86R346 SMT-F

By: Moody H.B. No. 131

A BILL TO BE ENTITLED

AN ACT

relating to extreme risk protective orders and the prosecution of the criminal offense of unlawful transfer of a firearm; creating a criminal offense.

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

SECTION 1. Title 1, Code of Criminal Procedure, is amended by adding Chapter 7C to read as follows:

CHAPTER 7C. EXTREME RISK PROTECTIVE ORDER

Art. 7C.01. DEFINITIONS. In this chapter:

(1) "Bodily injury" and "serious bodily injury" have the meanings assigned by Section 1.07, Penal Code.

(2) "Family," "family violence," and "household" have the meanings assigned by Chapter 71, Family Code.

(3) "Firearm" has the meaning assigned by Section 46.01, Penal Code.

(4) "Local mental health authority" has the meaning assigned by Section 571.003, Health and Safety Code.

(5) "Serious mental illness" has the meaning assigned by Section 1355.001, Insurance Code.

Art. 7C.02. APPLICATION FOR EXTREME RISK PROTECTIVE ORDER. (a) An application for a protective order under this chapter may be filed by:

(1) a member of the respondent's family or household;

(2) a parent, guardian, or conservator of a person who is under 18 years of age and a member of the respondent's family or household; or

(3) a prosecuting attorney acting:

(A) on behalf of a person described by Subdivision (1) or (2); or

(B) at the request of a peace officer.

(b) An application must:

(1) include:

(A) detailed allegations, based on personal knowledge of a person described by Subsection (a)(1) or (2) or of a peace officer, regarding any dangerous behavior or conduct exhibited by the respondent as a result of a serious mental illness, including any behavior or conduct related to the respondent's use of firearms;

(B) any relevant medical or mental health information concerning the respondent, including copies of relevant medical or mental health records, if available;

(C) information concerning the quantity, type, and location of any firearms the applicant believes to be in the respondent's possession or control, if any;

(D) any other relevant facts indicating a need for a protective order; and

(E) a statement that the applicant believes the respondent poses an immediate and present danger of causing bodily injury, serious bodily injury, or death to any person, including the respondent, as a result of the respondent's serious mental illness and access to firearms; and

(2) be signed by the applicant under an oath that, to the knowledge and belief of the applicant, the facts and circumstances contained in the application are true.

(c) An application for a protective order under this chapter may be filed in a district court, juvenile court having the jurisdiction of a district court, statutory county court, or constitutional county court in the county in which the applicant or the respondent resides.

Art. 7C.03. CONFIDENTIALITY OF CERTAIN INFORMATION. On receiving an application containing specific medical or mental health information concerning the respondent, the court shall order the clerk to:

(1) strike the information from the public records of the court; and

(2) maintain a confidential record of the information for use only by the court.

Art. 7C.04. TEMPORARY EX PARTE ORDER. (a) If the court finds from the information contained in an application for a protective order under this chapter that there is reasonable cause to believe that the respondent poses an immediate and present danger of causing bodily injury, serious bodily injury, or death to any person, including the respondent, as a result of the respondent's serious mental illness and access to firearms, the court, without further notice to the respondent and without a hearing, may issue a temporary ex parte order prohibiting the respondent from purchasing, owning, possessing, or controlling a firearm.

(b) In a temporary ex parte order, the court may order the respondent to:

(1) relinquish, without delay, any firearms owned by or in the actual or constructive possession or control of the respondent to a law enforcement agency for holding in the manner provided by Article 18.192;

(2) if applicable, surrender to the court the respondent's license to carry a handgun issued under Subchapter H, Chapter 411, Government Code; and

(3) for purposes of determining whether the respondent has a serious mental illness, submit to an examination by the local mental health authority or a disinterested expert who is qualified to diagnose, and experienced in diagnosing, mental illness.

Art. 7C.05. HEARING; ISSUANCE OF PROTECTIVE ORDER. (a) Not later than the 14th day after the later of the date an application is filed or the date a temporary ex parte order is issued, the court shall hold a hearing on the issuance of the protective order.

(b) The court shall provide personal notice of the hearing to the respondent.

(c) In determining whether to issue a protective order under this article, the court:

(1) shall consider:

(A) the results of any examination described by Article 7C.04(b)(3);

(B) any relevant medical or mental health information concerning the respondent;

(C) any history of threats or acts of violence by the respondent directed at any person, including the respondent;

(D) any history of the respondent using, attempting to use, or threatening to use physical force against another person;

(E) any recent violation by the respondent of an order issued:

(i) under Chapter 7A or Article 17.292;

(ii) under Section 6.504 or Chapter 85, Family Code;

(iii) under Chapter 83, Family Code, if the temporary ex parte order has been served on the respondent; or

(iv) by another jurisdiction as provided by Chapter 88, Family Code;

(F) any arrest or conviction of the respondent for:

(i) an offense under Section 42.072, Penal Code; or

(ii) a misdemeanor offense involving violence, including family violence;

(G) any conviction of the respondent for an offense under Section 42.09, 42.091, or 42.092, Penal Code; and

(H) evidence related to the respondent's abuse of a controlled substance or alcohol, including evidence of any treatment for and recovery from abusing a controlled substance or alcohol; and

(2) may consider any other relevant factor including:

(A) any previous violation by the respondent of an order described by Subdivision (1)(E); and

(B) evidence regarding the respondent's recent acquisition of firearms, ammunition, or other deadly weapons.

(d) At the close of the hearing, if the court finds by clear and convincing evidence that the respondent poses an immediate and present danger of causing bodily injury, serious bodily injury, or death to any person, including the respondent, as a result of the respondent's serious mental illness and access to firearms, the court shall issue a protective order that includes a statement of the required finding.

(e) If the court does not make the finding described by Subsection (d), the court shall, as applicable, immediately rescind any temporary ex parte order issued under Article 7C.04 and return the respondent's license to carry a handgun.

Art. 7C.06. CONTENTS OF PROTECTIVE ORDER. In a protective order issued under Article 7C.05, the court shall:

(1) prohibit the person who is subject to the order from purchasing, owning, possessing, or controlling a firearm for the duration of the order; and

(2) order the person to:

(A) relinquish, without delay, any firearms owned by or in the actual or constructive possession or control of the person to a law enforcement agency for holding in the manner provided by Article 18.192;

(B) if applicable, surrender to the court the person's license to carry a handgun issued under Subchapter H, Chapter 411, Government Code; and

(C) if applicable, receive outpatient mental health services if recommended by the local mental health authority or expert after the authority or expert performs an examination described by Article 7C.04(b)(3).

Art. 7C.07. DURATION OF PROTECTIVE ORDER. (a) A protective order issued under Article 7C.05 is effective until the first anniversary of the date the order was issued.

(b) The court may renew a protective order issued under Article 7C.05 for a period not to exceed one year after the order's original expiration date. Before renewing the order the court must hold a hearing and provide personal notice of the hearing to the person who is the subject of the order.

(c) A person who is the subject of a protective order may file a motion not earlier than the 91st day after the date on which the order was initially issued or renewed, as applicable, requesting that the court review the order and determine whether there is a continuing need for the order. After a hearing on the motion, if the court fails to make the finding that there is no continuing need for the order, the order remains in effect until the date the order expires as provided by this article.

(d) At a hearing to renew or rescind a protective order under this article, the court shall consider the factors described by Article 7C.05(c).

Art. 7C.08. NOTICE TO DEPARTMENT OF PUBLIC SAFETY REGARDING ISSUANCE OR EXPIRATION OF ORDER. (a) Not later than the 30th day after the date a protective order is issued under Article 7C.05, the clerk of the issuing court shall provide the following to the Department of Public Safety:

(1) the complete name, race, and sex of the person who is the subject of the order;

(2) any known identifying number of the person, including a social security number, driver's license number, or state identification number;

(3) the person's date of birth; and

(4) if applicable, the person's license to carry a handgun issued under Subchapter H, Chapter 411, Government Code.

(b) Not later than the 30th day after the date the protective order expires under Article 7C.07, the clerk of the issuing court shall notify the Department of Public Safety of the expiration.

Art. 7C.09. APPLICATION OF OTHER LAW. To the extent applicable, except as otherwise provided by this chapter, Title 4, Family Code, applies to a protective order issued under this chapter.

SECTION 2. Chapter 18, Code of Criminal Procedure, is amended by adding Article 18.192 to read as follows:

Art. 18.192. HOLDING AND DISPOSITION OF FIREARM RELINQUISHED UNDER EXTREME RISK PROTECTIVE ORDER. (a) A law enforcement officer who takes possession of a firearm from a person who is the subject of an extreme risk protective order issued under Chapter 7C shall immediately provide the person a written copy of the receipt for the firearm and a written notice of the procedure for the return of a firearm under this article.

(b) Not later than the seventh day after the date a firearm subject to disposition under this article is received, the law enforcement agency holding the firearm shall notify the court that issued the extreme risk protective order that the person who is the subject of the order has relinquished the firearm.

(c) Not later than the 30th day after the date the extreme risk protective order is rescinded or expires, the clerk of the court shall notify the law enforcement agency of the rescission or expiration.

(d) Not later than the 30th day after the date the law enforcement agency holding a firearm subject to disposition under this article receives the notice described by Subsection (c), the law enforcement agency shall conduct a check of state and national criminal history record information to verify whether the person may lawfully possess a firearm under 18 U.S.C. Section 922(g) and under the law of this state.

(e) If the check conducted under Subsection (d) verifies that the person may lawfully possess a firearm, the law enforcement agency shall provide to the person by certified mail written notice stating that the firearm may be returned to the person if the person submits a written request before the 121st day after the date of the notice.

(f) An unclaimed firearm that is received under an extreme risk protective order issued under Chapter 7C may not be destroyed or forfeited to the state.

(g) The law enforcement agency holding the firearm may provide for the firearm to be sold by a person who is a licensed firearms dealer under 18 U.S.C. Section 923 if:

(1) the check conducted under Subsection (d) shows that the person who was the subject of the extreme risk protective order may not lawfully possess a firearm; or

(2) the notice is provided under Subsection (e) and the person who was the subject of the extreme risk protective order does not submit, before the 121st day after the date of the notice, a written request for the return of the firearm.

(h) The proceeds from the sale of a firearm under this article shall be paid to the owner of the seized firearm, less the cost of administering this article with respect to the firearm.

(i) A law enforcement officer or other employee of a law enforcement agency is subject to punishment for contempt of court if the officer or employee violates this article with the intent to withhold a firearm from a person who, at the time the violation occurred:

(1) was the subject of an extreme risk protective order that was rescinded or that expired; and

(2) may lawfully possess the firearm.

SECTION 3. Subchapter D, Chapter 411, Government Code, is amended by adding Section 411.0522 to read as follows:

Sec. 411.0522. INFORMATION CONCERNING EXTREME RISK PROTECTIVE ORDER. (a) The department by rule shall establish a procedure to provide information concerning a person who is the subject of an extreme risk protective order to the Federal Bureau of Investigation for inclusion in the National Instant Criminal Background Check System.

(b) The procedure must require the department to provide any information received under Article 7C.08, Code of Criminal Procedure, to the Federal Bureau of Investigation not later than the 30th day after the date the department received the information.

SECTION 4. Section 411.172(a), Government Code, is amended to read as follows:

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

(1) is a legal resident of this state 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) is not currently:

(A) restricted under a court protective order, including an extreme risk protective order issued under Chapter 7C, Code of Criminal Procedure; or

(B) subject to a restraining order affecting the spousal relationship, other than a restraining order solely affecting property interests;

(13) 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

(14) has not made any material misrepresentation, or failed to disclose any material fact, in an application submitted pursuant to Section 411.174.

SECTION 5. Chapter 37, Penal Code, is amended by adding Section 37.082 to read as follows:

Sec. 37.082. FALSE REPORT REGARDING REQUEST FOR EXTREME RISK PROTECTIVE ORDER. (a) In this section, "prosecuting attorney" means a district attorney, criminal district attorney, or county attorney.

(b) A person commits an offense if, with intent to deceive, the person knowingly makes to a prosecuting attorney or peace officer a false statement relating to a request that a prosecuting attorney file an application for an extreme risk protective order under Chapter 7C, Code of Criminal Procedure.

(c) An offense under this section is a Class B misdemeanor.

SECTION 6. Section 46.06(a), Penal Code, is amended to read as follows:

(a) A person commits an offense if the person:

(1) sells, rents, leases, loans, or gives a handgun to any person knowing that the person to whom the handgun is to be delivered intends to use it unlawfully or in the commission of an unlawful act;

(2) intentionally or knowingly sells, rents, leases, or gives or offers to sell, rent, lease, or give to any child younger than 18 years of age any firearm, club, or location-restricted knife;

(3) intentionally, knowingly, or recklessly sells a firearm or ammunition for a firearm to any person who is intoxicated;

(4) knowingly sells a firearm or ammunition for a firearm to any person who has been convicted of a felony before the fifth anniversary of the later of the following dates:

(A) the person's release from confinement following conviction of the felony; or

(B) the person's release from supervision under community supervision, parole, or mandatory supervision following conviction of the felony;

(5) sells, rents, leases, loans, or gives a handgun to any person knowing that an active protective order is directed to the person to whom the handgun is to be delivered;

(6) sells, rents, leases, loans, or gives a firearm to any person knowing that an active extreme risk protective order under Chapter 7C, Code of Criminal Procedure, is directed to the person to whom the firearm is to be delivered; or

(7) [(6)] knowingly purchases, rents, leases, or receives as a loan or gift from another a handgun while an active protective order is directed to the actor.

SECTION 7. Section 46.06, Penal Code, as amended by this Act, applies only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is governed by the law in effect on the date the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense occurred before that date.

SECTION 8. Not later than October 1, 2019, the Department of Public Safety shall adopt rules as required by Section 411.0522, Government Code, as added by this Act.

SECTION 9. This Act takes effect September 1, 2019.