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.