81R9490 PEP-F

By: Merritt H.B. No. 3987

A BILL TO BE ENTITLED

AN ACT

relating to the administration of certain provisions affecting the licensing of persons to carry a concealed handgun.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 411.1711, Government Code, is amended to read as follows:

Sec. 411.1711. CERTAIN EXEMPTIONS FROM CONVICTIONS. A person is not convicted, as that term is defined by Section 411.171, if an order of deferred adjudication was entered against the person on a date not less than 10 years preceding the date of the person's application for a license under this subchapter unless the order of deferred adjudication was entered against the person for:

(1) an offense under:

(A) Title 5, Penal Code;

(B) [, or] Chapter 25 or 29, Penal Code; or

(C) Section 30.02, 38.112, 38.17, 42.072, 42.091, 42.10, 43.04, 43.05, 43.24(b)(3), 43.25, 43.26, 49.07, or 49.08, Penal Code; or

(2) an offense under the laws of another state if the offense contains elements that are substantially similar to the elements of an offense listed in Subdivision (1).

SECTION 2. Sections 411.172(a), (d), and (e), Government Code, are amended to read as follows:

(a) A person is eligible for a license to carry a concealed handgun if the person:

(1) is a legal resident of this state, another state, or the United States, or is residing in the United States under a permanent resident visa, [for the six-month period preceding the date of application under this subchapter] or is otherwise eligible for a license under Section 411.173(a);

(2) is at least 21 years of age;

(3) has not been convicted of a felony;

(4) is not charged with the commission of a Class A or Class B misdemeanor or equivalent offense, or of an offense under Section 42.01, Penal Code, or equivalent offense, or of a felony under an information or indictment;

(5) is not a fugitive from justice for a felony or a Class A or Class B misdemeanor or equivalent offense;

(6) is not a chemically dependent person;

(7) is not incapable of exercising sound judgment with respect to the proper use and storage of a handgun;

(8) has not, in the five years preceding the date of application, been convicted of a Class A or Class B misdemeanor or equivalent offense or of an offense under Section 42.01, Penal Code, or equivalent offense;

(9) is fully qualified under applicable federal and state law to purchase a handgun;

(10) has not been finally determined to be delinquent in making a child support payment administered or collected by the attorney general;

(11) has not been finally determined to be delinquent in the payment of a tax or other money collected by the comptroller, the tax collector of a political subdivision of the state, or any agency or subdivision of the state;

(12) has not been finally determined to be in default on a loan made under Chapter 57, Education Code;

(13) is not currently restricted under a court protective order or subject to a restraining order affecting the spousal relationship, other than a restraining order solely affecting property interests;

(14) has not, in the 10 years preceding the date of application, been adjudicated as having engaged in delinquent conduct violating a penal law of the grade of felony; and

(15) has not made any material misrepresentation, or failed to disclose any material fact, in an application submitted pursuant to Section 411.174 [or in a request for application submitted pursuant to Section 411.175].

(d) For purposes of Subsection (a)(7), a person is incapable of exercising sound judgment with respect to the proper use and storage of a handgun if the person:

(1) has been diagnosed by a licensed physician as suffering from a psychiatric disorder or condition that causes or is likely to cause substantial impairment in judgment, mood, perception, impulse control, or intellectual ability;

(2) suffers from a psychiatric disorder or condition described by Subdivision (1) that:

(A) is in remission but is reasonably likely to redevelop at a future time; or

(B) requires continuous medical treatment to avoid redevelopment;

(3) has been diagnosed by a licensed physician, determined by a review board or similar authority, or declared by a court to be incompetent to manage the person's own affairs; or

(4) has entered in a criminal proceeding a plea of not guilty by reason of insanity.

(e) The following constitutes evidence that a person has a psychiatric disorder or condition described by Subsection (d)(1):

(1) involuntary psychiatric hospitalization [in the preceding five-year period];

(2) psychiatric hospitalization [in the preceding two-year period];

(3) inpatient or residential substance abuse treatment in the preceding five-year period;

(4) diagnosis in the preceding five-year period by a licensed physician that the person is dependent on alcohol, a controlled substance, or a similar substance; or

(5) diagnosis at any time by a licensed physician that the person suffers or has suffered from a psychiatric disorder or condition consisting of or relating to:

(A) schizophrenia or delusional disorder;

(B) bipolar disorder;

(C) chronic dementia, whether caused by illness, brain defect, or brain injury;

(D) dissociative identity disorder;

(E) intermittent explosive disorder; or

(F) antisocial personality disorder.

SECTION 3. Sections 411.174(a) and (b), Government Code, are amended to read as follows:

(a) An applicant for a license to carry a concealed handgun must submit to the director's designee described by Section 411.176:

(1) a completed application on a form provided by the department that requires only the information listed in Subsection (b);

(2) one or more [two recent color passport] photographs of the applicant that meet the requirements of the department [, except that an applicant who is younger than 21 years of age must submit two recent color passport photographs in profile of the applicant];

(3) a certified copy of the applicant's birth certificate or certified proof of age;

(4) proof of residency in this state;

(5) two complete sets of legible and classifiable fingerprints of the applicant taken by a person appropriately trained in recording fingerprints who is employed by a law enforcement agency or by a private entity designated by a law enforcement agency as an entity qualified to take fingerprints of an applicant for a license under this subchapter;

(6) a nonrefundable application and license fee of $140 paid to the department;

(7) evidence of [a] handgun proficiency, in the form and manner required by the department [certificate described by Section 411.189];

(8) an affidavit signed by the applicant stating that the applicant:

(A) has read and understands each provision of this subchapter that creates an offense under the laws of this state and each provision of the laws of this state related to use of deadly force; and

(B) fulfills all the eligibility requirements listed under Section 411.172; and

(9) a form executed by the applicant that authorizes the director to make an inquiry into any noncriminal history records that are necessary to determine the applicant's eligibility for a license under Section 411.172(a).

(b) An applicant must provide on the application a statement of the applicant's:

(1) full name and place and date of birth;

(2) race and sex;

(3) residence and business addresses for the preceding five years;

(4) hair and eye color;

(5) height and weight;

(6) driver's license number or identification certificate number issued by the department;

(7) criminal history record information of the type maintained by the department under this chapter, including a list of offenses for which the applicant was arrested, charged, or under an information or indictment and the disposition of the offenses; and

(8) history [during the preceding five years], if any, of treatment received by, commitment to, or residence in:

(A) a drug or alcohol treatment center licensed to provide drug or alcohol treatment under the laws of this state or another state, but only if the treatment, commitment, or residence occurred during the preceding five years; or

(B) a psychiatric hospital.

SECTION 4. Section 411.176, Government Code, is amended to read as follows:

Sec. 411.176. REVIEW OF APPLICATION MATERIALS. (a) On receipt of [the] application materials by the department at its Austin headquarters, the department shall conduct the appropriate criminal history record check of the applicant through its computerized criminal history system. Not later than the 30th day after the date the department receives the application materials, the department shall forward the materials to the director's designee in the geographical area of the applicant's residence so that the designee may conduct the investigation described by Subsection (b). For purposes of this section, the director's designee may be a noncommissioned employee of the department.

(b) The director's designee as needed shall conduct an additional criminal history record check of the applicant and an investigation of the applicant's local official records to verify the accuracy of the application materials. The director's designee may access any records necessary for purposes of this subsection. The scope of the record check and the investigation are at the sole discretion of the department, except that the director's designee shall complete the record check and investigation not later than the 60th day after the date the department receives the application materials. The department shall send a fingerprint card to the Federal Bureau of Investigation for a national criminal history check of the applicant. On completion of the investigation, the director's designee shall return all materials and the result of the investigation to the appropriate division of the department at its Austin headquarters.

(c) The director's designee may submit to the appropriate division of the department, at the department's Austin headquarters, along with the application materials a written recommendation for disapproval of the application, accompanied by an affidavit stating personal knowledge or naming persons with personal knowledge of a ground for denial under Section 411.172. The director's designee [in the appropriate geographical area] may also submit the application and the recommendation that the license be issued.

(d) On receipt at the department's Austin headquarters of the application materials and the result of the investigation by the director's designee, the department shall conduct any further record check or investigation the department determines is necessary if a question exists with respect to the accuracy of the application materials or the eligibility of the applicant, except that the department shall complete the record check and investigation not later than the 180th day after the date the department receives the application materials from the applicant.

SECTION 5. Sections 411.177(a) and (b), Government Code, are amended to read as follows:

(a) The department shall issue a license to carry a concealed handgun to an applicant if the applicant meets all the eligibility requirements and submits all the application materials. The department may issue a license to carry handguns only of the categories for which the applicant has demonstrated proficiency in the form and manner required by the department [indicated on the applicant's certificate of proficiency issued under Section 411.189]. The department shall administer the licensing procedures in good faith so that any applicant who meets all the eligibility requirements and submits all the application materials shall receive a license. The department may not deny an application on the basis of a capricious or arbitrary decision by the department.

(b) The department shall, not later than the 60th day after the date of the receipt by the director's designee of the completed application materials:

(1) issue the license;

(2) notify the applicant in writing that the application was denied:

(A) on the grounds that the applicant failed to qualify under the criteria listed in Section 411.172;

(B) based on the affidavit of the director's designee submitted to the department under Section 411.176(c) [411.176(b)]; or

(C) based on the affidavit of the qualified handgun instructor submitted to the department under Section 411.188(j) [411.189(c)]; or

(3) notify the applicant in writing that the department is unable to make a determination regarding the issuance or denial of a license to the applicant within the 60-day period prescribed by this subsection and include in that notification an explanation of the reason for the inability and an estimation of the amount of time the department will need to make the determination.

SECTION 6. Section 411.184(a), Government Code, is amended to read as follows:

(a) To modify a license to allow a license holder to carry a handgun of a different category than the license indicates, the license holder must:

(1) complete a proficiency examination as provided by Section 411.188(e);

[(2) obtain a handgun proficiency certificate under Section 411.189 not more than six months before the date of application for a modified license;] and

(2) [(3)] submit to the department:

(A) an application for a modified license on a form provided by the department;

(B) evidence of [a copy of the] handgun proficiency, in the form and manner required by the department [certificate];

(C) payment of a modified license fee of $25; and

(D) one or more [two recent color passport] photographs of the license holder that meet the requirements of the department [, except that an applicant who is younger than 21 years of age must submit two recent color passport photographs in profile of the applicant].

SECTION 7. Section 411.185(a), Government Code, is amended to read as follows:

(a) To renew a license, a license holder must:

(1) complete a continuing education course in handgun proficiency under Section 411.188(c) within the six-month period preceding:

(A) the date of application for renewal, for a first or second renewal; and

(B) the date of application for renewal or the date of application for the preceding renewal, for a third or subsequent renewal, to ensure that the license holder is not required to complete the course more than once in any 10-year period;

[(2) obtain a handgun proficiency certificate under Section 411.189 within the six-month period preceding:

[(A) the date of application for renewal, for a first or second renewal; and

[(B) the date of application for renewal or the date of application for the preceding renewal, for a third or subsequent renewal, to ensure that the license holder is not required to obtain the certificate more than once in any 10-year period;] and

(2) [(3)] submit to the department:

(A) an application for renewal on a form provided by the department;

(B) evidence of [a copy of the] handgun proficiency, in the form and manner required by the department [certificate];

(C) payment of a nonrefundable renewal fee as set by the department; and

(D) one or more [two recent color passport] photographs of the applicant that meet the requirements of the department.

SECTION 8. Section 411.186(a), Government Code, is amended to read as follows:

(a) The department shall revoke a [A] license [may be revoked] under this section if the license holder:

(1) was not entitled to the license at the time it was issued;

(2) gave false information on the application;

(3) subsequently becomes ineligible for a license under Section 411.172, unless the sole basis for the ineligibility is that the license holder is charged with the commission of a Class A or Class B misdemeanor or equivalent offense, or of an offense under Section 42.01, Penal Code, or equivalent offense, or of a felony under an information or indictment;

(4) is convicted of an offense under Section 46.035, Penal Code;

(5) is determined by the department to have engaged in conduct constituting a reason to suspend a license listed in Section 411.187(a) after the person's license has been previously suspended twice for the same reason; or

(6) submits an application fee that is dishonored or reversed.

SECTION 9. Sections 411.187(a) and (c), Government Code, are amended to read as follows:

(a) The department shall suspend a [A] license [may be suspended] under this section if the license holder:

(1) is charged with the commission of a Class A or Class B misdemeanor or equivalent offense, or of an offense under Section 42.01, Penal Code, or equivalent offense, or of a felony under an information or indictment;

(2) fails to display a license as required by Section 411.205;

(3) fails to notify the department of a change of address or name as required by Section 411.181;

(4) carries a concealed handgun under the authority of this subchapter of a different category than the license holder is licensed to carry;

(5) fails to return a previously issued license after a license is modified as required by Section 411.184(d);

(6) commits an act of family violence and is the subject of an active protective order rendered under Title 4, Family Code; or

(7) is arrested for an offense involving family violence or an offense under Section 42.072, Penal Code, and is the subject of an order for emergency protection issued under Article 17.292, Code of Criminal Procedure.

(c) The department shall suspend a [A] license [may be suspended] under this section:

(1) for 30 days, if the person's license is subject to suspension for a reason listed in Subsection (a)(3), (4), or (5), except as provided by Subdivision (3);

(2) for 90 days, if the person's license is subject to suspension for a reason listed in Subsection (a)(2), except as provided by Subdivision (3);

(3) for not less than one year and not more than three years, if the person's license:

(A) is subject to suspension for a reason listed in Subsection (a), other than the reason listed in Subsection (a)(1); [,]and

(B) [the person's license] has been previously suspended for the same reason;

(4) until dismissal of the charges, if the person's license is subject to suspension for the reason listed in Subsection (a)(1); or

(5) for the duration of or the period specified by:

(A) the protective order issued under Title 4, Family Code, if the person's license is subject to suspension for the reason listed in Subsection (a)(6); or

(B) the order for emergency protection issued under Article 17.292, Code of Criminal Procedure, if the person's license is subject to suspension for the reason listed in Subsection (a)(7).

SECTION 10. Section 411.188, Government Code, is amended by amending Subsections (a), (g), (h), and (i) and adding Subsection (j) to read as follows:

(a) The director by rule shall establish minimum standards for handgun proficiency and shall develop a course to teach handgun proficiency and examinations to measure handgun proficiency. The course to teach handgun proficiency must contain training sessions divided into two parts. One part of the course must be classroom instruction and the other part must be range instruction and an actual demonstration by the applicant of the applicant's ability to safely and proficiently use the applicable category of handgun [for which the applicant seeks certification]. An applicant must be able to demonstrate [may not be certified unless the applicant demonstrates], at a minimum, the degree of proficiency that is required to effectively operate a handgun of .32 caliber or above. The department shall distribute the standards, course requirements, and examinations on request to any qualified handgun instructor.

(g) A person who wishes to obtain or renew a license to carry a concealed handgun must apply in person to a qualified handgun instructor to take the appropriate course in handgun proficiency and [,] demonstrate handgun proficiency as required by the department[, and obtain a handgun proficiency certificate as described by Section 411.189].

(h) A license holder who wishes to modify a license to allow the license holder to carry a handgun of a different category than the license indicates must apply in person to a qualified handgun instructor to demonstrate the required knowledge and proficiency [to obtain a handgun proficiency certificate] in that category [as described by Section 411.189].

(i) A certified firearms instructor of the department may monitor any class or training presented by a qualified handgun instructor. A qualified handgun instructor shall cooperate with the department in the department's efforts to monitor the presentation of training by the qualified handgun instructor. A qualified handgun instructor shall make available for inspection to the department any and all records maintained by a qualified handgun instructor under this subchapter. The qualified handgun instructor shall keep a record of all [certificates of handgun proficiency issued by the qualified handgun instructor and other] information required by department rule.

(j) A qualified handgun instructor may submit to the department a written recommendation for disapproval of the application for a license, renewal, or modification of a license, accompanied by an affidavit stating personal knowledge or naming persons with personal knowledge of facts that lead the instructor to believe that an applicant does not possess the required handgun proficiency. The department may use a written recommendation submitted under this subsection as the basis for denial of a license only if the department determines that the recommendation is made in good faith and is supported by a preponderance of the evidence. The department shall make a determination under this subsection not later than the 45th day after the date the department receives the written recommendation. The 60-day period in which the department must take action under Section 411.177(b) is extended one day for each day a determination is pending under this subsection.

SECTION 11. Sections 411.199(a) and (e), Government Code, are amended to read as follows:

(a) A person who is licensed as a peace officer under Chapter 1701, Occupations Code, [415] and who has been employed full-time as a peace officer by a law enforcement agency may apply for a license under this subchapter at any time after retirement.

(e) A retired peace officer who obtains a license under this subchapter must maintain, for the category of weapon licensed, the proficiency required for a peace officer under Section 1701.355, Occupations Code [415.035]. The department or a local law enforcement agency shall allow a retired peace officer of the department or agency an opportunity to annually demonstrate the required proficiency. The proficiency shall be reported to the department on application and renewal.

SECTION 12. Section 411.1991(a), Government Code, is amended to read as follows:

(a) A person who is licensed as a peace officer under Chapter 1701, Occupations Code, [415] and is employed full-time as a peace officer by a law enforcement agency may apply for a license under this subchapter. The person shall submit to the department two complete sets of legible and classifiable fingerprints and a sworn statement of the head of the law enforcement agency employing the applicant. A head of a law enforcement agency may not refuse to issue a statement under this subsection. If the applicant alleges that the statement is untrue, the department shall investigate the validity of the statement. The statement must include:

(1) the name and rank of the applicant;

(2) whether the applicant has been accused of misconduct at any time during the applicant's period of employment with the agency and the disposition of that accusation;

(3) a description of the physical and mental condition of the applicant;

(4) a list of the types of weapons the applicant has demonstrated proficiency with during the preceding year; and

(5) a recommendation from the agency head that a license be issued to the person under this subchapter.

SECTION 13. Sections 411.201(c) and (d), Government Code, are amended to read as follows:

(c) An active judicial officer is eligible for a license to carry a concealed handgun under the authority of this subchapter. A retired judicial officer is eligible for a license to carry a concealed handgun under the authority of this subchapter if the officer:

(1) has not been convicted of a felony;

(2) has not, in the five years preceding the date of application, been convicted of a Class A or Class B misdemeanor or equivalent offense;

(3) is not charged with the commission of a Class A or Class B misdemeanor or equivalent offense or of a felony under an information or indictment;

(4) is not a chemically dependent person; and

(5) is not a person of unsound mind.

(d) An applicant for a license who is an active or retired judicial officer must submit to the department:

(1) a completed application, including all required affidavits, on a form prescribed by the department;

(2) one or more [two recent color passport] photographs of the applicant that meet the requirements of the department;

(3) two complete sets of legible and classifiable fingerprints of the applicant, including one set taken by a person employed by a law enforcement agency who is appropriately trained in recording fingerprints;

(4) evidence of [a] handgun proficiency, in the form and manner required by the department for an applicant under this section [certificate issued to the applicant as evidence that the applicant successfully completed the proficiency requirements of this subchapter];

(5) [(4)] a nonrefundable application and license fee set by the department in an amount reasonably designed to cover the administrative costs associated with issuance of a license to carry a concealed handgun under this subchapter; and

(6) [(5)] if the applicant is a retired judicial officer,[:

[(A) two complete sets of legible and classifiable fingerprints of the applicant taken by a person employed by a law enforcement agency who is appropriately trained in recording fingerprints; and

[(B)] a form executed by the applicant that authorizes the department to make an inquiry into any noncriminal history records that are necessary to determine the applicant's eligibility for a license under this subchapter.

SECTION 14. Section 411.208, Government Code, is amended by adding Subsection (e) to read as follows:

(e) The immunities granted under Subsection (a) to a qualified handgun instructor do not apply to a cause of action for fraud or a deceptive trade practice.

SECTION 15. Article 17.292(l), Code of Criminal Procedure, is amended to read as follows:

(l) In the order for emergency protection, the magistrate shall [may] suspend a license to carry a concealed handgun issued under Subchapter H, Chapter 411 [Section 411.177], Government Code, that is held by the defendant.

SECTION 16. Section 57.481(c), Education Code, is amended to read as follows:

(c) The corporation shall maintain a system of communication among the appropriate state agencies and entities to reduce loan default claims. To assist the department's determination of eligibility for a handgun license under Subchapter H, Chapter 411, Government Code, the corporation shall provide to the Department of Public Safety updated information regarding persons who are determined to be in default on a student loan guaranteed by the corporation.

SECTION 17. Section 57.491, Education Code, is amended by adding Subsection (f) to read as follows:

(f) Notwithstanding Subsections (e) and (g), the Department of Public Safety may not issue or renew the handgun license of an applicant who is determined to be in default on a student loan guaranteed by the corporation unless the applicant presents to the department a certificate issued by the corporation certifying that the applicant has repaid the student loan in full.

SECTION 18. Section 85.022(d), Family Code, is amended to read as follows:

(d) In a protective order, the court shall [may] suspend a license to carry a concealed handgun issued under Subchapter H, Chapter 411 [Section 411.177], Government Code, that is held by a person found to have committed family violence.

SECTION 19. Section 12.095(e), Health and Safety Code, is amended to read as follows:

(e) The panel may require the applicant or license holder to undergo a medical or other examination at the applicant's or holder's expense. A person who conducts an examination under this subsection may be compelled to testify before the panel and in any subsequent proceedings under Subchapter H, Chapter 411, Government Code, or Subchapter N, Chapter 521, Transportation Code, as applicable, concerning the person's observations and findings.

SECTION 20. Section 12.097(b), Health and Safety Code, is amended to read as follows:

(b) In a subsequent proceeding under Subchapter H, Chapter 411, Government Code, or Subchapter N, Chapter 521, Transportation Code, the medical standards division may provide a copy of the report of the medical advisory board or panel and a medical record or report relating to an applicant or license holder to:

(1) the Department of Public Safety of the State of Texas;

(2) the applicant or license holder; and

(3) the officer who presides at the hearing.

SECTION 21. Sections 411.175, 411.1882, and 411.189, Government Code, are repealed.

SECTION 22. The changes in law made by Sections 411.1711, 411.172, and 411.201(c), Government Code, as amended by this Act, and by Section 57.491, Education Code, as amended by this Act, apply only to the eligibility of a person for the issuance, modification, or renewal of a license, the application for which is made on or after the effective date of this Act. A holder of a license that was issued, modified, or renewed before the effective date of this Act is not disqualified from holding that license solely by reason of this Act.

SECTION 23. The changes in law made by Sections 411.174, 411.176, 411.177, 411.184, 411.185, 411.188, and 411.201(d), Government Code, as amended by this Act, and by the repeal of Sections 411.175, 411.1882, and 411.189, Government Code, apply only to an application for the issuance, modification, or renewal of a license that is submitted to the Department of Public Safety on or after the effective date of this Act. An application submitted before the effective date of this Act is governed by the law in effect when the application was submitted, and the former law is continued in effect for that purpose.

SECTION 24. The changes in law made by this Act to Sections 411.186 and 411.187, Government Code, Article 17.292, Code of Criminal Procedure, and Section 85.022, Family Code, apply only to an administrative or judicial determination concerning the revocation or suspension of a license to carry a concealed handgun that is made on or after the effective date of this Act. An administrative or judicial determination made before the effective date of this Act is covered by the law in effect when the determination was made, and the former law is continued in effect for that purpose.

SECTION 25. The change in law made by Section 411.208, Government Code, as amended by this Act, applies only to a cause of action that accrues on or after the effective date of this Act. A cause of action that accrued before the effective date of this Act is governed by the law in effect immediately before the effective date of this Act, and the former law is continued in effect for that purpose.

SECTION 26. This Act takes effect September 1, 2009.