of exercising sound judgment with
1-29 respect to the proper use and storage of a handgun [a person of
1-30 unsound mind];
1-31 (8) has not, in the five years preceding the date of
1-32 application, been convicted of a Class A or Class B misdemeanor or
1-33 an offense under Section 42.01, Penal Code;
1-34 (9) is fully qualified under applicable federal and
1-35 state law to purchase a handgun;
1-36 (10) has not been finally determined to be delinquent
1-37 in making a child support payment administered or collected by the
1-38 attorney general;
1-39 (11) has not been finally determined to be delinquent
1-40 in the payment of a tax or other money collected by the
1-41 comptroller, state treasurer, tax collector of a political
1-42 subdivision of the state, Texas Alcoholic Beverage Commission, or
1-43 any other agency or subdivision of the state;
1-44 (12) has not been finally determined to be in default
1-45 on a loan made under Chapter 57, Education Code;
1-46 (13) is not currently restricted under a court
1-47 protective order or subject to a restraining order affecting the
1-48 spousal relationship, not including a restraining order solely
1-49 affecting property interests;
1-50 (14) has not, in the 10 years preceding the date of
1-51 application, been adjudicated as having engaged in delinquent
1-52 conduct violating a penal law of the grade of felony; and
1-53 (15) has not made any material misrepresentation, or
1-54 failed to disclose any material fact, in an application submitted
1-55 pursuant to Section 3 of this article or in a request for
1-56 application submitted pursuant to Section 4 of this article.
1-57 SECTION 2. Section 2, Article 4413(29ee), Revised Statutes,
1-58 is amended by adding Subsection (d) to read as follows:
1-59 (d)(1) For purposes of Subsection (a)(7) of this section, a
1-60 person is incapable of exercising sound judgment with respect to
1-61 the proper use and storage of a handgun if:
1-62 (A) the person has been diagnosed by a licensed
1-63 physician as suffering from a psychiatric disorder or condition
1-64 that causes or is likely to cause substantial impairment in
2-1 judgment, mood, perception, impulse control, or intellectual
2-2 ability;
2-3 (B) the person suffers from a psychiatric
2-4 disorder or condition described by Paragraph (A) of this
2-5 subdivision that:
2-6 (i) is in remission but is reasonably
2-7 likely to redevelop at a future time; or
2-8 (ii) requires continuous medical treatment
2-9 to avoid redevelopment;
2-10 (C) the person has been diagnosed by a licensed
2-11 physician or declared by a court to be incompetent to manage the
2-12 person's own affairs; or
2-13 (D) the person has entered in any criminal
2-14 proceeding a plea of not guilty by reason of insanity.
2-15 (2) The following are evidence that a person has a
2-16 psychiatric disorder or condition described by Subdivision (1)(A)
2-17 of this subsection:
2-18 (A) involuntary psychiatric hospitalization in
2-19 the preceding five-year period;
2-20 (B) psychiatric hospitalization in the preceding
2-21 two-year period;
2-22 (C) inpatient or residential substance abuse
2-23 treatment in the preceding five-year period;
2-24 (D) diagnosis in the preceding five-year period
2-25 by a licensed physician that the person is dependent on alcohol, a
2-26 controlled substance, or a similar substance; or
2-27 (E) diagnosis at any time by a licensed
2-28 physician that the person suffers or has suffered from a
2-29 psychiatric disorder or condition consisting of or relating to:
2-30 (i) schizophrenia or delusional disorder;
2-31 (ii) bipolar disorder;
2-32 (iii) chronic dementia, whether caused by
2-33 illness, brain defect, or brain injury;
2-34 (iv) dissociative identity disorder;
2-35 (v) intermittent explosive disorder; or
2-36 (vi) antisocial personality disorder.
2-37 (3) Notwithstanding Subdivision (1), a person who has
2-38 previously been diagnosed as suffering from a psychiatric disorder
2-39 or condition described by Subdivision (1) or listed in Subdivision
2-40 (2) is not because of that disorder or condition incapable of
2-41 exercising sound judgment with respect to the proper use and
2-42 storage of a handgun if the person provides the department with a
2-43 certificate from a licensed physician stating that the psychiatric
2-44 disorder or condition is in remission and is not reasonably likely
2-45 to develop at a future time.
2-46 SECTION 3. Section 3(a), Article 4413(29ee), Revised
2-47 Statutes, is amended to read as follows:
2-48 (a) An applicant for a license to carry a concealed handgun
2-49 must submit to the director's designee described by Section 5 of
2-50 this article:
2-51 (1) a completed application on a form provided by the
2-52 department that requires only the information listed in Subsection
2-53 (b) of this section;
2-54 (2) two recent color passport photographs of the
2-55 applicant;
2-56 (3) a certified copy of the applicant's birth
2-57 certificate or certified proof of age;
2-58 (4) proof of residency in this state;
2-59 (5) two complete sets of legible and classifiable
2-60 fingerprints of the applicant taken by a person [employed by a law
2-61 enforcement agency who is] appropriately trained in recording
2-62 fingerprints who is employed by a law enforcement agency or by a
2-63 private entity designated by a law enforcement agency as an entity
2-64 qualified to take fingerprints of an applicant for a license under
2-65 this article;
2-66 (6) a nonrefundable application and license fee of
2-67 $140 paid to the department;
2-68 (7) a handgun proficiency certificate described by
2-69 Section 17 of this article;
3-1 (8) an affidavit signed by the applicant stating that
3-2 the applicant:
3-3 (A) has read and understands each provision of
3-4 this article that creates an offense under the laws of this state
3-5 and each provision of the laws of this state related to use of
3-6 deadly force; and
3-7 (B) fulfills all the eligibility requirements
3-8 listed under Section 2 of this article; and
3-9 (9) a form executed by the applicant that authorizes
3-10 the director to make an inquiry into any noncriminal history
3-11 records that are necessary to determine the applicant's eligibility
3-12 for a license under Section 2(a) of this article.
3-13 SECTION 4. Section 5(b), Article 4413(29ee), Revised
3-14 Statutes, is amended to read as follows:
3-15 (b) The director's designee as needed shall conduct an
3-16 additional criminal history record check of the applicant and an
3-17 investigation of the applicant's local official records to verify
3-18 the accuracy of the application materials. The scope of the record
3-19 check and the investigation are at the sole discretion of the
3-20 department, except that the director's designee shall complete the
3-21 record check and investigation not later than 60 days after the
3-22 date the department receives the application materials. The
3-23 department shall send a fingerprint card to the Federal Bureau of
3-24 Investigation for a national criminal history check of the
3-25 applicant. On completion of the investigation, the director's
3-26 designee shall return all materials and the result of the
3-27 investigation to the appropriate division of the department at its
3-28 Austin headquarters. The director's designee may submit to the
3-29 appropriate division of the department, at the department's Austin
3-30 headquarters, along with the application materials a written
3-31 recommendation for disapproval of the application, accompanied by
3-32 an affidavit stating personal knowledge or naming persons with
3-33 personal knowledge of a ground for denial under Section 2 of this
3-34 article. The director's designee in the appropriate geographical
3-35 area may also submit the application and the recommendation that
3-36 the license be issued. On receipt at the department's Austin
3-37 headquarters of the application materials and the result of the
3-38 investigation by the director's designee, the department shall
3-39 conduct any further record check or investigation the department
3-40 determines is necessary in the event that a question exists with
3-41 respect to the accuracy of the application materials or the
3-42 eligibility of the applicant, except that the department shall
3-43 complete the record check and investigation not later than 180 days
3-44 after the date the department receives the application materials
3-45 from the applicant.
3-46 SECTION 5. Section 6(b), Article 4413(29ee), Revised
3-47 Statutes, is amended to read as follows:
3-48 (b)[(1)] Not [After January 1, 1997, the department, not]
3-49 later than the 60th day after the date of the receipt by the
3-50 director's designee of the completed application materials, the
3-51 department shall:
3-52 (1) [(A)] issue the license; [or]
3-53 (2) [(B)] notify the applicant in writing that the
3-54 application was denied:
3-55 (A) [(i)] on the grounds that the applicant
3-56 failed to qualify under the criteria listed in Section 2 of this
3-57 article;
3-58 (B) [(ii)] based on the affidavit of the
3-59 director's designee submitted to the department under Section 5(b)
3-60 of this article; or
3-61 (C) [(iii)] based on the affidavit of the
3-62 qualified handgun instructor submitted to the department under
3-63 Section 17(c) of this article; or
3-64 (3) notify the applicant in writing that the
3-65 department is unable to make a determination regarding the issuance
3-66 or denial of a license to the applicant within the 60-day period
3-67 prescribed by this subsection and include in that notification an
3-68 explanation of the reason for the inability and an estimation of
3-69 the amount of time the department will need to make the
4-1 determination.
4-2 [(2) Between the effective date of this article and
4-3 December 31, 1996, the department shall perform the duties set out
4-4 in this subsection not later than the 90th day after the date of
4-5 the receipt by the director's designee of the completed application
4-6 materials.]
4-7 SECTION 6. Sections 6(g), (h), and (i), Article 4413(29ee),
4-8 Revised Statutes, are amended and relettered to read as follows:
4-9 (g) [On a demand by a magistrate or a peace officer that a
4-10 license holder display the license holder's handgun license, the
4-11 license holder shall display both the license and the license
4-12 holder's driver's license or identification certificate issued by
4-13 the department.]
4-14 [(h)] If a license holder is carrying a handgun on or about
4-15 the license holder's person when a magistrate or a peace officer
4-16 demands that the license holder display identification, the license
4-17 holder shall display both the license holder's driver's license or
4-18 identification certificate issued by the department and the license
4-19 holder's handgun license. A person who fails or refuses to display
4-20 the license and identification as required by this subsection is
4-21 subject to suspension of the person's license as provided by
4-22 Section 13 of this article.
4-23 (h) [(i)] A person commits an offense if the person fails or
4-24 refuses to display the license and identification as required by
4-25 Subsection (g) [or (h)] of this section after previously having had
4-26 the person's license suspended for a violation of that subsection.
4-27 An offense under this subsection is a Class B misdemeanor.
4-28 SECTION 7. Section 12(a), Article 4413(29ee), Revised
4-29 Statutes, is amended to read as follows:
4-30 (a) A license may be revoked under this section if the
4-31 license holder:
4-32 (1) was not entitled to the license at the time it was
4-33 issued;
4-34 (2) gave false information on the application;
4-35 (3) subsequently becomes ineligible for a license
4-36 under Section 2 of this article, unless the sole basis for the
4-37 ineligibility is that the license holder is charged with the
4-38 commission of a Class A or Class B misdemeanor or an offense under
4-39 Section 42.01, Penal Code, or of a felony under an information or
4-40 indictment; [or]
4-41 (4) is convicted of an offense under Section 46.035,
4-42 Penal Code; or
4-43 (5) is determined by the department to have engaged in
4-44 conduct constituting a reason to suspend a license listed in
4-45 Section 13(a) of this article after the person's license has been
4-46 previously suspended twice for the same reason.
4-47 SECTION 8. Sections 13(a) and (c), Article 4413(29ee),
4-48 Revised Statutes, are amended to read as follows:
4-49 (a) A license may be suspended under this section if the
4-50 license holder:
4-51 (1) is charged with the commission of a Class A or
4-52 Class B misdemeanor or an offense [convicted of disorderly conduct
4-53 punishable as a Class C misdemeanor] under Section 42.01, Penal
4-54 Code, or of a felony under an information or indictment;
4-55 (2) fails to display a license as required by Section
4-56 6 of this article;
4-57 (3) fails to notify the department of a change of
4-58 address or name as required by Section 8 of this article;
4-59 (4) carries a concealed handgun under the authority of
4-60 this article of a different category than the license holder is
4-61 licensed to carry; or
4-62 (5) [has been charged by indictment with the
4-63 commission of an offense that would make the license holder
4-64 ineligible for a license on conviction; or]
4-65 [(6)] fails to return a previously issued license
4-66 after a license is modified as required by Section 10(d) of this
4-67 article.
4-68 (c) A license may be suspended under this section:
4-69 (1) for 30 days, if the person's license is subject to
5-1 suspension for a reason listed in Subsection (a)(3), (4), or (5) of
5-2 this section, except as provided by Subdivision (3) of this
5-3 subsection;
5-4 (2) for 90 days, if the person's license is subject to
5-5 suspension for a reason listed in Subsection (a)(2) of this
5-6 section, except as provided by Subdivision (3) of this subsection;
5-7 (3) for not less than one year and not more than three
5-8 years if the person's license is subject to suspension for a reason
5-9 listed in Subsection (a) of this section, other than the reason
5-10 listed in Subsection (a)(1) of this section, and the person's
5-11 license has been previously suspended for the same reason; or
5-12 (4) until dismissal of the charges, if the person's
5-13 license is subject to suspension for the reason listed in
5-14 Subsection (a)(1) of this section.
5-15 SECTION 9. Section 17(c), Article 4413(29ee), Revised
5-16 Statutes, is amended to read as follows:
5-17 (c) A qualified handgun instructor may submit to the
5-18 department a written recommendation for disapproval of the
5-19 application for a license, renewal, or modification of a license,
5-20 accompanied by an affidavit stating personal knowledge or naming
5-21 persons with personal knowledge of facts that lead the instructor
5-22 to believe that an applicant is not qualified for handgun
5-23 proficiency certification. The department may use a written
5-24 recommendation submitted under this subsection as the basis for
5-25 denial of a license only if the department determines that the
5-26 recommendation is made in good faith and is supported by a
5-27 preponderance of the evidence. The department shall make a
5-28 determination under this subsection not later than the 45th day
5-29 after the date the department receives the written recommendation.
5-30 The 60-day period in which the department must take action under
5-31 Section 6(b) of this article is extended one day for each day a
5-32 determination is pending under this subsection.
5-33 SECTION 10. Sections 18(c) and (f), Article 4413(29ee),
5-34 Revised Statutes, are amended to read as follows:
5-35 (c) The department shall provide training to an individual
5-36 who applies for certification as a qualified handgun instructor.
5-37 An applicant shall pay a fee of $100 to the department for the
5-38 training. An applicant must take and successfully complete the
5-39 training offered by the department and pay the training fee before
5-40 the department may certify the applicant as a qualified handgun
5-41 instructor. The department shall issue [waive the requirements
5-42 regarding a handgun proficiency certification under Section 17 of
5-43 this article for an applicant for] a license to carry a concealed
5-44 handgun under the authority of this article to any person who is
5-45 certified as a qualified handgun instructor and who pays to the
5-46 department a fee of $100 in addition to [takes and successfully
5-47 completes training under this subsection and pays] the training
5-48 fee. The department by rule may prorate or waive the training fee
5-49 for an employee of another governmental entity.
5-50 (f) If the department determines that a reason exists to
5-51 revoke, suspend, or deny a license to carry a concealed handgun
5-52 with respect to a person who is a qualified handgun instructor or
5-53 an applicant for certification as a qualified handgun instructor,
5-54 the department shall take that action against the person's license
5-55 to carry a concealed handgun, if the person is an applicant for or
5-56 the holder of such a license, and the person's certification as a
5-57 qualified handgun instructor [regardless of whether the person has
5-58 a license issued under this article to carry a concealed handgun].
5-59 SECTION 11. Section 31, Article 4413(29ee), Revised
5-60 Statutes, is amended by amending Subsections (a) and (c) and adding
5-61 Subsections (d) and (e) to read as follows:
5-62 (a) A business that has a permit or license issued under
5-63 Chapter 25, 28, 32, [or] 69, or 74, Alcoholic Beverage Code, and
5-64 that derives 51 percent or more of its income from the sale of
5-65 alcoholic beverages for on-premises consumption as determined by
5-66 the Texas Alcoholic Beverage Commission under Section 104.06,
5-67 Alcoholic Beverage Code, shall prominently display at each entrance
5-68 to the business premises a sign that complies with the requirements
5-69 of Subsection (c) of this section.
6-1 (c) The sign required under Subsections (a) and (b) of this
6-2 section must give notice in both English and Spanish that it is
6-3 unlawful for a person licensed under this article to carry a
6-4 handgun on the premises. The sign must appear in contrasting
6-5 colors with block letters at least one inch in height and must
6-6 include on its face the number "51" printed in solid red at least
6-7 five inches in height. The sign shall be displayed in a
6-8 conspicuous manner clearly visible to the public.
6-9 (d) A business that has a permit or license issued under the
6-10 Alcoholic Beverage Code and that is not required to display a sign
6-11 under this section may be required to display a sign under Section
6-12 11.041 or Section 61.11, Alcoholic Beverage Code.
6-13 (e) This section does not apply to a business that has a
6-14 food and beverage certificate issued under the Alcoholic Beverage
6-15 Code.
6-16 SECTION 12. Section 35, Article 4413(29ee), Revised
6-17 Statutes, is amended to read as follows:
6-18 Sec. 35. NONRESIDENT [RECIPROCAL] LICENSE. (a) The
6-19 department by rule shall establish a procedure for a person who is
6-20 a legal resident of a state that does not provide for the issuance
6-21 of a license to carry a concealed handgun and who meets the
6-22 eligibility requirements of this article other than the residency
6-23 requirement established by Section 2(a)(1) of this article to
6-24 obtain a license under this article. The procedure shall include
6-25 payment of a fee in an amount sufficient to recover the average
6-26 cost to the department of obtaining a criminal history record check
6-27 and investigation on a nonresident applicant.
6-28 (b) The department shall negotiate an agreement with any
6-29 other state that provides for the issuance of a license to carry a
6-30 concealed handgun under which a license issued by the other state
6-31 is recognized in this state [On application by a person who has a
6-32 valid license to carry a concealed handgun issued by another state,
6-33 the department may issue to the person a license under this article
6-34 without requiring that the person meet eligibility requirements or
6-35 pay fees otherwise imposed under this article, but only] if the
6-36 department determines that:
6-37 (1) the eligibility requirements imposed by the other
6-38 state include background check requirements that meet or exceed
6-39 background check [are at least as rigorous as the] requirements
6-40 imposed by federal law as a condition of receiving a handgun [this
6-41 article]; and
6-42 (2) the other state recognizes [provides reciprocal
6-43 licensing privileges to a person who holds] a license issued in
6-44 [under] this [article and applies for a license in the other]
6-45 state.
6-46 SECTION 13. Chapter 11, Alcoholic Beverage Code, is amended
6-47 by adding Section 11.041 to read as follows:
6-48 Sec. 11.041. WARNING SIGN REQUIRED. (a) Each holder of a
6-49 permit who is not otherwise required to display a sign under
6-50 Section 31, Article 4413(29ee), Revised Statutes, shall display in
6-51 a prominent place on the permit holder's premises a sign giving
6-52 notice that it is unlawful for a person to carry a weapon on the
6-53 premises unless the weapon is a concealed handgun of the same
6-54 category the person is licensed to carry under Article 4413(29ee),
6-55 Revised Statutes.
6-56 (b) The sign must be at least 6 inches high and 14 inches
6-57 wide, must appear in contrasting colors, and shall be displayed in
6-58 a conspicuous manner clearly visible to the public. The commission
6-59 or administrator may require the permit holder to also display the
6-60 sign in a language other than English if it can be observed or
6-61 determined that a substantial portion of the expected customers
6-62 speak the other language as their familiar language.
6-63 SECTION 14. Section 11.61(e), Alcoholic Beverage Code, is
6-64 amended to read as follows:
6-65 (e) Except as provided by Subsection (f), the commission or
6-66 administrator shall cancel an original or renewal permit if it is
6-67 found, after notice and hearing, that the permittee knowingly
6-68 allowed a person to possess a firearm in a building on the licensed
6-69 premises. This subsection does not apply to a person:
7-1 (1) who holds a security officer commission issued by
7-2 the Texas Board of Private Investigators and Private Security
7-3 Agencies, if:
7-4 (A) the person is engaged in the performance of
7-5 the person's duties as a security officer;
7-6 (B) the person is wearing a distinctive uniform;
7-7 and
7-8 (C) the weapon is in plain view;
7-9 (2) who is a peace officer; [or]
7-10 (3) who is a permittee or an employee of a permittee
7-11 if the person is supervising the operation of the premises; or
7-12 (4) who possesses a concealed handgun of the same
7-13 category the person is licensed to carry under Article 4413(29ee),
7-14 Revised Statutes, unless the person is on the premises of a
7-15 business described by Section 46.035(b)(1), Penal Code.
7-16 SECTION 15. Section 61.11, Alcoholic Beverage Code, is
7-17 amended to read as follows:
7-18 Sec. 61.11. Warning Sign Required. (a) Each holder of a
7-19 license who is not otherwise required to display a sign under
7-20 Section 31, Article 4413(29ee), Revised Statutes, shall display in
7-21 a prominent place on the license holder's [his] premises a sign
7-22 giving notice that it is unlawful for a person to carry a weapon on
7-23 the premises unless the weapon is a concealed handgun of the same
7-24 category the person is licensed to carry under Article 4413(29ee),
7-25 Revised Statutes.
7-26 (b) The sign must be [,] at least 6 inches high and 14
7-27 inches wide, must appear in contrasting colors, and shall be
7-28 displayed in a conspicuous manner clearly visible to the public
7-29 [stating: FELONY. STATE LAW PRESCRIBES A MAXIMUM PENALTY OF TEN
7-30 YEARS' IMPRISONMENT AND A FINE NOT TO EXCEED $5,000 FOR CARRYING
7-31 WEAPONS WHERE ALCOHOLIC BEVERAGES ARE SOLD, SERVED, OR CONSUMED].
7-32 The commission or administrator may require the holder of the
7-33 license to also display the sign in a language other than English
7-34 if it can be observed or determined that a substantial portion of
7-35 the expected customers speak the other language as their familiar
7-36 language.
7-37 [(b) A licensee who violates this section commits a
7-38 misdemeanor punishable by a fine of not more than $25.]
7-39 SECTION 16. Section 61.71(f), Alcoholic Beverage Code, is
7-40 amended to read as follows:
7-41 (f) Except as provided by Subsection (g), the commission or
7-42 administrator shall cancel an original or renewal dealer's
7-43 on-premises or off-premises license if it is found, after notice
7-44 and hearing, that the licensee knowingly allowed a person to
7-45 possess a firearm in a building on the licensed premises. This
7-46 subsection does not apply to a person:
7-47 (1) who holds a security officer commission issued by
7-48 the Texas Board of Private Investigators and Private Security
7-49 Agencies, if:
7-50 (A) the person is engaged in the performance of
7-51 the person's duties as a security officer;
7-52 (B) the person is wearing a distinctive uniform;
7-53 and
7-54 (C) the weapon is in plain view;
7-55 (2) who is a peace officer; [or]
7-56 (3) who is a licensee or an employee of a licensee if
7-57 the person is supervising the operation of the premises; or
7-58 (4) who possesses a concealed handgun of the same
7-59 category the person is licensed to carry under Article 4413(29ee),
7-60 Revised Statutes, unless the person is on the premises of a
7-61 business described by Section 46.035(b)(1), Penal Code.
7-62 SECTION 17. Chapter 104, Alcoholic Beverage Code, is amended
7-63 by adding Section 104.06 to read as follows:
7-64 Sec. 104.06. MONITORING OF GROSS RECEIPTS. (a) On the
7-65 issuance and renewal of a license or permit that allows on-premises
7-66 consumption of any alcoholic beverage the commission shall
7-67 determine whether the holder receives, or for the issuance of a
7-68 license or permit is to receive, 51 percent or more of the gross
7-69 receipts of the premises for which the license or permit is issued
8-1 from the holder's sale or service of alcoholic beverages for
8-2 on-premises consumption.
8-3 (b) The commission shall:
8-4 (1) adopt rules for making a determination under
8-5 Subsection (a); and
8-6 (2) require a holder of a license or permit to provide
8-7 any information or document that the commission needs to make a
8-8 determination.
8-9 (c) If the commission makes a determination under Subsection
8-10 (a) that a holder of a license or permit receives 51 percent or
8-11 more of the gross receipts of the premises from the sale or service
8-12 of alcoholic beverages, the holder shall comply with the
8-13 requirements of Section 31, Article 4413(29ee), Revised Statutes,
8-14 and shall continue to comply with those requirements until the
8-15 commission determines that the holder receives less than 51 percent
8-16 of the gross receipts of the premises from the sale or service of
8-17 alcoholic beverages for on-premises consumption.
8-18 SECTION 18. Section 12.092(b), Health and Safety Code, as
8-19 added by Chapter 165, Acts of the 74th Legislature, Regular
8-20 Session, 1995, is amended to read as follows:
8-21 (b) The medical advisory board shall assist the Department
8-22 of Public Safety of the State of Texas in determining whether:
8-23 (1) an applicant for a driver's license or a license
8-24 holder is capable of safely operating a motor vehicle; or
8-25 (2) an applicant for or holder of a license to carry a
8-26 concealed handgun under the authority of Article 4413(29ee),
8-27 Revised Statutes, is capable of exercising sound judgment with
8-28 respect to the proper use and storage of a handgun.
8-29 SECTION 19. Sections 12.095(a), (c), and (d), Health and
8-30 Safety Code, as added by Chapter 165, Acts of the 74th Legislature,
8-31 Regular Session, 1995, are amended to read as follows:
8-32 (a) If the Department of Public Safety of the State of Texas
8-33 requests an opinion or recommendation from the medical advisory
8-34 board as to the ability of an applicant or license holder to
8-35 operate a motor vehicle safely or to exercise sound judgment with
8-36 respect to the proper use and storage of a handgun, the
8-37 commissioner or a person designated by the commissioner shall
8-38 convene a panel to consider the case or question submitted by that
8-39 department.
8-40 (c) Each panel member shall prepare an individual
8-41 independent written report for the Department of Public Safety of
8-42 the State of Texas that states the member's opinion as to the
8-43 ability of the applicant or license holder to operate a motor
8-44 vehicle safely or to exercise sound judgment with respect to the
8-45 proper use and storage of a handgun, as appropriate. In the report
8-46 the panel member may also make recommendations relating to that
8-47 department's subsequent action.
8-48 (d) In its deliberations, a panel may examine any medical
8-49 record or report that contains material that may be relevant to the
8-50 ability of the applicant or license holder [to operate a motor
8-51 vehicle safely].
8-52 SECTION 20. Chapter 30, Penal Code, is amended by adding
8-53 Section 30.06 to read as follows:
8-54 Sec. 30.06. TRESPASS BY HOLDER OF LICENSE TO CARRY CONCEALED
8-55 HANDGUN. (a) A license holder commits an offense if the license
8-56 holder:
8-57 (1) carries a handgun under the authority of Article
8-58 4413(29ee), Revised Statutes, on property of another without
8-59 effective consent; and
8-60 (2) received notice that:
8-61 (A) entry on the property by a license holder
8-62 with a concealed handgun was forbidden; or
8-63 (B) remaining on the property with a concealed
8-64 handgun was forbidden and failed to depart.
8-65 (b) For purposes of this section, a person receives notice
8-66 if the owner of the property or someone with apparent authority to
8-67 act for the owner provides notice to the person by oral and written
8-68 communication.
8-69 (c) In this section:
9-1 (1) "Entry" has the meaning assigned by Section
9-2 30.05(b).
9-3 (2) "License holder" has the meaning assigned by
9-4 Section 46.035(f).
9-5 (d) An offense under this section is a Class A misdemeanor.
9-6 SECTION 21. Section 46.02, Penal Code, is amended to read as
9-7 follows:
9-8 Sec. 46.02. UNLAWFUL CARRYING WEAPONS. (a) A person
9-9 commits an offense if he intentionally, knowingly, or recklessly
9-10 carries on or about his person a handgun, illegal knife, or club.
9-11 (b) [It is a defense to prosecution under this section that
9-12 the actor was, at the time of the commission of the offense:]
9-13 [(1) in the actual discharge of his official duties as
9-14 a member of the armed forces or state military forces as defined by
9-15 Section 431.001, Government Code, or as a guard employed by a penal
9-16 institution;]
9-17 [(2) on his own premises or premises under his control
9-18 unless he is an employee or agent of the owner of the premises and
9-19 his primary responsibility is to act in the capacity of a security
9-20 guard to protect persons or property, in which event he must comply
9-21 with Subdivision (5);]
9-22 [(3) traveling;]
9-23 [(4) engaging in lawful hunting, fishing, or other
9-24 sporting activity on the immediate premises where the activity is
9-25 conducted, or was directly en route between the premises and the
9-26 actor's residence, if the weapon is a type commonly used in the
9-27 activity;]
9-28 [(5) a person who holds a security officer commission
9-29 issued by the Texas Board of Private Investigators and Private
9-30 Security Agencies, if:]
9-31 [(A) he is engaged in the performance of his
9-32 duties as a security officer or traveling to and from his place of
9-33 assignment;]
9-34 [(B) he is wearing a distinctive uniform; and]
9-35 [(C) the weapon is in plain view; or]
9-36 [(7) carrying a concealed handgun and a valid license
9-37 issued under Article 4413(29ee), Revised Statutes, to carry a
9-38 concealed handgun of the same category as the handgun the person is
9-39 carrying.]
9-40 [(7) a person who holds a security officer commission
9-41 and a personal protection authorization issued by the Texas Board
9-42 of Private Investigators and Private Security Agencies and who is
9-43 providing personal protection under the Private Investigators and
9-44 Private Security Agencies Act (Article 4413(29bb), Vernon's Texas
9-45 Civil Statutes).]
9-46 [(7) a holder of an alcoholic beverage permit or
9-47 license or an employee of a holder of an alcoholic beverage permit
9-48 or license if the actor is supervising the operation of the
9-49 permitted or licensed premises.]
9-50 [(c) It is a defense to prosecution under this section for
9-51 the offense of carrying a club that the actor was, at the time of
9-52 the commission of the offense, a noncommissioned security guard at
9-53 an institution of higher education who carried a nightstick or
9-54 similar club, and who had undergone 15 hours of training in the
9-55 proper use of the club, including at least seven hours of training
9-56 in the use of the club for nonviolent restraint. For the purposes
9-57 of this section, "nonviolent restraint" means the use of reasonable
9-58 force, not intended and not likely to inflict bodily injury.]
9-59 [(d) It is a defense to prosecution under this section for
9-60 the offense of carrying a firearm or carrying a club that the actor
9-61 was, at the time of the commission of the offense, a public
9-62 security officer employed by the adjutant general under Section
9-63 431.029, Government Code, and was performing official duties or
9-64 traveling to or from a place of duty.]
9-65 [(e)] Except as provided by Subsection (c) [(f)], an offense
9-66 under this section is a Class A misdemeanor.
9-67 (c) [(f)] An offense under this section is a felony of the
9-68 third degree if the offense is committed on any premises licensed
9-69 or issued a permit by this state for the sale of alcoholic
10-1 beverages.
10-2 SECTION 22. Sections 46.03(b) and (c), Penal Code, are
10-3 amended to read as follows:
10-4 (b) It is a defense to prosecution under Subsections
10-5 (a)(1)-(4) that the actor possessed a firearm while in the actual
10-6 discharge of his official duties as a [peace officer or a] member
10-7 of the armed forces or national guard or a guard employed by a
10-8 penal institution, or an officer of the court.
10-9 (c) In this section:
10-10 (1) "Premises" has the meaning assigned by Section
10-11 46.035.
10-12 (2) "Secured ["secured] area" means an area of an
10-13 airport terminal building to which access is controlled by the
10-14 inspection of persons and property under federal law.
10-15 SECTION 23. Section 46.035(b), Penal Code, is amended to
10-16 read as follows:
10-17 (b) A license holder commits an offense if the license
10-18 holder intentionally, knowingly, or recklessly carries a handgun
10-19 under the authority of Article 4413(29ee), Revised Statutes,
10-20 regardless of whether the handgun is concealed, on or about the
10-21 license holder's person:
10-22 (1) on the premises of a business that has a permit or
10-23 license issued under Chapter 25, 28, 32, [or] 69, or 74, Alcoholic
10-24 Beverage Code, if the business derives 51 percent or more of its
10-25 income from the sale or service of alcoholic beverages for
10-26 on-premises consumption, as determined by the Texas Alcoholic
10-27 Beverage Commission under Section 104.06, Alcoholic Beverage Code;
10-28 (2) on the premises where a high school, collegiate,
10-29 or professional sporting event or interscholastic event is taking
10-30 place, unless the license holder is a participant in the event and
10-31 a handgun is used in the event;
10-32 (3) on the premises of a correctional facility;
10-33 (4) on the premises of a hospital licensed under
10-34 Chapter 241, Health and Safety Code, or on the premises of a
10-35 nursing home licensed under Chapter 242, Health and Safety Code,
10-36 unless the license holder has written authorization of the hospital
10-37 or nursing home administration, as appropriate;
10-38 (5) in an amusement park; or
10-39 (6) on the premises of a church, synagogue, or other
10-40 established place of religious worship.
10-41 SECTION 24. Section 46.15, Penal Code, is amended to read as
10-42 follows:
10-43 Sec. 46.15. NONAPPLICABILITY [TO PEACE OFFICERS].
10-44 (a) Sections 46.02 and 46.03 do not apply to peace officers and
10-45 neither section prohibits a peace officer from carrying a weapon in
10-46 this state, regardless of whether the officer is engaged in the
10-47 actual discharge of the officer's duties while carrying the weapon.
10-48 (b) Section 46.02 does not apply to a person who:
10-49 (1) is in the actual discharge of official duties as a
10-50 member of the armed forces or state military forces as defined by
10-51 Section 431.001, Government Code, or as a guard employed by a penal
10-52 institution;
10-53 (2) is on the person's own premises or premises under
10-54 the person's control unless the person is an employee or agent of
10-55 the owner of the premises and the person's primary responsibility
10-56 is to act in the capacity of a security guard to protect persons or
10-57 property, in which event the person must comply with Subdivision
10-58 (5);
10-59 (3) is traveling;
10-60 (4) is engaging in lawful hunting, fishing, or other
10-61 sporting activity on the immediate premises where the activity is
10-62 conducted, or is directly en route between the premises and the
10-63 actor's residence, if the weapon is a type commonly used in the
10-64 activity;
10-65 (5) holds a security officer commission issued by the
10-66 Texas Board of Private Investigators and Private Security Agencies,
10-67 if:
10-68 (A) the person is engaged in the performance of
10-69 the person's duties as a security officer or traveling to and from
11-1 the person's place of assignment;
11-2 (B) the person is wearing a distinctive uniform;
11-3 and
11-4 (C) the weapon is in plain view;
11-5 (6) is carrying a concealed handgun and a valid
11-6 license issued under Article 4413(29ee), Revised Statutes, to carry
11-7 a concealed handgun of the same category as the handgun the person
11-8 is carrying;
11-9 (7) holds a security officer commission and a personal
11-10 protection authorization issued by the Texas Board of Private
11-11 Investigators and Private Security Agencies and who is providing
11-12 personal protection under the Private Investigators and Private
11-13 Security Agencies Act (Article 4413(29bb), Vernon's Texas Civil
11-14 Statutes); or
11-15 (8) holds an alcoholic beverage permit or license or
11-16 is an employee of a holder of an alcoholic beverage permit or
11-17 license if the person is supervising the operation of the permitted
11-18 or licensed premises.
11-19 (c) The provision of Section 46.02 prohibiting the carrying
11-20 of a club does not apply to a noncommissioned security guard at an
11-21 institution of higher education who carries a nightstick or similar
11-22 club, and who has undergone 15 hours of training in the proper use
11-23 of the club, including at least seven hours of training in the use
11-24 of the club for nonviolent restraint. For the purposes of this
11-25 subsection, "nonviolent restraint" means the use of reasonable
11-26 force, not intended and not likely to inflict bodily injury.
11-27 (d) The provisions of Section 46.02 prohibiting the carrying
11-28 of a firearm or carrying of a club do not apply to a public
11-29 security officer employed by the adjutant general under Section
11-30 431.029, Government Code, in performance of official duties or
11-31 while traveling to or from a place of duty.
11-32 SECTION 25. Section 1(10), Article 4413(29ee), Revised
11-33 Statutes, is repealed.
11-34 SECTION 26. (a) The changes in law made by this Act in
11-35 repealing Section 1(10), Article 4413(29ee), Revised Statutes,
11-36 adding Section 2(d), Article 4413(29ee), Revised Statutes, and
11-37 amending Sections 12.092 and 12.095, Health and Safety Code, as
11-38 added by Chapter 165, Acts of the 74th Legislature, Regular
11-39 Session, 1995, apply only to a person's initial application for a
11-40 license to carry a concealed handgun under Article 4413(29ee),
11-41 Revised Statutes, if the application is made on or after the
11-42 effective date of this Act. A person who makes an initial
11-43 application for a license to carry a concealed handgun under
11-44 Article 4413(29ee), Revised Statutes, before the effective date of
11-45 this Act is covered by the law that existed when the application
11-46 was made, and the former law is continued in effect for that
11-47 purpose.
11-48 (b) The changes in law made by this Act in repealing Section
11-49 1(10), Article 4413(29ee), Revised Statutes, adding Section 2(d),
11-50 Article 4413(29ee), Revised Statutes, and amending Sections 12.092
11-51 and 12.095, Health and Safety Code, as added by Chapter 165, Acts
11-52 of the 74th Legislature, Regular Session, 1995, regarding the
11-53 revocation of a license to carry a handgun, apply to any revocation
11-54 proceeding initiated on or after the effective date of this Act.
11-55 SECTION 27. Not later than September 1, 1998, a person who
11-56 before the effective date of this Act was licensed to carry a
11-57 concealed handgun under Article 4413(29ee), Revised Statutes, and
11-58 whose license was revoked on the sole basis that the person was
11-59 charged with the commission of a Class A or Class B misdemeanor or
11-60 an offense under Section 42.01, Penal Code, or a felony under an
11-61 information or indictment may apply to the department to change the
11-62 status of the person's license in accordance with Sections 12 and
11-63 13, Article 4413(29ee), Revised Statutes, as amended by this Act.
11-64 The Department of Public Safety shall promptly place the person's
11-65 license on suspension, if the charges against the person are still
11-66 pending, or reinstate the person's license, if the charges against
11-67 the person have been dismissed.
11-68 SECTION 28. Not later than December 1, 1997, the Department
11-69 of Public Safety shall establish the procedure and shall commence
12-1 any negotiation required by Section 35, Article 4413(29ee), Revised
12-2 Statutes, as amended by this Act.
12-3 SECTION 29. (a) The Texas Alcoholic Beverage Commission
12-4 shall:
12-5 (1) not later than October 1, 1997, adopt the rules
12-6 required by Section 104.06, Alcoholic Beverage Code, as added by
12-7 this Act; and
12-8 (2) at the time of the issuance or the first renewal
12-9 of a license or permit under the Alcoholic Beverage Code, that
12-10 allows on-premises consumption of any alcoholic beverage and that
12-11 occurs on or after October 1, 1997, make the initial determination
12-12 required by Section 104.06, Alcoholic Beverage Code, as added by
12-13 this Act.
12-14 (b) The change in law made by this Act to Section 31,
12-15 Article 4413(29ee), Revised Statutes, applies only to the display
12-16 of a sign on or after the date the Texas Alcoholic Beverage
12-17 Commission makes an initial determination under Section 104.06,
12-18 Alcoholic Beverage Code, as added by this Act, in accordance with
12-19 Subsection (a)(2) of this section, with respect to the holder of a
12-20 license or permit who conducts business on the premises for which
12-21 the determination is made.
12-22 (c) The change in law made by this Act to Section 46.035,
12-23 Penal Code, relating to the Texas Alcoholic Beverage Commission's
12-24 determination of the percentage of income derived from the sale or
12-25 service of alcoholic beverages for on-premises consumption applies
12-26 only to an offense committed on or after October 1, 1998. For
12-27 purposes of this section, an offense is committed before October 1,
12-28 1998, if any element of the offense occurs before that date.
12-29 SECTION 30. The changes in law made by this Act to Sections
12-30 46.02, 46.03, and 46.15, Penal Code, apply only to an offense
12-31 committed on or after the effective date of this Act. An offense
12-32 committed before the effective date of this Act is covered by the
12-33 law in effect when the offense was committed, and the former law is
12-34 continued in effect for that purpose. For purposes of this
12-35 section, an offense was committed before the effective date of this
12-36 Act if any element of the offense occurred before that date.
12-37 SECTION 31. This Act takes effect September 1, 1997.
12-38 SECTION 32. The importance of this legislation and the
12-39 crowded condition of the calendars in both houses create an
12-40 emergency and an imperative public necessity that the
12-41 constitutional rule requiring bills to be read on three several
12-42 days in each house be suspended, and this rule is hereby suspended.
12-43 * * * * *