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A BILL TO BE ENTITLED
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AN ACT
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relating to creating a criminal offense for the unlawful possession |
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or transfer of an assault weapon. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 46, Penal Code, is amended by adding |
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Section 46.055 to read as follows: |
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Sec. 46.055. UNLAWFUL POSSESSION OR TRANSFER OF ASSAULT |
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WEAPON. (a) In this section, "assault weapon" means: |
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(1) a semiautomatic centerfire rifle that has the |
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capacity to accept a detachable magazine that has: |
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(A) a pistol grip that protrudes conspicuously |
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beneath the action of the firearm; |
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(B) a folding or telescoping stock; |
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(C) a thumbhole stock; |
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(D) a second handgrip or a protruding grip that |
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can be held by the non-trigger hand; |
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(E) a flash suppressor; or |
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(F) a grenade launcher or flare launcher; |
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(2) a semiautomatic centerfire rifle that has a fixed |
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magazine that holds more than 10 rounds of ammunition; |
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(3) a semiautomatic centerfire rifle that has an |
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overall length of less than 30 inches; |
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(4) a semiautomatic shotgun that has the capacity to |
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accept a detachable magazine; |
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(5) a semiautomatic shotgun that has a folding or |
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telescoping stock and has: |
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(A) a thumbhole stock; or |
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(B) a second handgrip or a protruding grip that |
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can be held by the non-trigger hand; |
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(6) a semiautomatic pistol that has the capacity to |
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accept a detachable magazine and has: |
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(A) a second handgrip or a protruding grip that |
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can be held by the non-trigger hand; |
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(B) an ammunition magazine that attaches to the |
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pistol outside of the pistol grip; |
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(C) a threaded barrel capable of accepting a |
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flash suppressor, forward handgrip, or silencer; or |
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(D) a shroud that is attached to or partially or |
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completely encircles the barrel and that permits the shooter to |
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hold the firearm with the non-trigger hand without being burned; |
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(7) a semiautomatic pistol that has a fixed magazine |
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that holds more than 10 rounds of ammunition; |
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(8) a revolving cylinder shotgun; or |
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(9) a conversion kit, part, or combination of parts |
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from which an assault weapon can be assembled or with which a |
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firearm may be converted into a weapon described by Subdivision |
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(1), (2), (3), (4), (5), (6), (7), or (8). |
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(b) For purposes of this section, "assault weapon" does not |
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include any rifle, shotgun, or pistol that has been rendered |
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permanently inoperable. |
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(c) A person commits an offense if the person knowingly: |
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(1) possesses an assault weapon; or |
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(2) sells, offers to sell, or otherwise transfers an |
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assault weapon. |
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(d) An offense under this section is a Class A misdemeanor. |
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(e) It is a defense to prosecution under this section that |
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the actor engaged in the conduct while engaged in the actual |
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discharge of official duties, or directly en route to or from the |
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person's place of assignment, as: |
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(1) a peace officer; or |
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(2) a member of the armed forces or state military |
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forces as defined by Section 431.001, Government Code. |
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(f) It is a defense to prosecution under Subsection (c)(1) |
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that the actor lawfully possessed the assault weapon on August 31, |
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2021. |
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(g) If conduct that constitutes an offense under this |
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section also constitutes an offense under any other law, the actor |
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may be prosecuted under this section, the other law, or both. |
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SECTION 2. Section 5.141(a), Alcoholic Beverage Code, is |
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amended to read as follows: |
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(a) A commissioned inspector or representative of the |
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commission may purchase for an amount set by the commission, not to |
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exceed fair market value, a firearm issued to the inspector or |
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representative by the commission if: |
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(1) the firearm is not: |
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(A) listed as a prohibited weapon under Section |
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46.05, Penal Code; or |
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(B) an assault weapon as defined by Section |
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46.055, Penal Code;[,] and |
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(2) [if] the firearm is retired by the commission for |
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replacement purposes. |
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SECTION 3. Article 15.27(h), Code of Criminal Procedure, is |
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amended to read as follows: |
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(h) This article applies to any felony offense and the |
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following misdemeanors: |
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(1) an offense under Section 20.02, 21.08, 22.01, |
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22.05, 22.07, or 71.02, Penal Code; |
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(2) the unlawful use, sale, or possession of a |
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controlled substance, drug paraphernalia, or marihuana, as defined |
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by Chapter 481, Health and Safety Code; or |
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(3) the unlawful possession of any of the weapons or |
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devices listed in Sections 46.01(1)-(14) or Section 46.01(16) |
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[(16)], Penal Code, [or] a weapon listed as a prohibited weapon |
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under Section 46.05, Penal Code, or an assault weapon as defined by |
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Section 46.055, Penal Code. |
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SECTION 4. The heading to Article 18.18, Code of Criminal |
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Procedure, is amended to read as follows: |
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Art. 18.18. DISPOSITION OF GAMBLING PARAPHERNALIA, |
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PROHIBITED WEAPON, ASSAULT WEAPON, CRIMINAL INSTRUMENT, AND OTHER |
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CONTRABAND. |
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SECTION 5. Articles 18.18(a), (b), (e), (f), and (g), Code |
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of Criminal Procedure, are amended to read as follows: |
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(a) Following the final conviction of a person for |
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possession of a gambling device or equipment, altered gambling |
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equipment, or gambling paraphernalia, for an offense involving a |
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criminal instrument, for an offense involving an obscene device or |
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material, for an offense involving child pornography, or for an |
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offense involving a scanning device or re-encoder, the court |
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entering the judgment of conviction shall order that the machine, |
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device, gambling equipment or gambling paraphernalia, instrument, |
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obscene device or material, child pornography, or scanning device |
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or re-encoder be destroyed or forfeited to the state. Not later than |
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the 30th day after the final conviction of a person for an offense |
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involving a prohibited weapon or an assault weapon, the court |
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entering the judgment of conviction on its own motion, on the motion |
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of the prosecuting attorney in the case, or on the motion of the law |
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enforcement agency initiating the complaint on notice to the |
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prosecuting attorney in the case if the prosecutor fails to move for |
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the order shall order that the prohibited weapon or assault weapon |
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be destroyed or forfeited to the law enforcement agency that |
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initiated the complaint. If the court fails to enter the order |
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within the time required by this subsection, any magistrate in the |
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county in which the offense occurred may enter the order. Following |
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the final conviction of a person for an offense involving dog |
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fighting, the court entering the judgment of conviction shall order |
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that any dog-fighting equipment be destroyed or forfeited to the |
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state. Destruction of dogs, if necessary, must be carried out by a |
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veterinarian licensed in this state or, if one is not available, by |
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trained personnel of a humane society or an animal shelter. If |
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forfeited, the court shall order the contraband delivered to the |
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state, any political subdivision of the state, or to any state |
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institution or agency. If gambling proceeds were seized, the court |
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shall order them forfeited to the state and shall transmit them to |
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the grand jury of the county in which they were seized for use in |
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investigating alleged violations of the Penal Code, or to the |
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state, any political subdivision of the state, or to any state |
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institution or agency. |
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(b) If there is no prosecution or conviction following |
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seizure, the magistrate to whom the return was made shall notify in |
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writing the person found in possession of the alleged gambling |
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device or equipment, altered gambling equipment or gambling |
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paraphernalia, gambling proceeds, prohibited weapon, assault |
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weapon, obscene device or material, child pornography, scanning |
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device or re-encoder, criminal instrument, or dog-fighting |
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equipment to show cause why the property seized should not be |
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destroyed or the proceeds forfeited. The magistrate, on the motion |
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of the law enforcement agency seizing a prohibited weapon or an |
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assault weapon, shall order the weapon destroyed or forfeited to |
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the law enforcement agency seizing the weapon, unless a person |
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shows cause as to why the prohibited weapon or assault weapon should |
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not be destroyed or forfeited. A law enforcement agency shall make a |
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motion under this section in a timely manner after the time at which |
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the agency is informed in writing by the attorney representing the |
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state that no prosecution will arise from the seizure. |
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(e) Any person interested in the alleged gambling device or |
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equipment, altered gambling equipment or gambling paraphernalia, |
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gambling proceeds, prohibited weapon, assault weapon, obscene |
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device or material, child pornography, scanning device or |
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re-encoder, criminal instrument, or dog-fighting equipment seized |
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must appear before the magistrate on the 20th day following the date |
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the notice was mailed or posted. Failure to timely appear forfeits |
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any interest the person may have in the property or proceeds seized, |
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and no person after failing to timely appear may contest |
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destruction or forfeiture. |
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(f) If a person timely appears to show cause why the |
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property or proceeds should not be destroyed or forfeited, the |
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magistrate shall conduct a hearing on the issue and determine the |
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nature of property or proceeds and the person's interest therein. |
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Unless the person proves by a preponderance of the evidence that the |
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property or proceeds is not gambling equipment, altered gambling |
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equipment, gambling paraphernalia, gambling device, gambling |
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proceeds, prohibited weapon, assault weapon, obscene device or |
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material, child pornography, criminal instrument, scanning device |
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or re-encoder, or dog-fighting equipment and that he is entitled to |
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possession, the magistrate shall dispose of the property or |
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proceeds in accordance with Paragraph (a) of this article. |
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(g) For purposes of this article: |
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(1) "criminal instrument" has the meaning defined in |
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the Penal Code; |
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(2) "gambling device or equipment, altered gambling |
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equipment or gambling paraphernalia" has the meaning defined in the |
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Penal Code; |
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(3) "prohibited weapon" has the meaning defined in the |
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Penal Code; |
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(4) "dog-fighting equipment" means: |
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(A) equipment used for training or handling a |
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fighting dog, including a harness, treadmill, cage, decoy, pen, |
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house for keeping a fighting dog, feeding apparatus, or training |
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pen; |
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(B) equipment used for transporting a fighting |
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dog, including any automobile, or other vehicle, and its |
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appurtenances which are intended to be used as a vehicle for |
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transporting a fighting dog; |
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(C) equipment used to promote or advertise an |
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exhibition of dog fighting, including a printing press or similar |
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equipment, paper, ink, or photography equipment; or |
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(D) a dog trained, being trained, or intended to |
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be used to fight with another dog; |
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(5) "obscene device" and "obscene" have the meanings |
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assigned by Section 43.21, Penal Code; |
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(6) "re-encoder" has the meaning assigned by Section |
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522.001, Business & Commerce Code; |
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(7) "scanning device" has the meaning assigned by |
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Section 522.001, Business & Commerce Code; [and] |
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(8) "obscene material" and "child pornography" |
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include digital images and the media and equipment on which those |
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images are stored; and |
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(9) "assault weapon" has the meaning assigned by |
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Section 46.055, Penal Code. |
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SECTION 6. Articles 18.19(a) and (d), Code of Criminal |
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Procedure, are amended to read as follows: |
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(a) Weapons seized in connection with an offense involving |
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the use of a weapon or an offense under Penal Code Chapter 46 shall |
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be held by the law enforcement agency making the seizure, subject to |
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the following provisions, unless: |
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(1) the weapon is a prohibited weapon identified in |
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Penal Code Chapter 46, or an assault weapon as defined by Section |
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46.055, Penal Code, in which event Article 18.18 of this code |
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applies; or |
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(2) the weapon is alleged to be stolen property, in |
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which event Chapter 47 of this code applies. |
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(d) A person either convicted or receiving deferred |
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adjudication under Chapter 46, Penal Code, is entitled to the |
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weapon seized upon request to the court in which the person was |
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convicted or placed on deferred adjudication. However, the court |
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entering the judgment shall order the weapon destroyed, sold at |
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public sale by the law enforcement agency holding the weapon or by |
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an auctioneer licensed under Chapter 1802, Occupations Code, or |
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forfeited to the state for use by the law enforcement agency holding |
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the weapon or by a county forensic laboratory designated by the |
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court if: |
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(1) the person does not request the weapon before the |
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61st day after the date of the judgment of conviction or the order |
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placing the person on deferred adjudication; |
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(2) the person has been previously convicted under |
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Chapter 46, Penal Code; |
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(3) the weapon is one defined as a prohibited weapon or |
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an assault weapon under Chapter 46, Penal Code; |
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(4) the offense for which the person is convicted or |
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receives deferred adjudication was committed in or on the premises |
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of a playground, school, video arcade facility, or youth center, as |
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those terms are defined by Section 481.134, Health and Safety Code; |
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or |
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(5) the court determines based on the prior criminal |
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history of the defendant or based on the circumstances surrounding |
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the commission of the offense that possession of the seized weapon |
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would pose a threat to the community or one or more individuals. |
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SECTION 7. Section 37.005(c), Education Code, is amended to |
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read as follows: |
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(c) A student who is enrolled in a grade level below grade |
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three may not be placed in out-of-school suspension unless while on |
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school property or while attending a school-sponsored or |
|
school-related activity on or off of school property, the student |
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engages in: |
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(1) conduct that contains the elements of an offense |
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related to weapons under Section 46.02, [or] 46.05, or 46.055, |
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Penal Code; |
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(2) conduct that contains the elements of a violent |
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offense under Section 22.01, 22.011, 22.02, or 22.021, Penal Code; |
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or |
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(3) selling, giving, or delivering to another person |
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or possessing, using, or being under the influence of any amount of: |
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(A) marihuana or a controlled substance, as |
|
defined by Chapter 481, Health and Safety Code, or by 21 U.S.C. |
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Section 801 et seq.; |
|
(B) a dangerous drug, as defined by Chapter 483, |
|
Health and Safety Code; or |
|
(C) an alcoholic beverage, as defined by Section |
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1.04, Alcoholic Beverage Code. |
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SECTION 8. Section 37.007(a), Education Code, is amended to |
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read as follows: |
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(a) Except as provided by Subsection (k), a student shall be |
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expelled from a school if the student, on school property or while |
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attending a school-sponsored or school-related activity on or off |
|
of school property: |
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(1) engages in conduct that contains the elements of |
|
the offense of unlawfully carrying weapons under Section 46.02, |
|
Penal Code, [or] elements of an offense relating to prohibited |
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weapons under Section 46.05, Penal Code, or elements of an offense |
|
relating to assault weapons under Section 46.055, Penal Code; |
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(2) engages in conduct that contains the elements of |
|
the offense of: |
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(A) aggravated assault under Section 22.02, |
|
Penal Code, sexual assault under Section 22.011, Penal Code, or |
|
aggravated sexual assault under Section 22.021, Penal Code; |
|
(B) arson under Section 28.02, Penal Code; |
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(C) murder under Section 19.02, Penal Code, |
|
capital murder under Section 19.03, Penal Code, or criminal |
|
attempt, under Section 15.01, Penal Code, to commit murder or |
|
capital murder; |
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(D) indecency with a child under Section 21.11, |
|
Penal Code; |
|
(E) aggravated kidnapping under Section 20.04, |
|
Penal Code; |
|
(F) aggravated robbery under Section 29.03, |
|
Penal Code; |
|
(G) manslaughter under Section 19.04, Penal |
|
Code; |
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(H) criminally negligent homicide under Section |
|
19.05, Penal Code; or |
|
(I) continuous sexual abuse of young child or |
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children under Section 21.02, Penal Code; or |
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(3) engages in conduct specified by Section |
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37.006(a)(2)(C) or (D), if the conduct is punishable as a felony. |
|
SECTION 9. Section 411.020(a), Government Code, is amended |
|
to read as follows: |
|
(a) A commissioned officer of the department may purchase |
|
for an amount set by the department, not to exceed fair market |
|
value, a firearm issued to the officer by the department if: |
|
(1) the firearm is not: |
|
(A) listed as a prohibited weapon under Section |
|
46.05, Penal Code; or |
|
(B) an assault weapon as defined by Section |
|
46.055, Penal Code;[,] and |
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(2) [if] the firearm is retired by the department for |
|
replacement purposes. |
|
SECTION 10. Section 614.051(a), Government Code, is amended |
|
to read as follows: |
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(a) An individual may purchase a firearm from a governmental |
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entity if: |
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(1) the individual was a peace officer commissioned by |
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the entity; |
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(2) the individual was honorably retired from the |
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individual's commission by the entity; |
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(3) the firearm had been previously issued to the |
|
individual by the entity; and |
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(4) the firearm is not a prohibited weapon under |
|
Section 46.05, Penal Code, or an assault weapon as defined by |
|
Section 46.055, Penal Code. |
|
SECTION 11. Section 614.052(a), Government Code, is amended |
|
to read as follows: |
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(a) An individual listed under Subsection (b) may purchase a |
|
firearm from a governmental entity if: |
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(1) the firearm had been previously issued by the |
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entity to a peace officer commissioned by the entity who died while |
|
commissioned, without regard to whether the officer died while |
|
discharging the officer's official duties; and |
|
(2) the firearm is not a prohibited weapon under |
|
Section 46.05, Penal Code, or an assault weapon as defined by |
|
Section 46.055, Penal Code. |
|
SECTION 12. Section 11.0193(a), Parks and Wildlife Code, is |
|
amended to read as follows: |
|
(a) An employee commissioned by the director as a peace |
|
officer may purchase for an amount set by the department, not to |
|
exceed fair market value, a firearm issued to the person by the |
|
department if: |
|
(1) the firearm is not: |
|
(A) listed as a prohibited weapon under Section |
|
46.05, Penal Code; or |
|
(B) an assault weapon as defined by Section |
|
46.055, Penal Code; and |
|
(2) the firearm is retired by the department for |
|
replacement purposes. |
|
SECTION 13. Section 9.31(b), Penal Code, is amended to read |
|
as follows: |
|
(b) The use of force against another is not justified: |
|
(1) in response to verbal provocation alone; |
|
(2) to resist an arrest or search that the actor knows |
|
is being made by a peace officer, or by a person acting in a peace |
|
officer's presence and at his direction, even though the arrest or |
|
search is unlawful, unless the resistance is justified under |
|
Subsection (c); |
|
(3) if the actor consented to the exact force used or |
|
attempted by the other; |
|
(4) if the actor provoked the other's use or attempted |
|
use of unlawful force, unless: |
|
(A) the actor abandons the encounter, or clearly |
|
communicates to the other his intent to do so reasonably believing |
|
he cannot safely abandon the encounter; and |
|
(B) the other nevertheless continues or attempts |
|
to use unlawful force against the actor; or |
|
(5) if the actor sought an explanation from or |
|
discussion with the other person concerning the actor's differences |
|
with the other person while the actor was: |
|
(A) carrying a weapon in violation of Section |
|
46.02; [or] |
|
(B) possessing or transporting a weapon in |
|
violation of Section 46.05; or |
|
(C) possessing an assault weapon in violation of |
|
Section 46.055. |
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SECTION 14. This Act takes effect September 1, 2021. |