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A BILL TO BE ENTITLED
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AN ACT
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relating to extreme risk protective orders and the prosecution of |
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the criminal offense of unlawful transfer of a firearm; creating a |
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criminal offense. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Title 1, Code of Criminal Procedure, is amended |
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by adding Chapter 7C to read as follows: |
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CHAPTER 7C. EXTREME RISK PROTECTIVE ORDER |
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Art. 7C.01. DEFINITIONS. In this chapter: |
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(1) "Bodily injury" and "serious bodily injury" have |
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the meanings assigned by Section 1.07, Penal Code. |
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(2) "Family," "family violence," and "household" have |
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the meanings assigned by Chapter 71, Family Code. |
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(3) "Firearm" has the meaning assigned by Section |
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46.01, Penal Code. |
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(4) "Local mental health authority" has the meaning |
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assigned by Section 571.003, Health and Safety Code. |
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(5) "Serious mental illness" has the meaning assigned |
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by Section 1355.001, Insurance Code. |
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Art. 7C.02. APPLICATION FOR EXTREME RISK PROTECTIVE ORDER. |
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(a) An application for a protective order under this chapter may be |
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filed by: |
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(1) a member of the respondent's family or household; |
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(2) a parent, guardian, or conservator of a person who |
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is under 18 years of age and a member of the respondent's family or |
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household; or |
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(3) a prosecuting attorney acting: |
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(A) on behalf of a person described by |
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Subdivision (1) or (2); or |
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(B) at the request of a peace officer. |
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(b) An application must: |
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(1) include: |
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(A) detailed allegations, based on personal |
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knowledge of a person described by Subsection (a)(1) or (2) or of a |
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peace officer, regarding any dangerous behavior or conduct |
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exhibited by the respondent as a result of a serious mental illness, |
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including any behavior or conduct related to the respondent's use |
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of firearms; |
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(B) any relevant medical or mental health |
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information concerning the respondent, including copies of |
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relevant medical or mental health records, if available; |
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(C) information concerning the quantity, type, |
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and location of any firearms the applicant believes to be in the |
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respondent's possession or control, if any; |
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(D) any other relevant facts indicating a need |
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for a protective order; and |
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(E) a statement that the applicant believes the |
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respondent poses an immediate and present danger of causing bodily |
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injury, serious bodily injury, or death to any person, including |
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the respondent, as a result of the respondent's serious mental |
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illness and access to firearms; and |
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(2) be signed by the applicant under an oath that, to |
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the knowledge and belief of the applicant, the facts and |
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circumstances contained in the application are true. |
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(c) An application for a protective order under this chapter |
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may be filed in a district court, juvenile court having the |
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jurisdiction of a district court, statutory county court, or |
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constitutional county court in the county in which the applicant or |
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the respondent resides. |
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Art. 7C.03. CONFIDENTIALITY OF CERTAIN INFORMATION. On |
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receiving an application containing specific medical or mental |
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health information concerning the respondent, the court shall order |
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the clerk to: |
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(1) strike the information from the public records of |
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the court; and |
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(2) maintain a confidential record of the information |
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for use only by the court. |
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Art. 7C.04. TEMPORARY EX PARTE ORDER. (a) If the court |
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finds from the information contained in an application for a |
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protective order under this chapter that there is reasonable cause |
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to believe that the respondent poses an immediate and present |
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danger of causing bodily injury, serious bodily injury, or death to |
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any person, including the respondent, as a result of the |
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respondent's serious mental illness and access to firearms, the |
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court, without further notice to the respondent and without a |
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hearing, may issue a temporary ex parte order prohibiting the |
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respondent from purchasing, owning, possessing, or controlling a |
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firearm. |
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(b) In a temporary ex parte order, the court may order the |
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respondent to: |
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(1) relinquish, without delay, any firearms owned by |
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or in the actual or constructive possession or control of the |
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respondent to a law enforcement agency for holding in the manner |
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provided by Article 18.192; |
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(2) if applicable, surrender to the court the |
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respondent's license to carry a handgun issued under Subchapter H, |
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Chapter 411, Government Code; and |
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(3) for purposes of determining whether the respondent |
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has a serious mental illness, submit to an examination by the local |
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mental health authority or a disinterested expert who is qualified |
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to diagnose, and experienced in diagnosing, mental illness. |
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Art. 7C.05. HEARING; ISSUANCE OF PROTECTIVE ORDER. (a) Not |
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later than the 14th day after the later of the date an application |
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is filed or the date a temporary ex parte order is issued, the court |
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shall hold a hearing on the issuance of the protective order. |
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(b) The court shall provide personal notice of the hearing |
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to the respondent. |
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(c) In determining whether to issue a protective order under |
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this article, the court: |
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(1) shall consider: |
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(A) the results of any examination described by |
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Article 7C.04(b)(3); |
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(B) any relevant medical or mental health |
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information concerning the respondent; |
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(C) any history of threats or acts of violence by |
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the respondent directed at any person, including the respondent; |
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(D) any history of the respondent using, |
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attempting to use, or threatening to use physical force against |
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another person; |
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(E) any recent violation by the respondent of an |
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order issued: |
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(i) under Chapter 7A or Article 17.292; |
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(ii) under Section 6.504 or Chapter 85, |
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Family Code; |
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(iii) under Chapter 83, Family Code, if the |
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temporary ex parte order has been served on the respondent; or |
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(iv) by another jurisdiction as provided by |
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Chapter 88, Family Code; |
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(F) any arrest or conviction of the respondent |
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for: |
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(i) an offense under Section 42.072, Penal |
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Code; or |
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(ii) a misdemeanor offense involving |
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violence, including family violence; |
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(G) any conviction of the respondent for an |
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offense under Section 42.09, 42.091, or 42.092, Penal Code; and |
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(H) evidence related to the respondent's abuse of |
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a controlled substance or alcohol, including evidence of any |
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treatment for and recovery from abusing a controlled substance or |
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alcohol; and |
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(2) may consider any other relevant factor including: |
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(A) any previous violation by the respondent of |
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an order described by Subdivision (1)(E); and |
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(B) evidence regarding the respondent's recent |
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acquisition of firearms, ammunition, or other deadly weapons. |
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(d) At the close of the hearing, if the court finds by clear |
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and convincing evidence that the respondent poses an immediate and |
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present danger of causing bodily injury, serious bodily injury, or |
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death to any person, including the respondent, as a result of the |
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respondent's serious mental illness and access to firearms, the |
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court shall issue a protective order that includes a statement of |
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the required finding. |
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(e) If the court does not make the finding described by |
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Subsection (d), the court shall, as applicable, immediately rescind |
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any temporary ex parte order issued under Article 7C.04 and return |
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the respondent's license to carry a handgun. |
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Art. 7C.06. CONTENTS OF PROTECTIVE ORDER. In a protective |
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order issued under Article 7C.05, the court shall: |
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(1) prohibit the person who is subject to the order |
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from purchasing, owning, possessing, or controlling a firearm for |
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the duration of the order; and |
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(2) order the person to: |
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(A) relinquish, without delay, any firearms |
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owned by or in the actual or constructive possession or control of |
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the person to a law enforcement agency for holding in the manner |
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provided by Article 18.192; |
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(B) if applicable, surrender to the court the |
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person's license to carry a handgun issued under Subchapter H, |
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Chapter 411, Government Code; and |
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(C) if applicable, receive outpatient mental |
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health services if recommended by the local mental health authority |
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or expert after the authority or expert performs an examination |
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described by Article 7C.04(b)(3). |
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Art. 7C.07. DURATION OF PROTECTIVE ORDER. (a) A protective |
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order issued under Article 7C.05 is effective until the first |
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anniversary of the date the order was issued. |
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(b) The court may renew a protective order issued under |
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Article 7C.05 for a period not to exceed one year after the order's |
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original expiration date. Before renewing the order the court must |
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hold a hearing and provide personal notice of the hearing to the |
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person who is the subject of the order. |
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(c) A person who is the subject of a protective order may |
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file a motion not earlier than the 91st day after the date on which |
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the order was initially issued or renewed, as applicable, |
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requesting that the court review the order and determine whether |
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there is a continuing need for the order. After a hearing on the |
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motion, if the court fails to make the finding that there is no |
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continuing need for the order, the order remains in effect until the |
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date the order expires as provided by this article. |
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(d) At a hearing to renew or rescind a protective order |
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under this article, the court shall consider the factors described |
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by Article 7C.05(c). |
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Art. 7C.08. NOTICE TO DEPARTMENT OF PUBLIC SAFETY REGARDING |
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ISSUANCE OR EXPIRATION OF ORDER. (a) Not later than the 30th day |
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after the date a protective order is issued under Article 7C.05, the |
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clerk of the issuing court shall provide the following to the |
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Department of Public Safety: |
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(1) the complete name, race, and sex of the person who |
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is the subject of the order; |
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(2) any known identifying number of the person, |
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including a social security number, driver's license number, or |
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state identification number; |
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(3) the person's date of birth; and |
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(4) if applicable, the person's license to carry a |
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handgun issued under Subchapter H, Chapter 411, Government Code. |
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(b) Not later than the 30th day after the date the |
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protective order expires under Article 7C.07, the clerk of the |
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issuing court shall notify the Department of Public Safety of the |
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expiration. |
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Art. 7C.09. APPLICATION OF OTHER LAW. To the extent |
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applicable, except as otherwise provided by this chapter, Title 4, |
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Family Code, applies to a protective order issued under this |
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chapter. |
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SECTION 2. Chapter 18, Code of Criminal Procedure, is |
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amended by adding Article 18.192 to read as follows: |
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Art. 18.192. HOLDING AND DISPOSITION OF FIREARM |
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RELINQUISHED UNDER EXTREME RISK PROTECTIVE ORDER. (a) A law |
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enforcement officer who takes possession of a firearm from a person |
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who is the subject of an extreme risk protective order issued under |
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Chapter 7C shall immediately provide the person a written copy of |
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the receipt for the firearm and a written notice of the procedure |
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for the return of a firearm under this article. |
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(b) Not later than the seventh day after the date a firearm |
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subject to disposition under this article is received, the law |
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enforcement agency holding the firearm shall notify the court that |
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issued the extreme risk protective order that the person who is the |
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subject of the order has relinquished the firearm. |
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(c) Not later than the 30th day after the date the extreme |
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risk protective order is rescinded or expires, the clerk of the |
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court shall notify the law enforcement agency of the rescission or |
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expiration. |
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(d) Not later than the 30th day after the date the law |
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enforcement agency holding a firearm subject to disposition under |
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this article receives the notice described by Subsection (c), the |
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law enforcement agency shall conduct a check of state and national |
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criminal history record information to verify whether the person |
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may lawfully possess a firearm under 18 U.S.C. Section 922(g) and |
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under the law of this state. |
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(e) If the check conducted under Subsection (d) verifies |
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that the person may lawfully possess a firearm, the law enforcement |
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agency shall provide to the person by certified mail written notice |
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stating that the firearm may be returned to the person if the person |
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submits a written request before the 121st day after the date of the |
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notice. |
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(f) An unclaimed firearm that is received under an extreme |
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risk protective order issued under Chapter 7C may not be destroyed |
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or forfeited to the state. |
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(g) The law enforcement agency holding the firearm may |
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provide for the firearm to be sold by a person who is a licensed |
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firearms dealer under 18 U.S.C. Section 923 if: |
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(1) the check conducted under Subsection (d) shows |
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that the person who was the subject of the extreme risk protective |
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order may not lawfully possess a firearm; or |
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(2) the notice is provided under Subsection (e) and |
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the person who was the subject of the extreme risk protective order |
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does not submit, before the 121st day after the date of the notice, |
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a written request for the return of the firearm. |
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(h) The proceeds from the sale of a firearm under this |
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article shall be paid to the owner of the seized firearm, less the |
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cost of administering this article with respect to the firearm. |
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(i) A law enforcement officer or other employee of a law |
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enforcement agency is subject to punishment for contempt of court |
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if the officer or employee violates this article with the intent to |
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withhold a firearm from a person who, at the time the violation |
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occurred: |
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(1) was the subject of an extreme risk protective |
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order that was rescinded or that expired; and |
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(2) may lawfully possess the firearm. |
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SECTION 3. Subchapter D, Chapter 411, Government Code, is |
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amended by adding Section 411.0522 to read as follows: |
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Sec. 411.0522. INFORMATION CONCERNING EXTREME RISK |
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PROTECTIVE ORDER. (a) The department by rule shall establish a |
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procedure to provide information concerning a person who is the |
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subject of an extreme risk protective order to the Federal Bureau of |
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Investigation for inclusion in the National Instant Criminal |
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Background Check System. |
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(b) The procedure must require the department to provide any |
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information received under Article 7C.08, Code of Criminal |
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Procedure, to the Federal Bureau of Investigation not later than |
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the 30th day after the date the department received the |
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information. |
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SECTION 4. Section 411.172(a), Government Code, is amended |
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to read as follows: |
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(a) A person is eligible for a license to carry a handgun if |
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the person: |
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(1) is a legal resident of this state for the six-month |
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period preceding the date of application under this subchapter or |
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is otherwise eligible for a license under Section 411.173(a); |
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(2) is at least 21 years of age; |
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(3) has not been convicted of a felony; |
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(4) is not charged with the commission of a Class A or |
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Class B misdemeanor or equivalent offense, or of an offense under |
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Section 42.01, Penal Code, or equivalent offense, or of a felony |
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under an information or indictment; |
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(5) is not a fugitive from justice for a felony or a |
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Class A or Class B misdemeanor or equivalent offense; |
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(6) is not a chemically dependent person; |
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(7) is not incapable of exercising sound judgment with |
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respect to the proper use and storage of a handgun; |
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(8) has not, in the five years preceding the date of |
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application, been convicted of a Class A or Class B misdemeanor or |
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equivalent offense or of an offense under Section 42.01, Penal |
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Code, or equivalent offense; |
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(9) is fully qualified under applicable federal and |
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state law to purchase a handgun; |
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(10) has not been finally determined to be delinquent |
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in making a child support payment administered or collected by the |
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attorney general; |
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(11) has not been finally determined to be delinquent |
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in the payment of a tax or other money collected by the comptroller, |
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the tax collector of a political subdivision of the state, or any |
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agency or subdivision of the state; |
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(12) is not currently: |
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(A) restricted under a court protective order, |
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including an extreme risk protective order issued under Chapter 7C, |
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Code of Criminal Procedure; or |
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(B) subject to a restraining order affecting the |
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spousal relationship, other than a restraining order solely |
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affecting property interests; |
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(13) has not, in the 10 years preceding the date of |
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application, been adjudicated as having engaged in delinquent |
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conduct violating a penal law of the grade of felony; and |
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(14) has not made any material misrepresentation, or |
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failed to disclose any material fact, in an application submitted |
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pursuant to Section 411.174. |
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SECTION 5. Chapter 37, Penal Code, is amended by adding |
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Section 37.082 to read as follows: |
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Sec. 37.082. FALSE REPORT REGARDING REQUEST FOR EXTREME |
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RISK PROTECTIVE ORDER. (a) In this section, "prosecuting |
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attorney" means a district attorney, criminal district attorney, or |
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county attorney. |
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(b) A person commits an offense if, with intent to deceive, |
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the person knowingly makes to a prosecuting attorney or peace |
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officer a false statement relating to a request that a prosecuting |
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attorney file an application for an extreme risk protective order |
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under Chapter 7C, Code of Criminal Procedure. |
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(c) An offense under this section is a Class B misdemeanor. |
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SECTION 6. Section 46.06(a), Penal Code, is amended to read |
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as follows: |
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(a) A person commits an offense if the person: |
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(1) sells, rents, leases, loans, or gives a handgun to |
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any person knowing that the person to whom the handgun is to be |
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delivered intends to use it unlawfully or in the commission of an |
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unlawful act; |
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(2) intentionally or knowingly sells, rents, leases, |
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or gives or offers to sell, rent, lease, or give to any child |
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younger than 18 years of age any firearm, club, or |
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location-restricted knife; |
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(3) intentionally, knowingly, or recklessly sells a |
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firearm or ammunition for a firearm to any person who is |
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intoxicated; |
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(4) knowingly sells a firearm or ammunition for a |
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firearm to any person who has been convicted of a felony before the |
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fifth anniversary of the later of the following dates: |
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(A) the person's release from confinement |
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following conviction of the felony; or |
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(B) the person's release from supervision under |
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community supervision, parole, or mandatory supervision following |
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conviction of the felony; |
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(5) sells, rents, leases, loans, or gives a handgun to |
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any person knowing that an active protective order is directed to |
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the person to whom the handgun is to be delivered; |
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(6) sells, rents, leases, loans, or gives a firearm to |
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any person knowing that an active extreme risk protective order |
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under Chapter 7C, Code of Criminal Procedure, is directed to the |
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person to whom the firearm is to be delivered; or |
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(7) [(6)] knowingly purchases, rents, leases, or |
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receives as a loan or gift from another a handgun while an active |
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protective order is directed to the actor. |
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SECTION 7. Section 46.06, Penal Code, as amended by this |
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Act, applies only to an offense committed on or after the effective |
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date of this Act. An offense committed before the effective date of |
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this Act is governed by the law in effect on the date the offense was |
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committed, and the former law is continued in effect for that |
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purpose. For purposes of this section, an offense was committed |
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before the effective date of this Act if any element of the offense |
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occurred before that date. |
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SECTION 8. Not later than October 1, 2019, the Department of |
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Public Safety shall adopt rules as required by Section 411.0522, |
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Government Code, as added by this Act. |
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SECTION 9. This Act takes effect September 1, 2019. |