By Uher H.B. No. 1776
76R4339 PEP-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to certain eligibility requirements for a license to carry
1-3 a concealed handgun and to the procedures for denial, suspension,
1-4 or revocation of a license.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 411.172(a), Government Code, is amended
1-7 to read as follows:
1-8 (a) A person is eligible for a license to carry a concealed
1-9 handgun if the person:
1-10 (1) is a legal resident of this state for the
1-11 six-month period preceding the date of application under this
1-12 subchapter or is otherwise eligible for a license under Section
1-13 411.173(a);
1-14 (2) is at least 21 years of age;
1-15 (3) has not been convicted of a felony;
1-16 (4) is not charged with the commission of a Class A
1-17 misdemeanor or of a Class B misdemeanor [or an offense] under
1-18 Section 20.02 or 22.07 [42.01], Penal Code, or of a felony under
1-19 an information or indictment;
1-20 (5) is not a fugitive from justice for a felony, [or]
1-21 a Class A misdemeanor, or a Class B misdemeanor under Section 20.02
1-22 or 22.07, Penal Code;
1-23 (6) is not a chemically dependent person;
1-24 (7) is not incapable of exercising sound judgment with
2-1 respect to the proper use and storage of a handgun;
2-2 (8) has not, in the five years preceding the date of
2-3 application, been convicted of a Class A misdemeanor or of a Class
2-4 B misdemeanor [or an offense] under Section 20.02 or 22.07 [42.01],
2-5 Penal Code;
2-6 (9) is fully qualified under applicable federal and
2-7 state law to purchase a handgun;
2-8 (10) has not been finally determined to be delinquent
2-9 in making a child support payment administered or collected by the
2-10 attorney general;
2-11 (11) has not been finally determined to be delinquent
2-12 in the payment of a tax or other money collected by the
2-13 comptroller, the tax collector of a political subdivision of the
2-14 state, or any agency or subdivision of the state;
2-15 (12) has not been finally determined to be in default
2-16 on a loan made under Chapter 57, Education Code;
2-17 (13) is not currently restricted under a court
2-18 protective order or subject to a restraining order affecting the
2-19 spousal relationship, other than a restraining order solely
2-20 affecting property interests;
2-21 (14) has not, in the 10 years preceding the date of
2-22 application, been adjudicated as having engaged in delinquent
2-23 conduct violating a penal law of the grade of felony; and
2-24 (15) has not made any material misrepresentation, or
2-25 failed to disclose any material fact, in an application submitted
2-26 pursuant to Section 411.174 or in a request for application
2-27 submitted pursuant to Section 411.175.
3-1 SECTION 2. Section 411.180, Government Code, is amended to
3-2 read as follows:
3-3 Sec. 411.180. [NOTIFICATION OF] DENIAL, REVOCATION, OR
3-4 SUSPENSION OF LICENSE; JUDICIAL REVIEW. (a) If the department
3-5 refuses to issue an original license or proposes to suspend,
3-6 revoke, or refuse to renew a license, the applicant or license
3-7 holder affected is entitled to a hearing conducted by the State
3-8 Office of Administrative Hearings. Proceedings for an action
3-9 described by this section are governed by Chapter 2001, except that
3-10 judicial review is initiated by filing a petition in a court that
3-11 has jurisdiction over appeals from justice and municipal courts in
3-12 the county in which the applicant or license holder resides.
3-13 Judicial review is under the substantial evidence rule. An appeal
3-14 may be taken from the court as in other civil cases. [The
3-15 department shall give written notice to each applicant for a
3-16 handgun license of any denial, revocation, or suspension of that
3-17 license. Not later than the 30th day after the notice is received
3-18 by the applicant, according to the records of the department, the
3-19 applicant or license holder may request a hearing on the denial,
3-20 revocation, or suspension. The applicant must make a written
3-21 request for a hearing addressed to the department at its Austin
3-22 address. The request for hearing must reach the department in
3-23 Austin prior to the 30th day after the date of receipt of the
3-24 written notice. On receipt of a request for hearing from a license
3-25 holder or applicant, the department shall promptly schedule a
3-26 hearing in the appropriate justice court in the county of residence
3-27 of the applicant or license holder. The justice court shall
4-1 conduct a hearing to review the denial, revocation, or suspension
4-2 of the license. In a proceeding under this section, a justice of
4-3 the peace shall act as an administrative hearing officer. A
4-4 hearing under this section is not subject to Chapter 2001
4-5 (Administrative Procedure Act). A district attorney or county
4-6 attorney, the attorney general, or a designated member of the
4-7 department may represent the department.]
4-8 [(b) The department, on receipt of a request for hearing,
4-9 shall file the appropriate petition in the justice court selected
4-10 for the hearing and send a copy of that petition to the applicant
4-11 or license holder at the address contained in departmental records.
4-12 A hearing under this section must be scheduled within 30 days of
4-13 receipt of the request for a hearing. The hearing shall be held
4-14 expeditiously but in no event more than 60 days after the date that
4-15 the applicant or license holder requested the hearing. The date of
4-16 the hearing may be reset on the motion of either party, by
4-17 agreement of the parties, or by the court as necessary to
4-18 accommodate the court's docket.]
4-19 [(c) The justice court shall determine if the denial,
4-20 revocation, or suspension is supported by a preponderance of the
4-21 evidence. Both the applicant or license holder and the department
4-22 may present evidence. The court shall affirm the denial,
4-23 revocation, or suspension if the court determines that denial,
4-24 revocation, or suspension is supported by a preponderance of the
4-25 evidence. If the court determines that the denial, revocation, or
4-26 suspension is not supported by a preponderance of the evidence,
4-27 the court shall order the department to immediately issue or return
5-1 the license to the applicant or license holder.]
5-2 (b) [(d)] A proceeding under this section is subject to
5-3 Chapter 105, Civil Practice and Remedies Code, relating to fees,
5-4 expenses, and attorney's fees.
5-5 (c) [(e) A party adversely affected by the court's ruling
5-6 following a hearing under this section may appeal the ruling by
5-7 filing within 30 days after the ruling a petition in a county court
5-8 at law in the county in which the applicant or license holder
5-9 resides or, if there is no county court at law in the county, in
5-10 the county court of the county. A person who appeals under this
5-11 section must send by certified mail a copy of the person's
5-12 petition, certified by the clerk of the court in which the petition
5-13 is filed, to the appropriate division of the department at its
5-14 Austin headquarters. The trial on appeal shall be a trial de novo
5-15 without a jury. A district or county attorney or the attorney
5-16 general may represent the department.]
5-17 [(f)] A suspension of a license may not be probated.
5-18 (d) [(g) If an applicant or a license holder does not
5-19 petition the justice court, a denial becomes final and a revocation
5-20 or suspension takes effect on the 30th day after receipt of written
5-21 notice.]
5-22 [(h)] The department may use and introduce into evidence
5-23 certified copies of governmental records to establish the existence
5-24 of certain events that could result in the denial, revocation, or
5-25 suspension of a license under this subchapter, including records
5-26 regarding convictions, judicial findings regarding mental
5-27 competency, judicial findings regarding chemical dependency, or
6-1 other matters that may be established by governmental records that
6-2 have been properly authenticated.
6-3 SECTION 3. Section 411.186, Government Code, is amended to
6-4 read as follows:
6-5 Sec. 411.186. REVOCATION. (a) A license may be revoked
6-6 under this section if the license holder:
6-7 (1) was not entitled to the license at the time it was
6-8 issued;
6-9 (2) gave false information on the application;
6-10 (3) subsequently becomes ineligible for a license
6-11 under Section 411.172, unless the sole basis for the ineligibility
6-12 is that the license holder is charged with the commission of a
6-13 Class A misdemeanor or of a Class B misdemeanor [or an offense]
6-14 under Section 20.02 or 22.07 [42.01], Penal Code, or of a felony
6-15 under an information or indictment;
6-16 (4) is convicted of an offense under Section 46.035,
6-17 Penal Code; or
6-18 (5) is determined by the department to have engaged in
6-19 conduct constituting a reason to suspend a license listed in
6-20 Section 411.187(a) after the person's license has been previously
6-21 suspended twice for the same reason.
6-22 (b) If a peace officer believes a reason listed in
6-23 Subsection (a) to revoke a license exists, the officer shall
6-24 prepare an affidavit on a form provided by the department stating
6-25 the reason for [the] revocation of the license and giving the
6-26 department all of the information available to the officer at the
6-27 time of the preparation of the form. The officer shall attach the
7-1 officer's reports relating to the license holder to the form and
7-2 send the form and attachments to the appropriate division of the
7-3 department at its Austin headquarters not later than the fifth
7-4 working day after the date the form is prepared. If the department
7-5 proposes to revoke the license, the department [The officer] shall
7-6 provide notice of the proposed revocation to the license holder and
7-7 shall send a copy of the form and the attachments to the license
7-8 holder. The [If the license holder has not surrendered the license
7-9 or the license was not seized as evidence, the] license holder
7-10 shall surrender the license to the appropriate division of the
7-11 department not later than the 10th day after the date the license
7-12 holder receives the notice of the proposed revocation from the
7-13 department, unless the license holder requests a hearing under
7-14 [from the department. The license holder may request that the
7-15 justice court in the justice court precinct in which the license
7-16 holder resides review the revocation as provided by] Section
7-17 411.180. [If a request is made for the justice court to review the
7-18 revocation and hold a hearing, the license holder shall surrender
7-19 the license on the date an order of revocation is entered by the
7-20 justice court.]
7-21 (c) A license holder whose license is surrendered or revoked
7-22 for a reason listed in this section may reapply as a new applicant
7-23 for the issuance of a license under this subchapter after the
7-24 second anniversary of the date of the surrender or revocation if
7-25 the cause for surrender or revocation does not exist on the date of
7-26 the second anniversary. If the cause for surrender or revocation
7-27 exists on the date of the second anniversary after the date of
8-1 surrender or revocation, the license holder may not apply for a new
8-2 license until the cause for surrender or revocation no longer
8-3 exists and has not existed for a period of two years.
8-4 SECTION 4. Section 411.187, Government Code, is amended by
8-5 amending Subsections (a) and (b) and adding Subsection (d) to read
8-6 as follows:
8-7 (a) A license may be suspended under this section if the
8-8 license holder:
8-9 (1) is charged with the commission of a Class A
8-10 misdemeanor or of a Class B misdemeanor [or an offense] under
8-11 Section 20.02 or 22.07 [42.01], Penal Code, or of a felony under an
8-12 information or indictment;
8-13 (2) fails to display a license as required by Section
8-14 411.205;
8-15 (3) fails to notify the department of a change of
8-16 address or name as required by Section 411.181;
8-17 (4) carries a concealed handgun under the authority of
8-18 this subchapter of a different category than the license holder is
8-19 licensed to carry; or
8-20 (5) fails to return a previously issued license after
8-21 a license is modified as required by Section 411.184(d).
8-22 (b) If a peace officer believes a reason listed in
8-23 Subsection (a) to suspend a license exists, the officer shall
8-24 prepare an affidavit on a form provided by the department stating
8-25 the reason for [the] suspension of the license and giving the
8-26 department all of the information available to the officer at the
8-27 time of the preparation of the form. The officer shall attach the
9-1 officer's reports relating to the license holder to the form and
9-2 send the form and the attachments to the appropriate division of
9-3 the department at its Austin headquarters not later than the fifth
9-4 working day after the date the form is prepared. If the department
9-5 proposes to suspend the license, the department [The officer] shall
9-6 provide notice of the proposed suspension to the license holder and
9-7 shall send a copy of the form and the attachments to the license
9-8 holder. The [If the license holder has not surrendered the
9-9 license or the license was not seized as evidence, the] license
9-10 holder shall surrender the license to the appropriate division of
9-11 the department not later than the 10th day after the date the
9-12 license holder receives the notice of the proposed suspension from
9-13 the department unless the license holder requests a hearing under
9-14 [from the department. The license holder may request that the
9-15 justice court in the justice court precinct in which the license
9-16 holder resides review the suspension as provided by] Section
9-17 411.180.
9-18 (d) If the department receives a license surrendered under
9-19 this section, the department shall return the license to the
9-20 license holder immediately after expiration of the period for which
9-21 a suspension would otherwise be required under Subsection (c). [If
9-22 a request is made for the justice court to review the suspension
9-23 and hold a hearing, the license holder shall surrender the license
9-24 on the date an order of suspension is entered by the justice
9-25 court.]
9-26 SECTION 5. Section 411.201(c), Government Code, is amended
9-27 to read as follows:
10-1 (c) An active judicial officer is eligible for a license to
10-2 carry a concealed handgun under the authority of this subchapter.
10-3 A retired judicial officer is eligible for a license to carry a
10-4 concealed handgun under the authority of this subchapter if the
10-5 officer:
10-6 (1) has not been convicted of a felony;
10-7 (2) has not, in the five years preceding the date of
10-8 application, been convicted of a Class A misdemeanor or of a Class
10-9 B misdemeanor under Section 20.02 or 22.07, Penal Code;
10-10 (3) is not charged with the commission of a Class A
10-11 misdemeanor or of a Class B misdemeanor under Section 20.02 or
10-12 22.07, Penal Code, or of a felony under an information or
10-13 indictment;
10-14 (4) is not a chemically dependent person; and
10-15 (5) is not a person of unsound mind.
10-16 SECTION 6. (a) In accordance with Section 311.031(c),
10-17 Government Code, which gives effect to a substantive amendment
10-18 enacted by the same legislature that codifies the amended statute,
10-19 the text of Sections 411.172(a), 411.186(a), and 411.187(a),
10-20 Government Code, as set out in this Act, gives effect to changes
10-21 made by Chapters 1261 and 1423, Acts of the 75th Legislature,
10-22 Regular Session, 1997.
10-23 (b) To the extent of any conflict, this Act prevails over
10-24 another Act of the 76th Legislature, Regular Session, 1999,
10-25 relating to nonsubstantive additions and corrections in enacted
10-26 codes.
10-27 SECTION 7. The change in law made by this Act to the
11-1 administrative and judicial review of certain decisions relating to
11-2 the denial, suspension, or revocation of a license to carry a
11-3 concealed handgun apply only to an administrative or judicial
11-4 review initiated on or after the effective date of this Act. An
11-5 administrative or judicial review initiated before the effective
11-6 date of this Act is covered by the law in effect when the review is
11-7 initiated, and the former law is continued in effect for that
11-8 purpose.
11-9 SECTION 8. This Act takes effect September 1, 1999.
11-10 SECTION 9. The importance of this legislation and the
11-11 crowded condition of the calendars in both houses create an
11-12 emergency and an imperative public necessity that the
11-13 constitutional rule requiring bills to be read on three several
11-14 days in each house be suspended, and this rule is hereby suspended.