Bill Text: TX SB110 | 2021-2022 | 87th Legislature | Introduced


Bill Title: Relating to extreme risk protective orders; creating criminal offenses.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2021-03-03 - Referred to State Affairs [SB110 Detail]

Download: Texas-2021-SB110-Introduced.html
  87R1794 TSS-D
 
  By: West S.B. No. 110
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to extreme risk protective orders; creating criminal
  offenses.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Chapter 7B, Code of Criminal Procedure, is
  amended by adding Subchapter D to read as follows:
  SUBCHAPTER D. EXTREME RISK PROTECTIVE ORDER
         Art. 7B.151.  DEFINITIONS. In this subchapter:
               (1)  "Bodily injury" and "serious bodily injury" have
  the meanings assigned by Section 1.07, Penal Code.
               (2)  "Family," "family violence," and "household" have
  the meanings assigned by Chapter 71, Family Code.
               (3)  "Firearm" has the meaning assigned by Section
  46.01, Penal Code.
               (4)  "Local mental health authority" has the meaning
  assigned by Section 571.003, Health and Safety Code.
               (5)  "Serious mental illness" has the meaning assigned
  by Section 1355.001, Insurance Code.
         Art. 7B.152.  APPLICATION FOR EXTREME RISK PROTECTIVE ORDER.
  (a) An application for a protective order under this subchapter may
  be filed by:
               (1)  a member of the respondent's family or household;
               (2)  a parent, guardian, or conservator of a person who
  is under 18 years of age and a member of the respondent's family or
  household; or
               (3)  a prosecuting attorney acting:
                     (A)  on behalf of a person described by
  Subdivision (1) or (2); or
                     (B)  at the request of a peace officer.
         (b)  An application must:
               (1)  include:
                     (A)  detailed allegations, based on personal
  knowledge of a person described by Subsection (a)(1) or (2) or of a
  peace officer, regarding any dangerous behavior or conduct
  exhibited by the respondent as a result of a serious mental illness,
  including any behavior or conduct related to the respondent's use
  of firearms;
                     (B)  any relevant medical or mental health
  information concerning the respondent, including copies of
  relevant medical or mental health records, if available;
                     (C)  information concerning the quantity, type,
  and location of any firearms the applicant believes to be in the
  respondent's possession or control, if any;
                     (D)  any other relevant facts indicating a need
  for a protective order under this subchapter;
                     (E)  a statement that the applicant believes the
  respondent poses an immediate and present danger of causing bodily
  injury, serious bodily injury, or death to any person, including
  the respondent, as a result of the respondent's serious mental
  illness and access to firearms; and
                     (F)  for an applicant described by Subsection
  (a)(3), a statement that the applicant provided notice under
  Subsection (d) or that the applicant intends to provide that notice
  promptly and indicating the manner in which the notice is to be
  provided; and
               (2)  be signed by the applicant under an oath that, to
  the knowledge and belief of the applicant, the facts and
  circumstances contained in the application are true.
         (c)  An application for a protective order under this
  subchapter may be filed in a district court, juvenile court having
  the jurisdiction of a district court, statutory county court, or
  constitutional county court in the county in which the applicant or
  the respondent resides.
         (d)  An applicant described by Subsection (a)(3), before
  filing an application under this subchapter or promptly following
  filing the application, shall make a good faith attempt to notify a
  member of the respondent's family or household and any other person
  that the applicant believes may be at risk as a result of the
  respondent's dangerous behavior or conduct of:
               (1)  the application filed or the applicant's intent to
  file an application under this subchapter; and
               (2)  available mental health, family violence, and
  counseling resources.
         Art. 7B.153.  CONFIDENTIALITY OF CERTAIN INFORMATION. On
  receiving an application containing specific medical or mental
  health information concerning the respondent, the court shall order
  the clerk to:
               (1)  strike the information from the public records of
  the court; and
               (2)  maintain a confidential record of the information
  for use only by the court.
         Art. 7B.154.  TEMPORARY EX PARTE ORDER. (a)  If the court
  finds from the information contained in an application for a
  protective order under this subchapter that there is reasonable
  cause to believe that the respondent poses an immediate and present
  danger of causing bodily injury, serious bodily injury, or death to
  any person, including the respondent, as a result of the
  respondent's serious mental illness and access to firearms, the
  court, without further notice to the respondent and without a
  hearing, may issue a temporary ex parte order prohibiting the
  respondent from purchasing, owning, possessing, or controlling a
  firearm.
         (b)  In a temporary ex parte order, the court may order the
  respondent to:
               (1)  relinquish, without delay, any firearms owned by
  or in the actual or constructive possession or control of the
  respondent to a law enforcement agency for holding in the manner
  provided by Article 18.192;
               (2)  if applicable, surrender to the court the
  respondent's license to carry a handgun issued under Subchapter H,
  Chapter 411, Government Code; and
               (3)  for purposes of determining whether the respondent
  has a serious mental illness, submit to an examination by the local
  mental health authority or a disinterested expert who is qualified
  to diagnose, and experienced in diagnosing, mental illness.
         Art. 7B.155.  HEARING; ISSUANCE OF PROTECTIVE ORDER. (a)
  Not later than the 14th day after the later of the date an
  application is filed or the date a temporary ex parte order is
  issued, the court shall hold a hearing on the issuance of the
  protective order.
         (b)  The court shall provide personal notice of the hearing
  to the respondent.
         (c)  In determining whether to issue a protective order under
  this article, the court:
               (1)  shall consider:
                     (A)  the results of any examination described by
  Article 7B.154(b)(3);
                     (B)  any relevant medical or mental health
  information concerning the respondent;
                     (C)  any history of threats or acts of violence by
  the respondent directed at any person, including the respondent;
                     (D)  any history of the respondent using,
  attempting to use, or threatening to use physical force against
  another person;
                     (E)  any recent violation by the respondent of an
  order issued:
                           (i)  under another provision of this chapter
  or under Article 17.292;
                           (ii)  under Section 6.504 or Chapter 85,
  Family Code;
                           (iii)  under Chapter 83, Family Code, if the
  temporary ex parte order has been served on the respondent; or
                           (iv)  by another jurisdiction as provided by
  Chapter 88, Family Code;
                     (F)  any arrest or conviction of the respondent
  for:
                           (i)  an offense under Section 42.072, Penal
  Code; or
                           (ii)  a misdemeanor offense involving
  violence, including family violence;
                     (G)  any conviction of the respondent for an
  offense under Section 42.09, 42.091, or 42.092, Penal Code; and
                     (H)  evidence related to the respondent's abuse of
  a controlled substance or alcohol, including evidence of any
  treatment for and recovery from abusing a controlled substance or
  alcohol; and
               (2)  may consider any other relevant factor including:
                     (A)  any previous violation by the respondent of
  an order described by Subdivision (1)(E); and
                     (B)  evidence regarding the respondent's recent
  acquisition of firearms, ammunition, or other deadly weapons.
         (d)  At the close of the hearing, if the court finds by clear
  and convincing evidence that the respondent poses an immediate and
  present danger of causing bodily injury, serious bodily injury, or
  death to any person, including the respondent, as a result of the
  respondent's serious mental illness and access to firearms, the
  court shall issue a protective order that includes a statement of
  the required finding.
         (e)  If the court does not make the finding described by
  Subsection (d), the court shall, as applicable, immediately rescind
  any temporary ex parte order issued under Article 7B.154 and return
  the respondent's license to carry a handgun.
         Art. 7B.156.  CONTENTS OF PROTECTIVE ORDER. In a protective
  order issued under Article 7B.155, the court shall:
               (1)  prohibit the person who is subject to the order
  from purchasing, owning, possessing, or controlling a firearm for
  the duration of the order;
               (2)  order the person to:
                     (A)  relinquish, without delay, any firearms
  owned by or in the actual or constructive possession or control of
  the person to a law enforcement agency for holding in the manner
  provided by Article 18.192;
                     (B)  if applicable, surrender to the court the
  person's license to carry a handgun issued under Subchapter H,
  Chapter 411, Government Code; and
                     (C)  if applicable, receive outpatient mental
  health services if recommended by the local mental health authority
  or expert after the authority or expert performs an examination
  described by Article 7B.154(b)(3); and
               (3)  suspend a license to carry a handgun issued under
  Subchapter H, Chapter 411, Government Code, that is held by the
  person.
         Art. 7B.157.  DURATION OF PROTECTIVE ORDER. (a)  A
  protective order issued under Article 7B.155 is effective until the
  first anniversary of the date the order was issued.
         (b)  The court may renew a protective order issued under
  Article 7B.155 for a period not to exceed one year after the order's
  original expiration date. Before renewing the order the court must
  hold a hearing and provide personal notice of the hearing to the
  person who is the subject of the order.
         (c)  A person who is the subject of a protective order may
  file a motion not earlier than the 91st day after the date on which
  the order was initially issued or renewed, as applicable,
  requesting that the court review the order and determine whether
  there is a continuing need for the order. After a hearing on the
  motion, if the court fails to make the finding that there is no
  continuing need for the order, the order remains in effect until the
  date the order expires as provided by this article.
         (d)  At a hearing to renew or rescind a protective order
  under this article, the court shall consider the factors described
  by Article 7B.155(c).
         Art. 7B.158.  NOTICE TO DEPARTMENT OF PUBLIC SAFETY. (a)
  Not later than the 30th day after the date a protective order is
  issued under Article 7B.155, the clerk of the issuing court shall
  provide the following to the Department of Public Safety:
               (1)  the complete name, race, and sex of the person who
  is the subject of the order;
               (2)  any known identifying number of the person,
  including a social security number, driver's license number, or
  state identification number;
               (3)  the person's date of birth;
               (4)  if surrendered to the court, the person's license
  to carry a handgun issued under Subchapter H, Chapter 411,
  Government Code; and
               (5)  a copy of the order suspending the person's license
  to carry a handgun under Subchapter H, Chapter 411, Government
  Code.
         (b)  On receipt of an order suspending a license to carry a
  handgun, the Department of Public Safety shall:
               (1)  record the suspension of the license in the
  records of the department;
               (2)  report the suspension to local law enforcement
  agencies, as appropriate; and
               (3)  if the license was not surrendered to the court,
  demand surrender of the suspended license from the license holder.
         (c)  Not later than the 30th day after the date the
  protective order expires under Article 7B.157, the clerk of the
  issuing court shall notify the Department of Public Safety of the
  expiration.
         Art. 7B.159.  APPLICATION OF OTHER LAW. Except as otherwise
  provided by this subchapter and to the extent applicable, Title 4,
  Family Code, applies to a protective order issued under this
  subchapter.
         SECTION 2.  Chapter 18, Code of Criminal Procedure, is
  amended by adding Article 18.192 to read as follows:
         Art. 18.192.  HOLDING AND DISPOSITION OF FIREARM
  RELINQUISHED UNDER EXTREME RISK PROTECTIVE ORDER. (a) A law
  enforcement officer who takes possession of a firearm from a person
  who is the subject of an extreme risk protective order issued under
  Subchapter D, Chapter 7B, shall immediately provide the person a
  written copy of the receipt for the firearm and a written notice of
  the procedure for the return of a firearm under this article.
         (b)  Not later than the seventh day after the date a firearm
  subject to disposition under this article is received, the law
  enforcement agency holding the firearm shall notify the court that
  issued the extreme risk protective order that the person who is the
  subject of the order has relinquished the firearm.
         (c)  Not later than the 30th day after the date the extreme
  risk protective order is rescinded or expires, the clerk of the
  court shall notify the law enforcement agency of the rescission or
  expiration.
         (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), 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 the person
  submits a written request before the 121st day after the date of the
  notice.
         (f)  An unclaimed firearm that is received under an extreme
  risk protective order issued under Subchapter D, Chapter 7B, may
  not be destroyed or forfeited to the state.
         (g)  The law enforcement agency holding the firearm may
  provide for the firearm to be sold by a person who is a licensed
  firearms dealer under 18 U.S.C. Section 923 if:
               (1)  the check conducted under Subsection (d) shows
  that the person who was the subject of the extreme risk protective
  order may not lawfully possess a firearm; or
               (2)  the notice is provided under Subsection (e) and
  the person who was the subject of the extreme risk protective order
  does not submit, before the 121st day after the date of the notice,
  a written request for the return of the firearm.
         (h)  The proceeds from the sale of a firearm under this
  article shall be paid to the owner of the seized firearm, less the
  cost of administering this article with respect to the firearm.
         (i)  A law enforcement officer or other employee of a law
  enforcement agency is subject to punishment for contempt of court
  if the officer or employee violates this article with the intent to
  withhold a firearm from a person who, at the time the violation
  occurred:
               (1)  was the subject of an extreme risk protective
  order that was rescinded or that expired; and
               (2)  may lawfully possess the firearm.
         SECTION 3.  Subchapter D, Chapter 411, Government Code, is
  amended by adding Section 411.0522 to read as follows:
         Sec. 411.0522.  INFORMATION CONCERNING EXTREME RISK
  PROTECTIVE ORDER. (a) The department by rule shall establish a
  procedure to provide information concerning a person who is the
  subject of an extreme risk protective order issued under Subchapter
  D, Chapter 7B, Code of Criminal Procedure, to the Federal Bureau of
  Investigation for inclusion in the National Instant Criminal
  Background Check System.
         (b)  The procedure must require the department to provide any
  information received under Article 7B.158, Code of Criminal
  Procedure, to the Federal Bureau of Investigation not later than
  the 30th day after the date the department received the
  information.
         SECTION 4.  Section 411.172(a), Government Code, is amended
  to read as follows:
         (a)  A person is eligible for a license to carry a handgun if
  the person:
               (1)  is a legal resident of this state for the six-month
  period preceding the date of application under this subchapter or
  is otherwise eligible for a license under Section 411.173(a);
               (2)  is at least 21 years of age;
               (3)  has not been convicted of a felony;
               (4)  is not charged with the commission of a Class A or
  Class B misdemeanor or equivalent offense, or of an offense under
  Section 42.01, Penal Code, or equivalent offense, or of a felony
  under an information or indictment;
               (5)  is not a fugitive from justice for a felony or a
  Class A or Class B misdemeanor or equivalent offense;
               (6)  is not a chemically dependent person;
               (7)  is not incapable of exercising sound judgment with
  respect to the proper use and storage of a handgun;
               (8)  has not, in the five years preceding the date of
  application, been convicted of a Class A or Class B misdemeanor or
  equivalent offense or of an offense under Section 42.01, Penal
  Code, or equivalent offense;
               (9)  is fully qualified under applicable federal and
  state law to purchase a handgun;
               (10)  has not been finally determined to be delinquent
  in making a child support payment administered or collected by the
  attorney general;
               (11)  has not been finally determined to be delinquent
  in the payment of a tax or other money collected by the comptroller,
  the tax collector of a political subdivision of the state, or any
  agency or subdivision of the state;
               (12)  is not currently:
                     (A)  restricted under a court protective order,
  including an extreme risk protective order issued under Subchapter
  D, Chapter 7B, Code of Criminal Procedure; or
                     (B)  subject to a restraining order affecting the
  spousal relationship, other than a restraining order solely
  affecting property interests;
               (13)  has not, in the 10 years preceding the date of
  application, been adjudicated as having engaged in delinquent
  conduct violating a penal law of the grade of felony; and
               (14)  has not made any material misrepresentation, or
  failed to disclose any material fact, in an application submitted
  pursuant to Section 411.174.
         SECTION 5.  Sections 411.187(a) and (c), Government Code,
  are amended to read as follows:
         (a)  The department shall suspend a license under this
  section if the license holder:
               (1)  is charged with the commission of a Class A or
  Class B misdemeanor or equivalent offense, or of an offense under
  Section 42.01, Penal Code, or equivalent offense, or of a felony
  under an information or indictment;
               (2)  fails to notify the department of a change of
  address, name, or status as required by Section 411.181;
               (3)  commits an act of family violence and is the
  subject of an active protective order rendered under Title 4,
  Family Code; [or]
               (4)  is arrested for an offense involving family
  violence or an offense under Section 42.072, Penal Code, and is the
  subject of an order for emergency protection issued under Article
  17.292, Code of Criminal Procedure; or
               (5)  is the subject of an active protective order
  issued under Subchapter D, Chapter 7B, Code of Criminal Procedure.
         (c)  The department shall suspend a license under this
  section:
               (1)  for 30 days, if the person's license is subject to
  suspension for a reason listed in Subsection (a)(2)[, (3), or (4),
  except as provided by Subdivision (2)];
               (2)  [for not less than one year and not more than three
  years, if the person's license:
                     [(A)  is subject to suspension for a reason listed
  in Subsection (a), other than the reason listed in Subsection
  (a)(1); and
                     [(B)  has been previously suspended for the same
  reason;
               [(3)]  until dismissal of the charges, if the person's
  license is subject to suspension for the reason listed in
  Subsection (a)(1); or
               (3) [(4)]  for the duration of or the period specified
  by:
                     (A)  the protective order issued under Title 4,
  Family Code, if the person's license is subject to suspension for
  the reason listed in Subsection (a)(3) [(a)(5)]; [or]
                     (B)  the order for emergency protection issued
  under Article 17.292, Code of Criminal Procedure, if the person's
  license is subject to suspension for the reason listed in
  Subsection (a)(4); or
                     (C)  the extreme risk protective order issued
  under Subchapter D, Chapter 7B, Code of Criminal Procedure, if the
  person's license is subject to suspension for the reason listed in
  Subsection (a)(5) [(a)(6)].
         SECTION 6.  Chapter 37, Penal Code, is amended by adding
  Section 37.083 to read as follows:
         Sec. 37.083.  FALSE REPORT REGARDING REQUEST FOR EXTREME
  RISK PROTECTIVE ORDER. (a) In this section, "prosecuting
  attorney" means a district attorney, criminal district attorney, or
  county attorney.
         (b)  A person commits an offense if, with intent to deceive,
  the person knowingly makes to a prosecuting attorney or peace
  officer a false statement relating to a request that a prosecuting
  attorney file an application for an extreme risk protective order
  under Subchapter D, Chapter 7B, Code of Criminal Procedure.
         (c)  An offense under this section is a Class A misdemeanor.
         SECTION 7.  Section 46.06(a), Penal Code, is amended to read
  as follows:
         (a)  A person commits an offense if the person:
               (1)  sells, rents, leases, loans, or gives a handgun to
  any person knowing that the person to whom the handgun is to be
  delivered intends to use it unlawfully or in the commission of an
  unlawful act;
               (2)  intentionally or knowingly sells, rents, leases,
  or gives or offers to sell, rent, lease, or give to any child
  younger than 18 years of age any firearm, club, or
  location-restricted knife;
               (3)  intentionally, knowingly, or recklessly sells a
  firearm or ammunition for a firearm to any person who is
  intoxicated;
               (4)  knowingly sells a firearm or ammunition for a
  firearm to any person who has been convicted of a felony before the
  fifth anniversary of the later of the following dates:
                     (A)  the person's release from confinement
  following conviction of the felony; or
                     (B)  the person's release from supervision under
  community supervision, parole, or mandatory supervision following
  conviction of the felony;
               (5)  sells, rents, leases, loans, or gives a handgun to
  any person knowing that an active protective order is directed to
  the person to whom the handgun is to be delivered;
               (6)  sells, rents, leases, loans, or gives a firearm to
  any person knowing that an active extreme risk protective order
  under Subchapter D, Chapter 7B, Code of Criminal Procedure, is
  directed to the person to whom the firearm is to be delivered; or
               (7) [(6)]  knowingly purchases, rents, leases, or
  receives as a loan or gift from another a handgun while an active
  protective order is directed to the actor.
         SECTION 8.  Section 46.06, Penal Code, as amended by this
  Act, applies only to an offense committed on or after the effective
  date of this Act. An offense committed before the effective date of
  this Act is governed by the law in effect on the date the offense was
  committed, and the former law is continued in effect for that
  purpose. For purposes of this section, an offense was committed
  before the effective date of this Act if any element of the offense
  occurred before that date.
         SECTION 9.  Not later than October 1, 2021, the Department of
  Public Safety shall adopt rules as required by Section 411.0522,
  Government Code, as added by this Act.
         SECTION 10.  This Act takes effect September 1, 2021.
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