87R10322 TSS-D
	By: Goodwin	H.B. No. 2878

	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.
	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:
	(A)  under 18 years of age; and
	(B)  a member of the respondent's family or
	household; or
	(3)  a peace officer.
	(b)  An application must:
	(1)  include:
	(A)  detailed allegations, based on personal
	knowledge of a person described by Subsection (a), regarding any
	dangerous behavior or conduct exhibited by the respondent,
	including any behavior or conduct related to the respondent's use
	of firearms;
	(B)  information concerning the quantity, type,
	and location of any firearms the applicant believes to be in the
	respondent's possession or control, if any;
	(C)  any other relevant facts indicating a need
	for a protective order under this subchapter; and
	(D)  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 access to firearms;
	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.
	Art. 7B.153.  CONFIDENTIALITY OF CERTAIN INFORMATION. On
	receiving an application containing specific 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 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)  not later than 24 hours after the time the order is
	issued, relinquish 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; and
	(2)  if applicable, surrender to the court the
	respondent's license to carry a handgun issued under Subchapter H,
	Chapter 411, Government Code.
	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)  any history of threats or acts of violence by
	the respondent directed at any person, including the respondent;
	(B)  any history of the respondent using,
	attempting to use, or threatening to use physical force against
	another person;
	(C)  any recent violation by the respondent of an
	order issued:
	(i)  under another provision of Chapter 7B
	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;
	(D)  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;
	(E)  any conviction of the respondent for an
	offense under Section 42.09, 42.091, or 42.092, Penal Code; and
	(F)  evidence related to the respondent's current
	or recent abuse of a controlled substance or alcohol, not including
	any evidence of previous treatment for or 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)(C); 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 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, 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)  not later than 24 hours after the time the
	order is issued, relinquish 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; and
	(B)  if applicable, surrender to the court the
	person's license to carry a handgun issued under Subchapter H,
	Chapter 411, Government Code; 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 24 hours after the time 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 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. To the extent
	applicable, except as otherwise provided by this subchapter, 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 may not lawfully possess a firearm; or
	(2)  the notice is provided under Subsection (e) and
	the person 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.
	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 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 24
	hours after the time 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) A person commits an offense if, with
	intent to deceive, the person makes a statement that the person
	knows to be false to a peace officer relating to a request that the
	officer file an application for an extreme risk protective order
	under Subchapter D, Chapter 7B, Code of Criminal Procedure.
	(b)  An offense under this section is a Class B misdemeanor.
	(c)  If conduct that constitutes an offense under this
	section also constitutes an offense under another law, the actor
	may be prosecuted under this section, the other law, or both.
	SECTION 7.  Section 46.04, Penal Code, is amended by adding
	Subsection (c-1) and amending Subsection (e) to read as follows:
	(c-1)  A person commits an offense if, after receiving notice
	that the person is subject to an extreme risk protective order
	issued under Subchapter D, Chapter 7B, Code of Criminal Procedure,
	and before expiration of the order, the person purchases, owns,
	possesses, or controls a firearm in violation of the order.
	(e)  An offense under Subsection (a) is a felony of the third
	degree. An offense under Subsection (b), [or] (c), or (c-1) is a
	Class A misdemeanor.
	SECTION 8.  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 9.  This Act takes effect September 1, 2021.