Bill Text: TX HB241 | 2021-2022 | 87th Legislature | Introduced

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Bill Title: Relating to creating a criminal offense for the unlawful possession or transfer of an assault weapon.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2021-02-25 - Referred to Homeland Security & Public Safety [HB241 Detail]

Download: Texas-2021-HB241-Introduced.html

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87R65 TSS-D
By: Ortega H.B. No. 241

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