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A BILL TO BE ENTITLED
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AN ACT
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relating to criminal history background checks in connection with |
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firearm transfers; creating offenses. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 411, Government Code, is amended by |
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adding Subchapter H-1 to read as follows: |
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SUBCHAPTER H-1. FIREARM BACKGROUND CHECKS |
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Sec. 411.221. DEFINITIONS. In this subchapter: |
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(1) "Firearm" has the meaning assigned by 18 U.S.C. |
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Section 921(a)(3). |
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(2) "National instant criminal background check |
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system" means the national instant criminal background check system |
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created by Pub. L. No. 103-159. |
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(3) "Transfer" means the sale or delivery of any |
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firearm in this state to a transferee. The term includes redemption |
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of a pawned firearm by any person who is not licensed as a federal |
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firearms licensee by the Bureau of Alcohol, Tobacco, Firearms and |
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Explosives. The term does not include the return or replacement of |
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a firearm that has been delivered to a federal firearms licensee for |
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the sole purpose of repair or customizing. |
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(4) "Transferee" means any person who is not licensed |
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as a federal firearms licensee by the Bureau of Alcohol, Tobacco, |
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Firearms and Explosives, or any of its successor agencies, in |
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accordance with 18 U.S.C. Chapter 44 and to whom a transferor wishes |
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to sell or deliver a firearm. |
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(5) "Transferor" means any licensed importer, |
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licensed manufacturer, or licensed dealer as defined by 18 U.S.C. |
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Sections 921(a)(9), (10), and (11). |
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Sec. 411.222. STATE POINT OF CONTACT. The department |
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serves as the state point of contact for: |
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(1) implementation of 18 U.S.C. Section 922(t) and all |
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federal regulations and all applicable guidelines adopted under |
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that law; and |
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(2) the national instant criminal background check |
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system. |
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Sec. 411.223. TRANSMISSION OF BACKGROUND CHECK REQUEST. |
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(a) The department, acting as the state point of contact under this |
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subchapter, shall transmit to the national instant criminal |
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background check system a request for a criminal history background |
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check in connection with the prospective transfer of a firearm and |
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may also search other databases. The department shall deny a |
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transfer of a firearm if the transfer would violate 18 U.S.C. |
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Section 922(g) or (n) or any law of this state. |
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(b) In addition to the grounds for denial specified in |
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Subsection (a), the department shall deny a transfer of a firearm |
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if, on or after the date a request for a criminal history background |
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check is initiated, the prospective transferee: |
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(1) is arrested for or charged with an offense for |
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which the prospective transferee, if convicted, would be prohibited |
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under state or federal law from purchasing, receiving, or |
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possessing a firearm and there is no final disposition of the case; |
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or |
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(2) is charged with an offense punishable by |
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confinement for a term exceeding one year and there is no final |
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disposition of the case. |
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(c) The department may cooperate with federal, state, and |
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local law enforcement agencies to retrieve or assist any other law |
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enforcement agency in retrieving a firearm transferred in violation |
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of this subchapter and may assist in any prosecution related to a |
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transfer made in violation of this subchapter. |
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Sec. 411.224. PROCESSING INFORMATION. The department shall |
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receive and process information concerning final case disposition |
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data in this state within 72 hours after the final disposition of |
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the case for purposes of carrying out the department's duties under |
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this subchapter. |
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Sec. 411.225. NOTIFICATION OF DENIAL. (a) On denial of a |
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firearm transfer, the department shall notify the transferor and |
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send notice of the denial to the national instant criminal |
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background check system, as required by 18 U.S.C. Section 922(t). |
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The department shall also immediately send notification of the |
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denial and the basis for the denial to the federal, state, and local |
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law enforcement agencies having jurisdiction in the county in which |
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the prospective transferee resides and in which the transferor |
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conducts any business. |
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(b) On denial of a firearm transfer, the transferor shall |
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provide the prospective transferee with written information |
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prepared by the department concerning the procedure by which the |
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prospective transferee, within 30 days after the denial, may |
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request a review of the denial and of the criminal history record |
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information that prompted the denial. Within 30 days after |
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receiving a request from a prospective transferee under this |
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subsection, the department shall: |
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(1) perform a thorough review of the criminal history |
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record information that prompted the denial; and |
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(2) render a final administrative decision regarding |
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the denial within 30 days after receiving information from the |
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prospective transferee that alleges the transfer was improperly |
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denied. |
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(c) If the department withdraws a denial, the department |
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shall immediately request that the agency that provided the |
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criminal history record information prompting the denial make a |
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permanent change to the information as necessary to make the |
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information accurate. The department shall also immediately |
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provide notification of a withdrawal of a denial to all agencies and |
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entities that were previously notified of a denial under Subsection |
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(a). |
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Sec. 411.226. INFORMATION ON WARRANTS. If in the course of |
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conducting a criminal history background check under this |
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subchapter the department obtains information that indicates the |
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prospective transferee is the subject of an outstanding warrant, |
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the department shall immediately provide notice of the warrant to |
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the federal, state, and local law enforcement agencies having |
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jurisdiction in the county in which the prospective transferee |
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resides and in which the transferor conducts any business. |
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Sec. 411.227. RULES. (a) The director or the director's |
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designee shall adopt rules necessary to: |
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(1) carry out the duties of the department under this |
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subchapter; and |
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(2) ensure the proper maintenance, confidentiality, |
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and security of all records and data provided under this |
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subchapter. |
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(b) The rules adopted under Subsection (a) must include |
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procedures regarding: |
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(1) the manner in which a prospective transferee whose |
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transfer is denied may request a review of the denial and of the |
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criminal history record information that prompted the denial; |
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(2) the retention of records obtained or created for |
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purposes of this subchapter or for implementation of 18 U.S.C. |
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Section 922(t), except that the rules must state that the |
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department may not retain a record for more than 48 hours after the |
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date on which the department approves a transfer; and |
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(3) the collection of information from and proper |
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identification of a prospective transferee, including forms |
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adopted by the department for those purposes. |
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(c) In addition to the procedures described by Subsection |
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(b), the rules adopted under Subsection (a) shall establish |
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requirements for the department to: |
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(1) be open for business at least 12 hours each day, |
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except Christmas Day and Thanksgiving Day, to transmit the requests |
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for criminal history background checks to the national instant |
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criminal background check system and to search other databases; |
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(2) provide a toll-free telephone number for any |
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person calling from within this state that is operational every day |
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that the department is open for business under Subdivision (1); and |
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(3) employ and train personnel as necessary to ensure |
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prompt processing of the reasonably anticipated volume of requests |
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for criminal history background checks received under this |
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subchapter. |
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Sec. 411.228. CIVIL CAUSES OF ACTION. This subchapter does |
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not create a civil cause of action for damages in addition to those |
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causes of action available under Chapter 101, Civil Practice and |
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Remedies Code. |
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Sec. 411.229. CONFLICT WITH CODE OF CRIMINAL PROCEDURE. If |
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a provision of this subchapter conflicts with a provision of the |
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Code of Criminal Procedure governing the transfer of a firearm, |
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this subchapter controls. |
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Sec. 411.230. OFFENSES. (a) A person commits an offense if |
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the person: |
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(1) is a transferor who knowingly requests a criminal |
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history background check or any specific criminal history record |
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information under false pretenses or knowingly disseminates |
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criminal history record information to any other person other than |
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the subject of the information; or |
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(2) is an agent or employee or former agent or employee |
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of the department who knowingly violates this subchapter. |
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(b) An offense under Subsection (a) is a Class A |
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misdemeanor. |
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(c) The provisions of Chapter 37, Penal Code, apply to |
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statements and actions made as required by this subchapter. |
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Sec. 411.231. IMMUNITIES FOR TRANSFEROR. A transferor who |
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complies with this subchapter is not subject to civil or criminal |
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liability or a regulatory sanction that otherwise would arise from |
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the lawful transfer or lawful denial of the transfer of a firearm. |
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Sec. 411.232. FAMILY TRANSFERS. This subchapter does not |
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apply to transfers between transferors and transferees related |
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within the third degree by consanguinity or within the second |
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degree by affinity, as determined under Chapter 573. |
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SECTION 2. Sections 46.06(a) and (b), Penal Code, are |
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amended to read as follows: |
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(a) A person commits an offense if the person: |
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(1) sells, rents, leases, loans, or gives a handgun to |
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any person knowing that the person to whom the handgun is to be |
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delivered intends to use it unlawfully or in the commission of an |
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unlawful act; |
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(2) intentionally or knowingly sells, rents, leases, |
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or gives or offers to sell, rent, lease, or give to any child |
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younger than 18 years any firearm, club, or illegal knife; |
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(3) intentionally, knowingly, or recklessly sells a |
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firearm or ammunition for a firearm to any person who is |
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intoxicated; |
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(4) knowingly sells a firearm or ammunition for a |
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firearm to any person who has been convicted of a felony before the |
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fifth anniversary of the later of the following dates: |
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(A) the person's release from confinement |
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following conviction of the felony; or |
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(B) the person's release from supervision under |
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community supervision, parole, or mandatory supervision following |
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conviction of the felony; |
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(5) sells, rents, leases, loans, or gives a handgun to |
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any person knowing that an active protective order is directed to |
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the person to whom the handgun is to be delivered; [or] |
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(6) knowingly purchases, rents, leases, or receives as |
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a loan or gift from another a handgun while an active protective |
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order is directed to the actor; or |
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(7) intentionally, knowingly, or recklessly transfers |
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a firearm without obtaining approval for the transfer following a |
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criminal history background check under Subchapter H-1, Chapter |
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411, Government Code, unless the transfer is to an immediate family |
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member. |
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(b) In this section: |
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(1) "Intoxicated" means substantial impairment of |
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mental or physical capacity resulting from introduction of any |
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substance into the body. |
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(2) "Active protective order" means a protective order |
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issued under Title 4, Family Code, that is in effect. The term does |
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not include a temporary protective order issued before the court |
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holds a hearing on the matter. |
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(3) "Immediate family member" means related within the |
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third degree by consanguinity or within the second degree by |
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affinity, as determined under Chapter 573, Government Code. |
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(4) "Transfer" has the meaning assigned by Section |
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411.221, Government Code. |
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SECTION 3. The change in law made by this Act to Section |
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46.06, Penal Code, applies only to an offense committed on or after |
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the effective date of this Act. An offense committed before the |
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effective date of this Act is governed by the law in effect on the |
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date the offense was committed, and the former law is continued in |
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effect for that purpose. For purposes of this section, an offense |
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was committed before the effective date of this Act if any element |
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of the offense occurred before that date. |
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SECTION 4. This Act takes effect September 1, 2013. |