81R3905 SJM-D

By: Van de Putte S.B. No. 651

A BILL TO BE ENTITLED

AN ACT

relating to restrictions on the use of a stun gun; providing certain criminal penalties and defenses to prosecution.

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

SECTION 1. Section 46.01, Penal Code, is amended by adding Subdivisions (17) and (18) to read as follows:

(17) "Stun gun" means a device that is intended, designed, made, or adapted to incapacitate a person by inflicting an electrical charge through the emission of a projectile or conductive stream.

(18) "Recognized state" means another state with which the attorney general of this state, with the approval of the governor of this state, negotiated an agreement after determining that the other state:

(A) has firearm proficiency requirements for peace officers; and

(B) fully recognizes the right of peace officers commissioned in this state to carry weapons in the other state.

SECTION 2. Section 46.03, Penal Code, is amended by adding Subsections (j) and (k) to read as follows:

(j) It is a defense to prosecution under this section that the actor possessed a stun gun and was, at the time of the offense:

(1) a license holder under Subchapter H-1, Chapter 411, Government Code, who engaged in the conduct after successfully completing the training described by Section 411.223, Government Code; or

(2) a commissioned security officer registered with the Private Security Bureau of the Department of Public Safety who engaged in the conduct while traveling to or from the actor's place of assignment or in the actual discharge of duties as a commissioned security officer.

(k) It is an exception to the application of this section that the actor possessed a stun gun and was, at the time of the offense, a peace officer, including a commissioned peace officer of a recognized state and a special investigator under Article 2.122, Code of Criminal Procedure, who was authorized by law to carry a weapon.

SECTION 3. Section 46.05, Penal Code, is amended by amending Subsections (a) and (b) and adding Subsections (h) and (i) to read as follows:

(a) A person commits an offense if he intentionally or knowingly possesses, manufactures, transports, repairs, or sells:

(1) an explosive weapon;

(2) a machine gun;

(3) a short-barrel firearm;

(4) a firearm silencer;

(5) a switchblade knife;

(6) knuckles;

(7) armor-piercing ammunition;

(8) a chemical dispensing device; [or]

(9) a zip gun; or

(10) a stun gun.

(b) It is a defense to prosecution under Subsections (a)(1)-(9) [this section] that the actor's conduct was incidental to the performance of official duty by the armed forces or national guard, a governmental law enforcement agency, or a correctional facility.

(h) It is a defense to prosecution under Subsection (a)(10) that the actor was, at the time of the offense:

(1) a license holder under Subchapter H-1, Chapter 411, Government Code, who engaged in the conduct after successfully completing the training described by Section 411.223, Government Code; or

(2) a commissioned security officer registered with the Private Security Bureau of the Department of Public Safety who engaged in the conduct in the actual discharge of duties as a commissioned security officer.

(i) It is an exception to the application of Subsection (a)(10) that the actor was, at the time of the offense, a peace officer, including a commissioned peace officer of a recognized state and a special investigator under Article 2.122, Code of Criminal Procedure, who was authorized by law to carry a weapon.

SECTION 4. Chapter 411, Government Code, is amended by adding Subchapter H-1 to read as follows:

SUBCHAPTER H-1. LICENSE TO CARRY A STUN GUN

Sec. 411.220. DEFINITIONS. In this subchapter, "recognized state" and "stun gun" have the meanings assigned by Section 46.01, Penal Code.

Sec. 411.221. LICENSE TO CARRY A CONCEALED STUN GUN. The department by rule shall establish a procedure for a person to obtain a license to carry a stun gun.

Sec. 411.222. PERSONS EXEMPT FROM LICENSING. A person is not required to obtain a license under this chapter if the person is a peace officer, including a commissioned peace officer of a recognized state and a special investigator under Article 2.122, Code of Criminal Procedure, who is authorized by law to carry a weapon.

Sec. 411.223. STANDARDS AND PROCEDURAL REQUIREMENTS. In establishing a procedure under Section 411.221, the department shall require an applicant for a license under this subchapter to meet standards and satisfy procedural requirements that are substantially similar to the standards and procedural requirements for obtaining a license to carry a concealed handgun described by the following sections of Subchapter H:

(1) eligibility (Section 411.172);

(2) application (Section 411.174);

(3) issuance or denial of license (Section 411.177);

(4) form of license (Section 411.179(a));

(5) notification of denial, revocation, or suspension of license; review (Section 411.180);

(6) expiration (Section 411.183);

(7) modification (Section 411.184);

(8) renewal (Section 411.185);

(9) revocation (Section 411.186); and

(10) suspension of license (Section 411.187).

Sec. 411.224. STUN GUN PROFICIENCY AND TRAINING. (a) The director by rule shall establish minimum standards for stun gun proficiency and shall develop and make widely available throughout the state a course to teach stun gun proficiency and an examination to measure stun gun proficiency. The examination to measure stun gun proficiency must require an actual demonstration by the applicant of the applicant's ability to safely and proficiently use a stun gun.

(b) Except as provided by Subsection (c), the department shall charge a fee for the training offered under this section.

(c) The director by rule shall establish minimum standards for the certification of stun gun instructors. An applicant for certification as a stun gun instructor under this subsection must be a peace officer employed by the department and must successfully complete the training offered under this section before the department may certify the applicant as a stun gun instructor. An applicant for certification as a stun gun instructor is not required to pay a fee for the training under this section.

Sec. 411.225. OTHER RULES AND PROCEDURES. The department shall adopt any other rule or establish any other procedure necessary or appropriate to administer this subchapter.

Sec. 411.226. CONFIDENTIALITY OF RECORDS. The department shall disclose to a criminal justice agency information contained in its files and records regarding whether a named individual or any individual named in a specified list is licensed under this subchapter. The department shall, on written request and payment of a reasonable fee to cover costs of copying, disclose to any other individual whether a named individual or any individual whose full name is listed on a specified written list is licensed under this subchapter. Information on an individual subject to disclosure under this section includes the individual's name, date of birth, gender, race, and zip code. Except as otherwise provided by this section, all other records maintained under this subchapter are confidential and are not subject to mandatory disclosure under the open records law, Chapter 552, except that the applicant or license holder may be furnished a copy of disclosable records on request and the payment of a reasonable fee. The department shall notify a license holder of any request that is made for information relating to the license holder under this section and provide the name of the person or agency making the request. This section does not prohibit the department from making public and distributing to the public at no cost lists of individuals who are certified as stun gun instructors by the department.

Sec. 411.227. DISPLAYING LICENSE; PENALTY. (a) If a license holder is carrying a stun gun on or about the license holder's person when a magistrate or a peace officer demands that the license holder display identification, the license holder shall display both the license holder's driver's license or identification certificate issued by the department and the license holder's license issued under this subchapter. A person who fails or refuses to display the license and identification as required by this subsection is subject to suspension of the person's license as provided by department rule adopted under this subchapter.

(b) A person commits an offense if the person fails or refuses to display the license and identification as required by Subsection (a) after previously having had the person's license suspended for a violation of that subsection. An offense under this subsection is a Class B misdemeanor.

Sec. 411.228. AUTHORITY OF PEACE OFFICER TO DISARM. A peace officer who is acting in the lawful discharge of the officer's official duties may disarm a license holder at any time the officer reasonably believes it is necessary for the protection of the license holder, the officer, or another individual. The peace officer shall return the stun gun to the license holder before discharging the license holder from the scene if the officer determines that the license holder is not a threat to the officer, the license holder, or another individual and if the license holder has not violated any provision of this subchapter or committed any other violation that results in the arrest of the license holder.

SECTION 5. The public safety director of the Department of Public Safety shall adopt the rules required by Subchapter H-1, Chapter 411, Government Code, as added by this Act, not later than November 1, 2009.

SECTION 6. (a) Except as provided by Subsection (b) of this section, this Act takes effect September 1, 2009.

(b) Sections 1, 2, and 3 of this Act take effect March 1, 2010.