84R432 SCL-F
 
  By: Kleinschmidt H.B. No. 176
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to protection of the right to keep and bear arms within the
  State of Texas.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  This Act shall be known as the Second Amendment
  Preservation Act.
         SECTION 2.  The legislature finds and declares the
  following:
               (1)  The legislature is firmly resolved to support and
  defend the United States Constitution against every aggression,
  either foreign or domestic, and oppose every infraction of the
  principles that constitute the basis of the union of the states
  because only a faithful observance of those principles can secure
  the nation's existence and the public's happiness.
               (2)  Acting through the United States Constitution, the
  people of the several states created the federal government to be
  the people's agent in the exercise of a few defined powers, while
  reserving to the state governments the power to legislate on
  matters that concern the lives, liberties, and properties of
  citizens in the ordinary course of affairs.
               (3)  The limitation of the federal government's power
  is affirmed under the Tenth Amendment to the United States
  Constitution, which defines the total scope of federal power as
  being that which has been delegated by the people to the federal
  government, and all power not delegated to the federal government
  in the United States Constitution is reserved to the states or to
  the people.
               (4)  If the federal government assumes powers that the
  people did not grant to the federal government in the United States
  Constitution, the federal government's acts are unauthoritative,
  void, and of no force.
               (5)  The several states respect the proper role of the
  federal government, but reject the proposition that such respect
  requires unlimited submission. If the federal government, created
  by compact among the states, was the exclusive or final judge of the
  extent of the powers granted to the federal government by the states
  through the constitution, the federal government's discretion, and
  not the constitution, would necessarily become the measure of those
  powers. To the contrary, as in all other cases of compacts among
  powers having no common judge, each party has an equal right to
  judge whether infractions of the compact have occurred, as well as
  to determine the mode and measure of redress. Although the states
  have granted supremacy to laws and treaties made pursuant to the
  powers granted in the constitution, that supremacy does not extend
  to various federal statutes, executive orders, administrative
  orders, court orders, rules, regulations, and other actions that
  restrict or prohibit the manufacture, ownership, and use of
  firearms, firearm accessories, or firearm ammunition exclusively
  within the borders of Texas. Such federal actions exceed the powers
  granted to the federal government except to the extent that they are
  necessary and proper for governing the United States armed forces
  or militia forces actively employed in the service of the armed
  forces.
               (6)  The people of the several states have, in Article
  I, Section 8, of the United States Constitution, given Congress the
  power "to regulate Commerce with foreign Nations, and among the
  several States," but "regulating commerce" does not include the
  power to limit citizens' right to keep and bear arms in defense of
  the citizens' families, neighbors, persons, or property, or to
  dictate as to what type of arms and accessories law-abiding,
  mentally competent Texans may buy, sell, exchange, or otherwise
  possess within the borders of this state.
               (7)  The people of the several states have, in Article
  I, Section 8, of the United States Constitution, also granted
  Congress the power to "lay and collect Taxes, Duties, Imposts and
  Excises, to pay the Debts and provide for the common Defence and
  general Welfare of the United States" and to "make all Laws which
  shall be necessary and proper for carrying into Execution the . . .
  Powers vested by [the] Constitution in the Government of the United
  States, or in any Department or Officer thereof." These
  constitutional provisions merely identify the means by which the
  federal government may execute the federal government's limited
  powers and ought not to be construed to grant unlimited powers
  because to do so would destroy the carefully constructed
  equilibrium between the federal and state governments.
  Consequently, the legislature rejects any claim that the taxing and
  spending powers of Congress can be used to diminish in any way the
  right of the people to keep and bear arms.
               (8)  The people of Texas have vested the legislature
  with the authority to regulate the manufacture, possession,
  exchange, and use of firearms within the borders of this state,
  subject only to the limits imposed by the Second Amendment to the
  United States Constitution and Section 23, Article I, Texas
  Constitution.
               (9)  The legislature strongly encourages responsible
  gun ownership, including parental supervision of minors in the
  proper use, storage, and ownership of all firearms, the prompt
  reporting of stolen firearms, and the proper enforcement of all
  state gun laws. The legislature condemns any unlawful transfer of
  firearms and the use of any firearm in any unlawful activity.
         SECTION 3.  Title 5, Civil Practice and Remedies Code, is
  amended by adding Chapter 115 to read as follows:
  CHAPTER 115. PROTECTION OF RIGHT TO KEEP AND BEAR ARMS
         Sec. 115.001.  DEFINITIONS. In this chapter:
               (1)  "Government agency" means:
                     (A)  this state or a municipality or other
  political subdivision of this state; and
                     (B)  any agency of this state or a municipality or
  other political subdivision of this state, including a department,
  bureau, board, commission, office, agency, council, or public
  institution of higher education.
               (2)  "Law-abiding citizen" means an individual who:
                     (A)  is legally present in this state; and
                     (B)  may, under the laws of this state, possess a
  firearm.
               (3)  "Right to keep and bear arms" means the right
  guaranteed by the Second Amendment to the United States
  Constitution and Section 23, Article I, Texas Constitution.
         Sec. 115.002.  CERTAIN FEDERAL LAW REGULATING FIREARMS
  INVALID. A federal law, including a statute, an executive,
  administrative, or court order, or a rule, that infringes on a
  law-abiding citizen's right to keep and bear arms under the Second
  Amendment to the United States Constitution or Section 23, Article
  I, Texas Constitution, is invalid and not enforceable in this
  state. A federal law that infringes on a law-abiding citizen's
  right to keep and bear arms includes a law that:
               (1)  imposes a tax, fee, or stamp on a firearm, firearm
  accessory, or firearm ammunition that is not common to all other
  goods and services and may be reasonably expected to create a
  chilling effect on the purchase or ownership of those items by a
  law-abiding citizen;
               (2)  requires the registration or tracking of a
  firearm, firearm accessory, or firearm ammunition or the owners of
  those items that may be reasonably expected to create a chilling
  effect on the purchase or ownership of those items by a law-abiding
  citizen;
               (3)  prohibits the possession, ownership, use, or
  transfer of a firearm, firearm accessory, or firearm ammunition by
  a law-abiding citizen; and
               (4)  orders the confiscation of a firearm, firearm
  accessory, or firearm ammunition from a law-abiding citizen.
         Sec. 115.003.  DUTIES OF COURTS AND LAW ENFORCEMENT
  AGENCIES; ENFORCEMENT BY GOVERNMENT EMPLOYEES, OFFICIALS, AND
  AGENCIES PROHIBITED. (a) Each state court and law enforcement
  agency of this state shall protect a law-abiding citizen's right to
  keep and bear arms.
         (b)  A government agency or an employee or an official of a
  government agency may not enforce a federal law described by
  Section 115.002.
         Sec. 115.004.  REMEDIES. (a) A person who knowingly
  violates Section 115.003(b) is liable under this section to a
  law-abiding citizen whose right to keep and bear arms was infringed
  by the person.
         (b)  A law-abiding citizen described by Subsection (a) may
  recover:
               (1)  declaratory relief under Chapter 37;
               (2)  injunctive relief to prevent the threatened
  violation or continued violation;
               (3)  compensatory damages for pecuniary and
  nonpecuniary losses; and
               (4)  reasonable attorney's fees, court costs, and other
  reasonable expenses required in bringing the action.
         Sec. 115.005.  NOTICE; RIGHT TO ACCOMMODATE. (a) A claimant
  may not bring an action to assert a claim under this chapter unless,
  60 days before bringing the action, the claimant gives to the person
  who violated Section 115.003(b), by certified mail, return receipt
  requested, written notice:
               (1)  that the person has taken or proposes to take an
  enforcement action infringing on the claimant's right to keep and
  bear arms; and
               (2)  of the particular enforcement action giving rise
  to the infringement.
         (b)  Notwithstanding Subsection (a), a claimant may, within
  the 60-day period established by Subsection (a), bring an action
  for declaratory or injunctive relief and associated attorney's
  fees, court costs, and other reasonable expenses, if:
               (1)  infringement on the claimant's right to keep and
  bear arms is imminent; and
               (2)  the claimant was not informed and did not
  otherwise have knowledge of the enforcement action in time to
  reasonably provide the notice.
         (c)  A person who receives a notice under Subsection (a) may
  cure the infringement on the claimant's right to keep and bear arms.
         (d)  A claimant with respect to whom an infringement on the
  claimant's right to keep and bear arms has been cured may not bring
  an action under Section 115.004.
         Sec. 115.006.  ONE-YEAR LIMITATIONS PERIOD. (a) A claimant
  must bring an action to assert a claim for damages under this
  chapter not later than one year after the date the claimant knew or
  should have known of the infringement on the claimant's right to
  keep and bear arms.
         (b)  Mailing notice under Section 115.005 tolls the
  limitations period established under this section until the 75th
  day after the date on which the notice was mailed.
         Sec. 115.007.  SOVEREIGN AND GOVERNMENTAL IMMUNITY WAIVED;
  NO OFFICIAL IMMUNITY. (a) Sovereign and governmental immunity to
  suit and from liability is waived and abolished to the extent of
  liability created by Section 115.004, and a claimant may sue a
  government agency for damages allowed by that section.
         (b)  The affirmative defense of official immunity is not
  available to an employee or official sued under Section 115.004.
         (c)  Notwithstanding Subsection (a), this chapter does not
  waive or abolish sovereign immunity to suit and from liability
  under the Eleventh Amendment to the United States Constitution.
         SECTION 4.  This Act applies only to an infringement on the
  right to keep and bear arms that occurs on or after the effective
  date of this Act.
         SECTION 5.  This Act takes effect September 1, 2015.