By Greenberg                                          H.B. No. 3467

         Line and page numbers may not match official copy.

         Bill not drafted by TLC or Senate E&E.

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to the acquisition of firearms by individuals in the State

 1-3     of Texas, providing a penalty and declaring emergency.

 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-5           SECTION 1.  Legislative Intent.

 1-6           It is the intention of the legislature by this Act to create

 1-7     an orderly system to determine whether or not individuals who seek

 1-8     to purchase firearms in this State are persons convicted of felony

 1-9     offenses.  It is the sense of the Legislature that persons

1-10     convicted of felony offenses should not be permitted to acquire

1-11     firearms in this State.

1-12           To that end, the Legislature directs that this law should be

1-13     construed to accomplish the aforementioned goal and that in any

1-14     situation where doubt exists as to whether or not an individual is

1-15     indeed a convicted felon, no approval should be issued by the

1-16     department.

1-17           SECTION 2.  Fugitive from Justice.

1-18           An individual who is determined to be a fugitive from justice

1-19     shall not be issued an approval number.  An individual who is a

1-20     fugitive from justice is one for whom a current warrant of arrest

1-21     is outstanding.

1-22           Where a warrant of arrest is found to be outstanding, the

 2-1     department shall, within the next working day, confirm the

 2-2     existence of such warrant and will, within the next working day

 2-3     notify the licensee.  Licensees are directed to cooperate with the

 2-4     law enforcement agencies throughout this State in securing the

 2-5     arrest of individuals who are fugitives from justice who present

 2-6     themselves at a licensee's premises for the purpose of acquiring

 2-7     firearms.

 2-8           Nothing in this Act shall preclude an individual otherwise

 2-9     entitled to purchase a firearm from purchasing a firearm.

2-10           SECTION 3.  Definitions.

2-11           (a)  Firearm.  Means any device designed, made or adapted to

2-12     expel a projectile through a barrel by using the energy generated

2-13     by an explosion of burning substance or any device readily

2-14     convertible to that use.  Firearm does not include antique or curio

2-15     firearms that were manufactured prior to 1899.

2-16           (b)  Transfer.  The process by which a firearm is conveyed to

2-17     one person by a licensee for consideration.

2-18           (c)  Licensee.  Any dealer, seller or purveyor of firearms

2-19     licensed under the Federal Firearms Act.

2-20           (d)  On the Premises.  On the premises of a licensee includes

2-21     each and every place where a licensee conducts business.

2-22           (e)  For purpose of this section, a working day shall be

2-23     construed as a period of time from 8 a.m. to 5 p.m. Monday through

2-24     Friday, excluding holidays.

2-25           (f)  Department.  Means Department of Public Safety.

2-26           (g)  Holidays.  Means all days recognized by the Legislature

2-27     of the State of Texas as holidays for state employees, as well as

 3-1     those days upon which any county court shall be closed for

 3-2     business.

 3-3           (h)  Section.  Means the Firearm Transfer Section of the

 3-4     Crime Records Service of Texas Department of Public Safety.

 3-5           SECTION 4.  Process.

 3-6           In each situation where a citizen of this state or a

 3-7     non-resident of this state wishes to acquire a firearm in this

 3-8     state, before the transfer of the firearm may be completed, the

 3-9     licensee must perform the following functions:

3-10           (a)  The licensee shall call, on a toll free phone number to

3-11     be operated during hours consistent with the provisions of this

3-12     Act, the Section only for the purpose of securing authorization to

3-13     transfer a firearm.

3-14           (b)  The licensee shall provide the licensee's federal

3-15     firearms license number and the state issued control number to the

3-16     Section.

3-17           (c)  Personnel in the Section will access information

3-18     available to the Texas Department of Public Safety including

3-19     federal databases established for this purpose to ascertain whether

3-20     or not the individual is a person convicted of a felony under the

3-21     laws of this State or any other state of the United States or the

3-22     individual is a fugitive from justice.

3-23           (d)  The inquiry shall be responded to in the timeliest

3-24     manner practicable.  Where possible, the response shall be during

3-25     the same phone call.  In the event that a response is not possible

3-26     in the same phone call, then the response shall be made by end of

3-27     the next working day.

 4-1           (e)  Section personnel shall make an examination of the

 4-2     records currently available to the Department based upon the

 4-3     information provided by the licensee.

 4-4           (f)  Information to be provided.  The licensee must provide

 4-5     the Department with all the information contained on the form,

 4-6     including but not limited to the full legal name of the individual,

 4-7     date of birth, race, gender, Texas driver's license number, if

 4-8     available, and social security number and any other identifying

 4-9     information made available by the person to the licensee.

4-10           SECTION 5.  Responses.

4-11           Section will make one of the following responses to a

4-12     licensee:

4-13           (a)  Issue an approval number to the licensee.

4-14           (b)  Issue a non-approval number to the licensee.

4-15           (c)  Issue a conditional non-approval number to the licensee

4-16     until such time as it can be determined by the Section within the

4-17     next working day that the person is not entitled to receive an

4-18     approval number.

4-19           (d)  When the Section has insufficient information to issue

4-20     an approval number, a non-approval number will be issued.  The

4-21     individual will be advised by the licensee of the provisions of

4-22     Section 11 of this Act.

4-23           (e)  In the event that the conditional non-approval is not

4-24     later approved, then the conditional non-approval number shall

4-25     serve as the number to indicate a non-approval by the Department.

4-26           SECTION 6.  Forms.

4-27           Licensees shall purchase from the Department appropriate

 5-1     forms which the Department is empowered to design and sell for

 5-2     purposes of securing the aforementioned record checks.

 5-3           These forms shall contain sufficient blanks and spaces to

 5-4     capture all of the information the department  deems necessary to

 5-5     assure accurate checks.  The department may sell said forms in such

 5-6     quantities as is deemed appropriate.

 5-7           The department shall affix a control number to each form sold

 5-8     to a licensee under this Act.  These forms shall be bought and paid

 5-9     for in advance.  Only one firearm may be acquired per form used by

5-10     the licensee.

5-11           SECTION 7.  Records.

5-12           (a)  The records regarding the activities under this Act

5-13     conducted by the department are not subject to release under the

5-14     Open Records Act.

5-15           (b)  The department may retain such records as are necessary

5-16     to satisfy all federal requirements regarding access to National

5-17     Crime Information Center systems and such other records as may be

5-18     deemed necessary and appropriate by the Department to comply with

5-19     all necessary State and federal laws.

5-20           (c)  Licensees shall retain records of all transactions

5-21     conducted under this Act.

5-22           (d)  Except as otherwise provided, no information shall be

5-23     retained by the Department which will enable an individual to

5-24     identify a particular person as the purchaser of a firearm.

5-25           (e)  The Department is not required to take any action other

5-26     than to make a complete examination of the computerized record that

5-27     is assigned to the named individual.

 6-1           (f)  The Department is authorized to adopt all rules

 6-2     necessary for the implementation of the provisions of this Act.

 6-3           (g)  The department may, by rule, set a fee subject to

 6-4     approval by the Public Safety Commission, sufficient to recover the

 6-5     actual cost of the administration of this Act.

 6-6           SECTION 8.  Cost.

 6-7           (a)  All funds received under this Act shall be transmitted

 6-8     by the Department to the Comptroller of Public Accounts for deposit

 6-9     in the General Revenue Fund credited to an account to be known as

6-10     the Firearms Criminal Records Transfer Account.  Funds deposited in

6-11     that account may be appropriated by the Legislature only for

6-12     purposes of administering the provisions of this Act.

6-13           SECTION 9.  Indemnity.

6-14           Each and every action taken by a member of the Department

6-15     shall not give rise to a cause of action in damages; neither shall

6-16     it serve as a basis for a claim or any other attempt to recover

6-17     money damages.  The Department of Public Safety, its employees and

6-18     all licensees who are performing duties and responsibilities under

6-19     this Act, are immune from suit under any theory and may not be held

6-20     accountable in damages for any lawful act taken under this Act.

6-21           SECTION 10.  Computer Failure.

6-22           In the event the computer systems of the Department are not

6-23     operational at the time that a licensee calls due to an act of God

6-24     or other disaster, war or events not subject to the control of the

6-25     Department, or in the event scheduled computer down time prevents

6-26     accessing the record, then the department shall, at the earliest

6-27     opportunity but not later than one working day after the

 7-1     restoration of service, respond to the inquiry.

 7-2           SECTION 11.  Remedies on Non-approval.

 7-3           In the event an individual is not approved for purchase of a

 7-4     firearm, that individual shall have only these remedies:

 7-5           (a)  The individual may contact the department and provide a

 7-6     true copy of their fingerprints for purposes of ascertaining the

 7-7     correctness of the record.  In the event the record is inaccurate,

 7-8     the department shall take necessary steps to correct that record.

 7-9     The fingerprints shall be taken and situated in a manner and on a

7-10     form as provided by the Department by rule.

7-11           (b)  The provisions of Chapter 55 of the Code of Criminal

7-12     Procedure regarding Expunctions may be utilized by persons seeking

7-13     the transfer of firearms under the provisions contained in that

7-14     Act.  The fact that an individual has been denied an approval under

7-15     this Act does not serve as a basis for an expunction.

7-16           SECTION 12.  Department Hours of Operation.

7-17           The department shall operate the toll free number during the

7-18     period from 9:00 a.m. to 9:00 p.m. on Monday through Saturday.

7-19     Said number shall operate from Noon until 8:00 p.m. on Sundays.

7-20     The department is not required to operate the line on New Years

7-21     Day, Easter Sunday, Memorial Day, Fourth of July, Labor Day,

7-22     Thanksgiving Day, and Christmas Day.  The department may suspend

7-23     operations of the phone line after giving 10-day notice in writing

7-24     to each licensee hereunder of the intention of the department to

7-25     not operate on a particular day.  The purposes for which this may

7-26     be undertaken is maintenance of equipment, computer updating,

7-27     facilitation of employee work patterns and other good and

 8-1     sufficient reasons deemed appropriate by the Director of the

 8-2     Department.

 8-3           SECTION 13.  Surrender of Forms.

 8-4           In the event that an individual, who has previously been

 8-5     licensed under the Federal Firearms Act to transfer firearms, is no

 8-6     longer licensed, then that individual shall immediately surrender

 8-7     to the Department all forms purchased by that individual licensee

 8-8     under this Act.  The department shall cancel such forms and delete

 8-9     the individual licensee from the list of approved licensees and

8-10     shall issue no further approvals or non-approvals under the

8-11     appropriate Federal Firearms License and Department control

8-12     numbers.

8-13           SECTION 14.  Referral of Violations.

8-14           All violations of the provisions of this Act shall be

8-15     referred to the appropriate law enforcement agency.

8-16           SECTION 15.  Offenses.

8-17           (a)  A licensee commits an offense if he transfers a firearm

8-18     without complying with the provisions of this Act.

8-19           (b)  A person commits an offense if he obtains a firearm

8-20     without complying with the provisions of this Act.

8-21           (c)  A licensee commits an offense if the licensee transfers

8-22     a firearm without an approval number.

8-23           (d)  Any conduct which violates any other provision of this

8-24     Act, or any rule promulgated under this Act, is an offense and is

8-25     subject to prosecution as a Class A misdemeanor.

8-26           (e)  Any employee of the Department who knowingly

8-27     disseminates information in a manner contrary to the provisions of

 9-1     this Act or who knowingly violates any provision of this Act, shall

 9-2     be guilty of official misconduct and their position with the

 9-3     Department may be subject to forfeiture.

 9-4           (f)  Any employee of the Department who disseminates

 9-5     information in a manner contrary to the provisions of this Act for

 9-6     remuneration shall be guilty of official misconduct and shall

 9-7     forfeit their position with the Department.

 9-8           (g) (1)  An offense under paragraphs A, B, C, E, G, and H is

 9-9     a third degree felony.

9-10                 (2)  An offense under paragraph F is a second degree

9-11     felony.

9-12           (h)  A licensee commits an offense if he fails:

9-13                 1)  to maintain the necessary records,

9-14                 2)  to cooperate with any inspection conducted by the

9-15     Department,

9-16                 3)  to make his records available for inspection,

9-17                 4)  to maintain records required by the Department; and

9-18                 5)  to cooperate in investigations conducted under this

9-19     Act.

9-20           (i)  A person commits an offense if he manufactures,

9-21     produces, possesses with the intent to use or sell or use an

9-22     authorization form not issued by the department under the

9-23     provisions of this Act.

9-24           SECTION 16.  Exception to Application of APTRA.

9-25           The provisions of the Administrative Procedures and Texas

9-26     Register Act do not apply to a review of a non-approval under this

9-27     Act.