By:  Patterson                                        S.B. No. 1669

         Line and page numbers may not match official copy.

         Bill not drafted by TLC or Senate E&E.

                                A BILL TO BE ENTITLED

                                       AN ACT

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

 1-2     of Texas, providing a penalty and declaring emergency.

 1-3           SECTION 1.  Legislative Intent.

 1-4           It is the intention of the legislature by this Act to create

 1-5     an orderly system to determine whether or not individuals who seek

 1-6     to purchase firearms in this State are persons convicted of felony

 1-7     offenses.  It is the sense of the Legislature that persons

 1-8     convicted of felony offenses should not be permitted to acquire

 1-9     firearms in this State.

1-10           To that end, the Legislature directs that this law should be

1-11     construed to accomplish the aforementioned goal and that in any

1-12     situation where doubt exists as to whether or not an individual is

1-13     indeed a convicted felon, no approval should be issued by the

1-14     department.

1-15           SECTION 2.  Fugitive from Justice.

1-16           An individual who is determined to be a fugitive from justice

1-17     shall not be issued an approval number.  An individual who is a

1-18     fugitive from justice is one for whom a current warrant of arrest

1-19     is outstanding.

1-20           Where a warrant of arrest is found to be outstanding, the

1-21     department shall, within the next working day, confirm the

 2-1     existence of such warrant and will, within the next working day

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

 2-3     law enforcement agencies throughout this State in securing the

 2-4     arrest of individuals who are fugitives from justice who present

 2-5     themselves at a licensee's premises for the purpose of acquiring

 2-6     firearms.

 2-7           Nothing in this Act shall preclude an individual otherwise

 2-8     entitled to purchase a firearm from purchasing a firearm.

 2-9           SECTION 3.  Definitions.

2-10           (A)  Firearm.  Means any device designed, made or adapted to

2-11     expel a projectile through a barrel by using the energy generated

2-12     by an explosion of burning substance or any device readily

2-13     convertible to that use.  Firearm does not include antique or curio

2-14     firearms that were manufactured prior to 1899.

2-15           (B)  Transfer.  The process by which a firearm is conveyed to

2-16     one person by a licensee for consideration.

2-17           (C)  Licensee.  Any dealer, seller or purveyor of firearms

2-18     licensed under the Federal Firearms Act.

2-19           (D)  On the Premises.  On the premises of a licensee includes

2-20     each and every place where a licensee conducts business.

2-21           (E)  For purpose of this section, a working day shall be

2-22     construed as a period of time from 8 a.m. to 5 p.m. Monday through

2-23     Friday, excluding holidays.

2-24           (F)  Department.  Means Department of Public Safety.

2-25           (G)  Holidays.  Means all days recognized by the Legislature

 3-1     of the State of Texas as holidays for state employees, as well as

 3-2     those days upon which any county court shall be closed for

 3-3     business.

 3-4           (H)  Section.  Means the Firearm Transfer Section of the

 3-5     Crime Records Service of Texas Department of Public Safety.

 3-6           SECTION 4.  Process.

 3-7           In each situation where a citizen of this state or a

 3-8     non-resident of this state wishes to acquire a firearm in this

 3-9     state, before the transfer of the firearm may be completed, the

3-10     licensee must perform the following functions:

3-11           (A)  The licensee shall call, on a toll free phone number to

3-12     be operated during hours consistent with the provisions of this

3-13     Act, the Section only for the purpose of securing authorization to

3-14     transfer a firearm.

3-15           (B)  The licensee shall provide the licensee's federal

3-16     firearms license number and the state issued control number to the

3-17     Section.

3-18           (C)  Personnel in the Section will access information

3-19     available to the Texas Department of Public Safety including

3-20     federal databases established for this purpose to ascertain whether

3-21     or not the individual is a person convicted of a felony under the

3-22     laws of this State or any other state of the United States or the

3-23     individual is a fugitive from justice.

3-24           (D)  The inquiry shall be responded to in the timeliest

3-25     manner practicable.  Where possible, the response shall be during

 4-1     the same phone call.  In the event that a response is not possible

 4-2     in the same phone call, then the response shall be made by end of

 4-3     the next working day.

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

 4-5     records currently available to the Department based upon the

 4-6     information provided by the licensee.

 4-7           (F)  Information to be provided.  The licensee must provide

 4-8     the Department with all the information contained on the form,

 4-9     including but not limited to the full legal name of the individual,

4-10     date of birth, race, gender, Texas driver's license number, if

4-11     available, and social security number and any other identifying

4-12     information made available by the person to the licensee.

4-13           SECTION 5.  Responses.

4-14           Section will make one of the following responses to a

4-15     licensee:

4-16           (A)  Issue an approval number to the licensee.

4-17           (B)  Issue a non-approval number to the licensee.

4-18           (C)  Issue a conditional non-approval number to the licensee

4-19     until such time as it can be determined by the Section within the

4-20     next working day that the person is not entitled to receive an

4-21     approval number.

4-22           (D)  When the Section has insufficient information to issue

4-23     an approval number, a non-approval number will be issued.  The

4-24     individual will be advised by the licensee of the provisions of

4-25     Section 11 of this Act.

 5-1           (E)  In the event that the conditional non-approval is not

 5-2     later approved, then the conditional non-approval number shall

 5-3     serve as the number to indicate a non-approval by the Department.

 5-4           SECTION 6.  Forms.

 5-5           Licensees shall purchase from the Department appropriate

 5-6     forms which the Department is empowered to design and sell for

 5-7     purposes of securing the aforementioned record checks.

 5-8           These forms shall contain sufficient blanks and spaces to

 5-9     capture all of the information the department deems necessary to

5-10     assure accurate checks.  The department may sell said forms in such

5-11     quantities as is deemed appropriate.

5-12           The department shall affix a control number to each form sold

5-13     to a licensee under this Act.  These forms shall be bought and paid

5-14     for in advance.  Only one firearm may be acquired per form used by

5-15     the licensee.

5-16           SECTION 7.  Records.

5-17           (A)  The records regarding the activities under this Act

5-18     conducted by the  department are not subject to release under the

5-19     Open Records Act.

5-20           (B)  The department may retain such records as are necessary

5-21     to satisfy all federal requirements regarding access to National

5-22     Crime Information Center systems and such other records as may be

5-23     deemed necessary and appropriate by the Department to comply with

5-24     all necessary State and federal laws.

5-25           (C)  Licensees shall retain records of all transactions

 6-1     conducted under this Act.

 6-2           (D)  Except as otherwise provided, no information shall be

 6-3     retained by the Department which will enable an individual to

 6-4     identify a particular person as the purchaser of a firearm.

 6-5           (E)  The Department is not required to take any action other

 6-6     than to make a complete examination of the computerized record that

 6-7     is assigned to the named individual.

 6-8           (F)  The Department is authorized to adopt all rules

 6-9     necessary for the implementation of the provisions of this Act.

6-10           (G)  The department may, by rule, set a fee subject to

6-11     approval by the Public Safety Commission, sufficient to recover the

6-12     actual cost of the administration of this Act.

6-13           SECTION 8.  Cost.

6-14           (A)  All funds received under this Act shall be transmitted

6-15     by the Department to the Comptroller of Public Accounts for deposit

6-16     in the General Revenue Fund credited to an account to be known as

6-17     the Firearms Criminal Records Transfer Account.  Funds deposited in

6-18     that account may be appropriated by the Legislature only for

6-19     purposes of administering the provisions of this Act.

6-20           SECTION 9.  Indemnity.

6-21           Each and every action taken by a member of the Department

6-22     shall not give rise to a cause of action in damages; neither shall

6-23     it serve as a basis for a claim or any other attempt to recover

6-24     money damages.  The Department of Public Safety, its employees and

6-25     all licensees who are performing duties and responsibilities under

 7-1     this Act, are immune from suit under any theory and may not be held

 7-2     accountable in damages for any lawful act taken under this Act.

 7-3           SECTION 10.  Computer Failure.

 7-4           In the event the computer systems of the Department are not

 7-5     operational at the time that a licensee calls due to an act of God

 7-6     or other disaster, war or events not subject to the control of the

 7-7     Department, or in the event scheduled computer down time prevents

 7-8     accessing the record, then the department shall, at the earliest

 7-9     opportunity but not later than one working day after the

7-10     restoration of service, respond to the inquiry.

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

7-12           In the event an individual is not approved for purchase of a

7-13     firearm, that individual shall have only these remedies:

7-14           (A)  The individual may contact the department and provide a

7-15     true copy of their fingerprints for purposes of ascertaining the

7-16     correctness of the record.  In the event the record is inaccurate,

7-17     the department shall take necessary steps to correct that record.

7-18     The fingerprints shall be taken and situated in a manner and on a

7-19     form as provided by the Department by rule.

7-20           (B)  The provisions of Chapter 55 of the Code of Criminal

7-21     Procedure regarding Expunctions may be utilized by persons seeking

7-22     the transfer of firearms under the provisions contained in that

7-23     Act.  The fact that an individual has been denied an approval under

7-24     this Act does not serve as a basis for an expunction.

7-25           SECTION 12.  Department Hours of Operation.

 8-1           The department shall operate the toll free number during the

 8-2     period from 9:00 a.m. to 9:00 p.m. on Monday through Saturday.

 8-3     Said number shall operate from Noon until 8:00 p.m. on Sundays.

 8-4     The department is not required to operate the line on New Years

 8-5     Day, Easter Sunday, Memorial Day, Fourth of July, Labor Day,

 8-6     Thanksgiving Day, and Christmas Day.  The department may suspend

 8-7     operations of the phone line after giving 10-day notice in writing

 8-8     to each licensee hereunder of the intention of the department to

 8-9     not operate on a particular day.  The purposes for which this may

8-10     be undertaken is maintenance of equipment, computer updating,

8-11     facilitation of employee work patterns and other good and

8-12     sufficient reasons deemed appropriate by the Director of the

8-13     Department.

8-14           SECTION 13.  Surrender of Forms.

8-15           In the event that an individual, who has previously been

8-16     licensed under the Federal Firearms Act to transfer firearms, is no

8-17     longer licensed, then that individual shall immediately surrender

8-18     to the Department all forms purchased by that individual licensee

8-19     under this Act.  The department shall cancel such forms and delete

8-20     the individual licensee from the list of approved licensees and

8-21     shall issue no further approvals or non-approvals under the

8-22     appropriate Federal Firearms License and Department control

8-23     numbers.

8-24           SECTION 14.  Referral of Violations.

8-25           All violations of the provisions of this Act shall be

 9-1     referred to the appropriate law enforcement agency.

 9-2           SECTION 15.  Offenses.

 9-3           (A)  A licensee commits an offense if he transfers a firearm

 9-4     without complying with the provisions of this Act.

 9-5           (B)  A person commits an offense if he obtains a firearm

 9-6     without complying with the provisions of this Act.

 9-7           (C)  A licensee commits an offense if the licensee transfers

 9-8     a firearm without an approval number.

 9-9           (D)  Any conduct which violates any other provision of this

9-10     Act, or any rule promulgated under this Act, is an offense and is

9-11     subject to prosecution as a Class A misdemeanor.

9-12           (E)  Any employee of the Department who knowingly

9-13     disseminates information in a manner contrary to the provisions of

9-14     this Act or who knowingly violates any provision of this Act, shall

9-15     be guilty of official misconduct and their position with the

9-16     Department may be subject to forfeiture.

9-17           (F)  Any employee of the Department who disseminates

9-18     information in a manner contrary to the provisions of this Act for

9-19     remuneration shall be guilty of official misconduct and shall

9-20     forfeit their position with the Department.

9-21           (G)  (1)  An offense under paragraphs A, B, C, E, G, and H is

9-22     a third degree felony.

9-23                 (2)  An offense under paragraph F is a second degree

9-24     felony.

9-25           (H)  A licensee commits an offense if he fails:

 10-1                1)  to maintain the necessary records,

 10-2                2)  to cooperate with any inspection conducted by the

 10-3    Department,

 10-4                3)  to make his records available for inspection,

 10-5                4)  to maintain records required by the Department; and

 10-6                5)  to cooperate in investigations conducted under this

 10-7    Act.

 10-8          (I)  A person commits an offense if he manufactures,

 10-9    produces, possesses with the intent to use or sell or use an

10-10    authorization form not issued by the department under the

10-11    provisions of this Act.

10-12          SECTION 16.  Exception to Application of APTRA.

10-13          The provisions of the Administrative Procedures and Texas

10-14    Register Act do not apply to a review of a non-approval under this

10-15    Act.

10-16          SECTION 17.  Identification Required.

10-17          In order to secure the transfer of a firearm in the State of

10-18    Texas an individual must produce a valid driver's license or ID

10-19    certificate issued by the Department, or other currently valid

10-20    photo ID issued by a governmental entity of another state or the

10-21    United States.

10-22          SECTION 18.  Cost Recovery by Licensee.

10-23          A licensee is entitled to recover the cost of the form

10-24    purchased from the Department to comply with the provisions of this

10-25    Act.  In addition, a licensee may add an administrative fee not to

 11-1    exceed $2.50.  A licensee is entitled to recover the sum of money

 11-2    that includes both the fee paid to the Department by the licensee

 11-3    and the administrative cost, prior to the time that the licensee

 11-4    contacts the Section for purposes of checking the record, under

 11-5    this Act.  The fee collected under this section, by the licensee,

 11-6    is non-refundable.

 11-7          SECTION 19.  Notification of Federal Authorities.

 11-8          The Department of Public Safety shall notify the appropriate

 11-9    federal authorities of any licensee who violates any provision of

11-10    this Act.

11-11          SECTION 20.  Errors in Reported Information.

11-12          The Department of Public Safety is not liable or responsible

11-13    for any errors, inaccuracies or omissions in the information which

11-14    has been submitted to it by reporting agencies.

11-15          SECTION 21.  Reporting.

11-16          (A)  Agencies required to report matters related to criminal

11-17    history record information are directed to promptly report them to

11-18    the Department in accordance with Chapter 60, Texas Code of

11-19    Criminal Procedure.

11-20          (B)  Agencies reporting this information shall insure that

11-21    the information is complete, accurate and promptly transmitted to

11-22    the Department for inclusion in the criminal history record file.

11-23    The failure of a reporting agency to properly report the

11-24    information to the Department is not a basis for a claim for

11-25    damages against the Department or the reporting agency.

 12-1          (C)(1)  A reporting agency that fails to promptly notify the

 12-2    Department of information related to criminal history record

 12-3    information is subject to being denied access to the computerized

 12-4    criminal history files maintained by the Texas Department of Public

 12-5    Safety.

 12-6                (2)  A public servant who intentionally or knowingly

 12-7    fails or refuses to report information to the Texas Department of

 12-8    Public Safety, which they are required to report, commits an

 12-9    offense and is guilty of official misconduct and upon conviction

12-10    shall be removed from office.

12-11                (3)  An offense under this section is a third degree

12-12    felony.

12-13          SECTION 22.  No Right Established.

12-14          Nothing contained in this Act shall create a right,

12-15    privilege, immunity or entitlement that an individual does not

12-16    already have.  The approval of the acquisition of a firearm under

12-17    this Act does not convey any other right, privilege or immunity

12-18    neither does it entitle any individual to any greater rights than

12-19    they would have had without obtaining said approval.  The failure

12-20    of the Department to issue an approval for an individual to acquire

12-21    a firearm does not mean anything other than non-approval.

12-22          SECTION 23.  Inspection authority.

12-23          (A)  The Department shall have the authority to enter, during

12-24    normal business hours, the premises of any individual who is a

12-25    licensed federal firearms dealer and who has secured a control

 13-1    number under the provisions of this Act.

 13-2          (B)  Any Commissioned peace officer of the State of Texas

 13-3    shall have the authority to inspect the records of an individual

 13-4    licensee regarding transactions consummated under the terms and

 13-5    provisions of this Act.

 13-6          (C)  Licensees are required to make available all records

 13-7    maintained under this Act and shall cooperate with any commissioned

 13-8    peace officer of the State of Texas conducting an investigation.

 13-9          (D)  The failure to cooperate in investigation or inspection

13-10    under this Act may result in revocation of a control number.

13-11          SECTION 24.  Revocation of Control Numbers.

13-12          (A)  In the event a licensee is convicted of an offense under

13-13    this Act, the licensee's control number shall be revoked.  In the

13-14    event an individual fails to cooperate in an investigation,

13-15    licensee's control number shall be revoked.  In the event the

13-16    Department has reason to believe that the individual licensee is

13-17    conducting operations in violation of this Act and can prove by

13-18    preponderance of the evidence that the licensee is violating this

13-19    Act, then the licensee's control number shall be revoked.

13-20          (B)  In the event of the revocation of the licensee's control

13-21    number, the licensee shall no longer be permitted to secure

13-22    approval for the sale of firearms under this Act.  Licensee shall

13-23    surrender all unused forms to the Department upon revocation of the

13-24    licensee's control number.

13-25          SECTION 25.  Appeal of Revocation.

 14-1          An individual licensee whose control number has been revoked,

 14-2    shall be entitled to an appeal under the provisions of the

 14-3    Administrative Procedures and Texas Register Act, Article 6252-13a,

 14-4    V.T.C.S.

 14-5          SECTION 26.  Administrative subpoena.

 14-6          The director of the department or the director's designee may

 14-7    issue an administrative subpoena to a licensee to compel the

 14-8    production of the licensee's records that;

 14-9          (1)  disclose information about

14-10                (a)  firearms transactions; or

14-11                (b)  violations of this Act; and

14-12          (2)  are material to a criminal investigation.

14-13          SECTION 27.  Information Available to Peace Officers.

14-14          Any peace officer of the State of Texas is entitled to

14-15    request from the Department information retained by it under the

14-16    provisions of this Act for legitimate law enforcement purposes.

14-17    Legitimate law enforcement purposes include, but are not limited

14-18    to, the investigation of criminal activity.

14-19          SECTION 28.  Ammunition.

14-20          Nothing in this Act regulates the sale of ammunition for any

14-21    weapon.

14-22          SECTION 29.  Applicability.

14-23          Nothing in this Act relates to any firearm that has been

14-24    acquired prior to the effective date of this Act.  However, if said

14-25    firearm is subsequently transferred then the provisions of this Act

 15-1    shall apply.

 15-2          SECTION 30.  The importance of this legislation and the

 15-3    crowded condition of the calendars in both houses create an

 15-4    emergency and an imperative public necessity that the

 15-5    constitutional rule requiring bills to be read on three several

 15-6    days in each house be suspended, and this rule is hereby suspended.