Bill Text: TX HB55 | 2021 | 87th Legislature 2nd Special Session | Introduced
Bill Title: Relating to creating a criminal offense for the unlawful possession or transfer of an assault weapon.
Sponsorship: Partisan Bill (Democrat 1)
Status: (Introduced - Dead) 2021-08-06 - Filed [HB55 Detail]
Download: Texas-2021-HB55-Introduced.html
| By: Reynolds | H.B. No. 55 | |
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| 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) For purposes of this section, "assault weapon" does not | ||
| include any rifle, shotgun, or pistol that has been rendered | ||
| permanently inoperable. | ||
| (c) 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. | ||
| (d) An offense under this section is a Class A misdemeanor. | ||
| (e) 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. | ||
| (f) It is a defense to prosecution under Subsection (c)(1) | ||
| that the actor lawfully possessed the assault weapon on November | ||
| 30, 2021. | ||
| (g) 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;[ |
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| (2) [ |
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| 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) | ||
| [ |
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| 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; [ |
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| (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, [ |
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| 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, as effective | ||
| September 1, 2021, 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, [ |
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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; | ||
| (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 | ||
| disabled individual 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;[ |
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| (2) [ |
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| 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; [ |
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| (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 December 1, 2021. | ||
