88R6395 MCF-D

By: Ramos H.B. No. 1479

A BILL TO BE ENTITLED

AN ACT

relating to requiring a person convicted of an offense involving family violence or a person who is the subject of a protective order to surrender firearms owned by the person; authorizing a fee.

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

SECTION 1. Title 1, Code of Criminal Procedure, is amended by adding Chapter 68 to read as follows:

CHAPTER 68. SURRENDER OF FIREARM ON CONVICTION OF CERTAIN FAMILY

VIOLENCE OFFENSES OR ISSUANCE OF CERTAIN PROTECTIVE ORDERS

Art. 68.001. APPLICABILITY. This chapter applies to a person who:

(1) is convicted of an offense involving family violence, as defined by Section 71.004, Family Code; or

(2) is the subject of:

(A) a protective order under Chapter 85, Family Code, or Subchapter A, Chapter 7B of this code; or

(B) a magistrate's order for emergency protection under Article 17.292.

Art. 68.002. NOTICE AND ORDER TO SURRENDER FIREARM. On conviction of a person for an offense described by Article 68.001(1) or issuance of an order described by Article 68.001(2), the court shall:

(1) provide written notice to the person who was convicted or who is the subject of the order that the person is prohibited from acquiring, possessing, or controlling a firearm under 18 U.S.C. Section 922(g); and

(2) order the person to surrender all firearms the person owns in the manner provided by Article 68.003:

(A) if the person receives notice under this article, within the period provided by the notice for the surrender of the firearms, which may not be more than 48 hours after the receipt of the notice; or

(B) if the person was taken into custody immediately after conviction, not later than 48 hours after the person is released from custody.

Art. 68.003. SURRENDER OF FIREARM. A person required to surrender a firearm under Article 68.002 shall surrender the firearm by:

(1) selling the firearm to a person who is a licensed firearms dealer under 18 U.S.C. Section 923;

(2) surrendering the firearm to a law enforcement agency for holding in the manner described by Article 68.006, if the person is required to surrender the firearm based on:

(A) a conviction described by Article 68.001(1) that the person intends to appeal; or

(B) an order described by Article 68.001(2); or

(3) surrendering the firearm to a law enforcement agency for disposition in the manner provided by Article 68.007, if the person is required to surrender the firearm based on a conviction described by Article 68.001(1) that the person does not intend to appeal.

Art. 68.004. REQUIRED DOCUMENTATION. (a) A person subject to an order under Article 68.002 who does not own a firearm shall submit to the court a signed affidavit affirming that the person does not own a firearm.

(b) A licensed firearms dealer who takes possession of a firearm from a person required to surrender the firearm under Article 68.002 shall immediately provide the person with a written receipt for the firearm, and the person shall file the receipt with the court.

Art. 68.005. LAW ENFORCEMENT AGENCY POLICY REGARDING SURRENDER OF FIREARM; FEE. (a) A law enforcement agency that takes possession of surrendered firearms under this chapter shall develop any necessary forms, policies, and procedures for collecting and storing and for returning, selling, or destroying the firearms.

(b) The law enforcement agency may impose a reasonable fee for storing a firearm surrendered under this chapter.

Art. 68.006. HOLDING OF FIREARM SURRENDERED TO LAW ENFORCEMENT AGENCY. (a) A law enforcement agency that takes possession of a firearm under Article 68.003(2) shall immediately provide the person surrendering the firearm a written receipt for the firearm and a written notice of the procedure for the return of the firearm under this article, including any applicable fees due on return of the firearm.

(b) A person who receives a receipt under Subsection (a) shall file the receipt with the court.

(c) Not later than the 30th day after the date of any of the following, the clerk of the court shall notify the law enforcement agency that, as applicable:

(1) the conviction for which the person was required to surrender the person's firearm became final;

(2) the conviction for which the person was required to surrender the person's firearm was vacated, dismissed, reversed on appeal, or otherwise fully discharged or the person received a full pardon for the conviction; or

(3) the order for which the person was required to surrender the person's firearm has expired or has been rescinded.

(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)(2) or (3), 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, before the 121st day after the date of the notice, the person submits:

(1) a written request for the return of the firearm; and

(2) a reasonable fee for storing the firearm in the amount set by the law enforcement agency holding the firearm.

(f) If the law enforcement agency receives notice under Subsection (c)(1) or if the check conducted under Subsection (d) shows that the person may not lawfully possess a firearm, the law enforcement agency shall provide to the person by certified mail written notice stating that:

(1) the person may not lawfully possess a firearm under 18 U.S.C. Section 922(g) or under the law of this state; and

(2) the law enforcement agency holding the firearm will dispose of the firearm in the manner provided by Article 68.007.

Art. 68.007. DISPOSITION OF FIREARM SURRENDERED TO LAW ENFORCEMENT AGENCY. (a) A law enforcement agency shall provide for a firearm surrendered to the law enforcement agency under this chapter to be sold by a person who is a licensed firearms dealer under 18 U.S.C. Section 923 if:

(1) the person surrendered the firearm under Article 68.003(2) and:

(A) the person did not respond to notice under Article 68.006(e) before the 121st day after the date of the notice; or

(B) the law enforcement agency has provided notice under Article 68.006(f) that the person may not lawfully possess a firearm and that the law enforcement agency intends to dispose of the firearm as provided by this article; or

(2) the person surrendered the firearm under Article 68.003(3).

(b) The proceeds from the sale of a firearm under this article shall be paid to the owner of the firearm, less:

(1) the cost of administering this article with respect to the firearm; and

(2) if applicable, a reasonable fee for storing the firearm under Article 68.006 in the amount set by the law enforcement agency holding the firearm.

(c) An unclaimed firearm that is surrendered as provided by this chapter may not be destroyed or forfeited to the state.

Art. 68.008. FORM OF AFFIDAVIT. The Office of Court Administration of the Texas Judicial System shall adopt a model affidavit for purposes of Article 68.004.

SECTION 2. Article 7B.006(a), Code of Criminal Procedure, is amended to read as follows:

(a) Each protective order issued under this subchapter, including a temporary ex parte order, must contain the following prominently displayed statements in boldfaced type, in capital letters, or underlined:

"A PERSON WHO VIOLATES THIS ORDER MAY BE PUNISHED FOR CONTEMPT OF COURT BY A FINE OF AS MUCH AS $500 OR BY CONFINEMENT IN JAIL FOR AS LONG AS SIX MONTHS, OR BOTH."

"NO PERSON, INCLUDING A PERSON WHO IS PROTECTED BY THIS ORDER, MAY GIVE PERMISSION TO ANYONE TO IGNORE OR VIOLATE ANY PROVISION OF THIS ORDER. DURING THE TIME IN WHICH THIS ORDER IS VALID, EVERY PROVISION OF THIS ORDER IS IN FULL FORCE AND EFFECT UNLESS A COURT CHANGES THE ORDER."

"IT IS UNLAWFUL FOR ANY PERSON, OTHER THAN A PEACE OFFICER, AS DEFINED BY SECTION 1.07, PENAL CODE, ACTIVELY ENGAGED IN EMPLOYMENT AS A SWORN, FULL-TIME PAID EMPLOYEE OF A STATE AGENCY OR POLITICAL SUBDIVISION, WHO IS SUBJECT TO A PROTECTIVE ORDER TO POSSESS A FIREARM OR AMMUNITION. A PERSON SUBJECT TO THIS ORDER MUST DISPOSE OF OR SURRENDER ANY FIREARMS IN THE PERSON'S POSSESSION AS PROVIDED BY CHAPTER 68, CODE OF CRIMINAL PROCEDURE."

SECTION 3. Article 17.292(g), Code of Criminal Procedure, is amended to read as follows:

(g) An order for emergency protection issued under this article must contain the following statements printed in bold-face type or in capital letters:

"A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACT PROHIBITED BY THE ORDER MAY BE PUNISHABLE BY A FINE OF AS MUCH AS $4,000 OR BY CONFINEMENT IN JAIL FOR AS LONG AS ONE YEAR OR BY BOTH. AN ACT THAT RESULTS IN A SEPARATE OFFENSE MAY BE PROSECUTED AS A SEPARATE MISDEMEANOR OR FELONY OFFENSE, AS APPLICABLE, IN ADDITION TO A VIOLATION OF THIS ORDER. IF THE ACT IS PROSECUTED AS A SEPARATE FELONY OFFENSE, IT IS PUNISHABLE BY CONFINEMENT IN PRISON FOR AT LEAST TWO YEARS. THE POSSESSION OF A FIREARM BY A PERSON, OTHER THAN A PEACE OFFICER, AS DEFINED BY SECTION 1.07, PENAL CODE, ACTIVELY ENGAGED IN EMPLOYMENT AS A SWORN, FULL-TIME PAID EMPLOYEE OF A STATE AGENCY OR POLITICAL SUBDIVISION, WHO IS SUBJECT TO THIS ORDER MAY BE PROSECUTED AS A SEPARATE OFFENSE PUNISHABLE BY CONFINEMENT OR IMPRISONMENT. A PERSON SUBJECT TO THIS ORDER MUST DISPOSE OF OR SURRENDER ANY FIREARMS IN THE PERSON'S POSSESSION AS PROVIDED BY CHAPTER 68, CODE OF CRIMINAL PROCEDURE."

"NO PERSON, INCLUDING A PERSON WHO IS PROTECTED BY THIS ORDER, MAY GIVE PERMISSION TO ANYONE TO IGNORE OR VIOLATE ANY PROVISION OF THIS ORDER. DURING THE TIME IN WHICH THIS ORDER IS VALID, EVERY PROVISION OF THIS ORDER IS IN FULL FORCE AND EFFECT UNLESS A COURT CHANGES THE ORDER."

SECTION 4. Section 85.026(a), Family Code, is amended to read as follows:

(a) Each protective order issued under this subtitle, including a temporary ex parte order, must contain the following prominently displayed statements in boldfaced type, capital letters, or underlined:

"A PERSON WHO VIOLATES THIS ORDER MAY BE PUNISHED FOR CONTEMPT OF COURT BY A FINE OF AS MUCH AS $500 OR BY CONFINEMENT IN JAIL FOR AS LONG AS SIX MONTHS, OR BOTH."

"NO PERSON, INCLUDING A PERSON WHO IS PROTECTED BY THIS ORDER, MAY GIVE PERMISSION TO ANYONE TO IGNORE OR VIOLATE ANY PROVISION OF THIS ORDER. DURING THE TIME IN WHICH THIS ORDER IS VALID, EVERY PROVISION OF THIS ORDER IS IN FULL FORCE AND EFFECT UNLESS A COURT CHANGES THE ORDER."

"IT IS UNLAWFUL FOR ANY PERSON, OTHER THAN A PEACE OFFICER, AS DEFINED BY SECTION 1.07, PENAL CODE, ACTIVELY ENGAGED IN EMPLOYMENT AS A SWORN, FULL-TIME PAID EMPLOYEE OF A STATE AGENCY OR POLITICAL SUBDIVISION, WHO IS SUBJECT TO A PROTECTIVE ORDER TO POSSESS A FIREARM OR AMMUNITION. A PERSON SUBJECT TO THIS ORDER MUST DISPOSE OF OR SURRENDER ANY FIREARMS IN THE PERSON'S POSSESSION AS PROVIDED BY CHAPTER 68, CODE OF CRIMINAL PROCEDURE."

"IF A PERSON SUBJECT TO A PROTECTIVE ORDER IS RELEASED FROM CONFINEMENT OR IMPRISONMENT FOLLOWING THE DATE THE ORDER WOULD HAVE EXPIRED, OR IF THE ORDER WOULD HAVE EXPIRED NOT LATER THAN THE FIRST ANNIVERSARY OF THE DATE THE PERSON IS RELEASED FROM CONFINEMENT OR IMPRISONMENT, THE ORDER IS AUTOMATICALLY EXTENDED TO EXPIRE ON:

"(1) THE FIRST ANNIVERSARY OF THE DATE THE PERSON IS RELEASED, IF THE PERSON WAS SENTENCED TO CONFINEMENT OR IMPRISONMENT FOR A TERM OF MORE THAN FIVE YEARS; OR

"(2) THE SECOND ANNIVERSARY OF THE DATE THE PERSON IS RELEASED, IF THE PERSON WAS SENTENCED TO CONFINEMENT OR IMPRISONMENT FOR A TERM OF FIVE YEARS OR LESS."

"A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACT PROHIBITED BY THE ORDER MAY BE PUNISHABLE BY A FINE OF AS MUCH AS $4,000 OR BY CONFINEMENT IN JAIL FOR AS LONG AS ONE YEAR, OR BOTH. AN ACT THAT RESULTS IN FAMILY VIOLENCE MAY BE PROSECUTED AS A SEPARATE MISDEMEANOR OR FELONY OFFENSE. IF THE ACT IS PROSECUTED AS A SEPARATE FELONY OFFENSE, IT IS PUNISHABLE BY CONFINEMENT IN PRISON FOR AT LEAST TWO YEARS."

SECTION 5. (a) Chapter 68, Code of Criminal Procedure, as added by this Act, applies only to a person who is convicted of an offense described by Article 68.001(1), Code of Criminal Procedure, as added by this Act, on or after January 1, 2024, or who is the subject of an order described by Article 68.001(2), Code of Criminal Procedure, as added by this Act, that is issued on or after that date. A person who is convicted of an offense before January 1, 2024, or who is the subject of an order issued before that date is governed by the law in effect immediately before the effective date of this Act, and the former law is continued in effect for that purpose.

(b) The Office of Court Administration of the Texas Judicial System shall adopt the model affidavit required by Article 68.008, Code of Criminal Procedure, as added by this Act, not later than December 1, 2023.

SECTION 6. The change in law made by this Act relating to the contents of a protective order or a magistrate's order for emergency protection applies to an order issued on or after January 1, 2024. An order issued before that date is governed by the law as it existed immediately before the effective date of this Act, and the former law is continued in effect for that purpose.

SECTION 7. This Act takes effect September 1, 2023.