87R7540 TSS-F

By: Murr H.B. No. 3361

A BILL TO BE ENTITLED

AN ACT

relating to the enforcement of certain federal firearm, firearm accessory, and firearm ammunition regulations within the State of Texas; creating a criminal offense.

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

SECTION 1. This Act shall be known as the Second Amendment Preservation Act.

SECTION 2. The Legislature of the State of Texas finds that:

(1) The Tenth Amendment to the United States Constitution reserves to the states and the people all powers not granted to the federal government elsewhere in the constitution, as those powers were understood at the time that Texas was admitted to statehood in 1845. The guaranty of those powers is a matter of contract between the state and people of Texas and the United States dating from the time Texas became a state.

(2) The Ninth Amendment to the United States Constitution guarantees to the people rights not enumerated in the constitution, as those rights were understood at the time Texas became a state. The guaranty of those rights is a matter of contract between the state and people of Texas and the United States dating from the time Texas became a state.

(3) The regulation of intrastate commerce is vested in the states under the Ninth and Tenth Amendments to the United States Constitution if not expressly preempted by federal law. The United States Congress has not expressly preempted state regulation of intrastate commerce relating to the manufacture on an intrastate basis of firearms, firearms accessories, and ammunition.

(4) The Second Amendment to the United States Constitution guarantees the right of the people to keep and bear arms, as that right was understood at the time Texas became a state. The guaranty of that right is a matter of contract between the state and people of Texas and the United States dating from the time Texas became a state.

(5) Section 23, Article I, Texas Constitution, secures to Texas citizens the right to keep and bear arms. That constitutional protection is unchanged from the date the constitution was adopted in 1876.

SECTION 3. The Legislature of the State of Texas declares that a firearm, a firearm accessory, or ammunition manufactured in Texas, as described by Chapter 2003, Business & Commerce Code, as added by this Act, that remains within the borders of Texas:

(1) has not traveled in interstate commerce; and

(2) is not subject to federal law or federal regulation, including registration, under the authority of the United States Congress to regulate interstate commerce.

SECTION 4. Title 99, Business & Commerce Code, is amended by adding Chapter 2003 to read as follows:

CHAPTER 2003. INTRASTATE MANUFACTURE OF A FIREARM, A FIREARM

ACCESSORY, OR AMMUNITION

Sec. 2003.001. DEFINITIONS. In this chapter:

(1) "Firearm accessory" has the meaning assigned by Section 40.02, Penal Code.

(2) "Generic and insignificant part" means an item that has manufacturing or consumer product applications other than inclusion in a firearm, a firearm accessory, or ammunition. The term includes a spring, screw, nut, and pin.

(3) "Manufacture" includes forging, casting, machining, or another process for working a material.

Sec. 2003.002. MEANING OF "MANUFACTURED IN THIS STATE." (a) For the purposes of this chapter, a firearm, a firearm accessory, or ammunition is manufactured in this state if the item is manufactured:

(1) in this state from basic materials; and

(2) without the inclusion of any part imported from another state other than a generic and insignificant part.

(b) For the purposes of this chapter, a firearm is manufactured in this state if it is manufactured as described by Subsection (a) without regard to whether a firearm accessory imported into this state from another state is attached to or used in conjunction with it.

Sec. 2003.003. NOT SUBJECT TO FEDERAL REGULATION. (a) A firearm, a firearm accessory, or ammunition that is manufactured in this state and remains in this state is not subject to federal law or federal regulation, including registration, under the authority of the United States Congress to regulate interstate commerce.

(b) A basic material from which a firearm, a firearm accessory, or ammunition is manufactured in this state, including unmachined steel and unshaped wood, is not a firearm, a firearm accessory, or ammunition and is not subject to federal regulation under the authority of the United States Congress to regulate interstate commerce as if it actually were a firearm, a firearm accessory, or ammunition.

Sec. 2003.004. EXCEPTIONS. This chapter does not apply to:

(1) a firearm that cannot be carried and used by one person;

(2) a firearm that has a bore diameter greater than 1.5 inches and that uses smokeless powder and not black powder as a propellant;

(3) ammunition with a projectile that explodes using an explosion of chemical energy after the projectile leaves the firearm; or

(4) any firearm that is capable of shooting more than two shots automatically, without manual reloading, by a single function of the trigger.

Sec. 2003.005. MARKETING OF FIREARMS. A firearm manufactured and sold in this state must have the words "Made in Texas" clearly stamped on a central metallic part, such as the receiver or frame.

Sec. 2003.006. ATTORNEY GENERAL. On written notification to the attorney general by a United States citizen who resides in this state of the citizen's intent to manufacture a firearm, a firearm accessory, or ammunition to which this chapter applies, the attorney general shall seek a declaratory judgment from a federal district court in this state that this chapter is consistent with the United States Constitution.

SECTION 5. Title 8, Penal Code, is amended by adding Chapter 40 to read as follows:

CHAPTER 40. THE TEXAS FIREARM PROTECTION ACT

Sec. 40.01. SHORT TITLE. This chapter may be cited as the Texas Firearm Protection Act.

Sec. 40.02. DEFINITIONS. In this chapter:

(1) "Firearm" has the meaning assigned by Section 46.01.

(2) "Firearm accessory" means an item that is used in conjunction with or mounted on a firearm but is not essential to the basic function of the firearm. The term includes a telescopic or laser sight, magazine, flash or sound suppressor, folding or aftermarket stock or grip, speedloader, ammunition carrier, and light for target illumination.

Sec. 40.03. STATE AND LOCAL GOVERNMENT POLICY REGARDING ENFORCEMENT OF FEDERAL FIREARM LAWS. (a) This section applies to:

(1) the State of Texas, including an agency, department, commission, bureau, board, office, council, court, or other entity that is in any branch of state government and that is created by the constitution or a statute of this state, including a university system or a system of higher education;

(2) the governing body of a municipality, county, or special district or authority;

(3) an officer, employee, or other body that is part of a municipality, county, or special district or authority, including a sheriff, municipal police department, municipal attorney, or county attorney; and

(4) a district attorney or criminal district attorney.

(b) An entity described by Subsection (a) may not adopt a rule, order, ordinance, or policy under which the entity enforces, or by consistent action allows the enforcement of, a federal statute, order, rule, or regulation enacted on or after January 1, 2021, that purports to regulate a firearm, a firearm accessory, or firearm ammunition if the statute, order, rule, or regulation imposes a prohibition, restriction, or other regulation, such as a capacity or size limitation, a registration requirement, or a background check, that does not exist under the laws of this state.

(c) No entity described by Subsection (a) and no person employed by or otherwise under the direction or control of the entity may enforce or attempt to enforce any federal statute, order, rule, or regulation described by Subsection (b).

(d) An entity described by Subsection (a) may not receive state grant funds if the entity adopts a rule, order, ordinance, or policy under which the entity enforces any federal law described by Subsection (b) or, by consistent actions, allows the enforcement of any federal law described by Subsection (b). State grant funds for the entity shall be denied for the fiscal year following the year in which a final judicial determination in an action brought under this section is made that the entity has violated Subsection (b).

(e) Any citizen residing in the jurisdiction of an entity described by Subsection (a) may file a complaint with the attorney general if the citizen offers evidence to support an allegation that the entity has adopted a rule, order, ordinance, or policy under which the entity enforces a federal law described by Subsection (b) or that the entity, by consistent actions, allows the enforcement of a law described by Subsection (b). The citizen must include with the complaint any evidence the citizen has in support of the complaint.

(f) If the attorney general determines that a complaint filed under Subsection (e) against an entity described by Subsection (a) is valid, to compel the entity's compliance with this section the attorney general may file a petition for a writ of mandamus or apply for other appropriate equitable relief in a district court in Travis County or in a county in which the principal office of the entity is located. The attorney general may recover reasonable expenses incurred in obtaining relief under this subsection, including court costs, reasonable attorney's fees, investigative costs, witness fees, and deposition costs.

(g) An appeal of a suit brought under Subsection (f) is governed by the procedures for accelerated appeals in civil cases under the Texas Rules of Appellate Procedure. The appellate court shall render its final order or judgment with the least possible delay.

(h) A person commits an offense if, in the person's official capacity as an officer of an entity described by Subsection (a), or as a person employed by or otherwise under the direction or control of the entity, or under color of law, the person knowingly enforces or attempts to enforce any federal statute, order, rule, or regulation described by Subsection (b). An offense under this subsection is a Class A misdemeanor.

SECTION 6. Chapter 2003, Business & Commerce Code, as added by this Act, applies only to a firearm, a firearm accessory, or ammunition that is manufactured on or after the effective date of this Act.

SECTION 7. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2021.