Texas Gun Legislation Review as of 4/16/13

2013 TEXAS LEGISLATIVE SESSION
By Nile Copeland

Texas Gun Legislation Review
Texas Gun Legislation Review as of 4/16/13
Nile Copeland
Nile Copeland

Texas –-(Ammoland.com)- The 83rd Legislature Regular Session is underway and will be addressing one of the hot topics of the day, gun legislation. What follows is some background information and discussion of the bills.

HB 47  Would lower the hours for the initial Concealed Handgun License (CHL) course from 10 hours to “not less than 4 or more than 6, not to include time on the shooting range.”  This bill does not change the written materials or the exam but only impacts the number of classroom hours. The hours were put into statute before the coursework was written and has not been revisited by the Legislature. If HB47 passes, only 6 states out of 39 would require more instruction time than Texas to obtain a state-issued CHL. [Status: 4/09/13, Vote 7-0 Favorable, Sent to Calendars]  Similar Bill is SB 864  [Status: 4/18/13, Vote 7-0 Favorable, Placed on local and uncontested calendar]  
 
HB 508  Provides a fine for the improper posting of the PC 30.06 sign at locations such as the entrance to the Fort Worth Zoo, on the parking lot of a school, the door to a city library, or other locations not listed as “off-limits” in statute and not private property.  [Status: 4/09/13 Vote 7-0 Favorable, Sent to Calendars]
 
HB 698 Would require that digital fingerprinting services be within 25 miles of the applicant.   We have CHLs driving hundreds of miles to the closest L-1 printing franchise.  Rep. Springer’s house district includes 22 rural counties and reasonable access to digital fingerprinting service is not available.  [Status: 4/03/13, Vote 8-0 Favorable, Sent to Calendars]
 
HB 700  A bill allowing a person with a Texas concealed handgun license to have the option of carrying concealed or openly holstered.  A major concern has been for a resurgence of PC 30.06 signs/postings on private property targeting those who carry openly but impacting all with a license. This is being addressed by a committee substitute which would create a PC 30.07 sign restricting only licensed open carry. Law Enforcement did not testify against the measure.  Texas is following Oklahoma’s passage of licensed open carry.  Also, the Mississippi Legislature is in the final stages toward passing “unlicensed open carry”.  [Status: 3/14/13 Left Pending in Committee] See Also HB 1194
 
SB 299  Would amend current law relating to the intentional display of a handgun by a person licensed to carry a concealed handgun. Current law prohibits the intentional failure to conceal a handgun by a person licensed to carry a concealed handgun.  Many feel this language is too broad, and it could lead to prosecutions in situations where the display of the weapon is inadvertent or where the display takes place in an unthreatening manner like the home of a friend.  This bill proposes to clarify the law stating the failure to conceal a handgun is only illegal when the displayed gun is in plain view of another person in a public place and clarifying that is an affirmative defense to the offense that the weapon was displayed pursuant to justified use of force,  as well as deadly force,  under Chapter 9 of the Texas Penal Code. [Status: 04/04/2013, Received in Senate, Passed: Vote 28 to 2 Favorable.]
 
A controversial subject, guns in colleges/schools:  SB 182, HB 1313 [Status: Both In Committee, 1/29/13, 3/14/13] Both allow for adult students, faculty, and staff with a concealed handgun license to carry into the buildings of colleges and universities.  HB 972   [Status: 4/11/13 In Committee, Vote 7-1 Favorable]   to allow adult students, faculty and staff with a concealed handgun license the option of carrying during their daily activities while on campus. Two other bills, HB 1077 and HB 1078 [Status: 3/14/13 Both Pending in Committee] work towards this end as well.  This topic has brought out over 100 witnesses, presenting over 5 hours of live testimony – for and against.
 
HB 1421 Regarding the sale of confiscated firearms. Current Texas law requires that firearms confiscated by law enforcement agencies be destroyed or assigned for law enforcement use. These are firearms which cannot be returned to owners and/or are no longer required to be held as evidence. This measure would allow a law enforcement agency to sell such firearms at public sale to a federal firearms licensee (FFL). After sale and court costs, funds would return to the law enforcement agency previously holding the firearms.  [Status: 4/02/13, Vote 7-0 Favorable, Sent to Calendars]  
 
HB 1304 To provide a more clear definition in statute for the unintentional display of a handgun by a licensee.  [Status: 4/11/13 In Committee, Vote 8-0 Favorable]
 
SB 1348  Relates  to straw purchases of guns that occur when a legally eligible buyer purchases firearms for traffickers or persons who are prohibited from buying guns.  SB 1348 creates an offense and prescribes a penalty for persons who knowingly purchase guns to deliver to persons who cannot legally purchase.  Current Texas law does not address straw purchases, this law will mirror federal law.  [Status: In Committee, Public Hearing scheduled on 4/17/13]  
 
HB 333  Hotels would be required to post their policy regarding firearms on the reservation section of their website and require customers to acknowledge that they have read the policy.  [Status: 3/25/13 Sent to Local and Consent Calendars, Vote: 5-0 in favor]
 
HB 553   The bill would make it an offense for a peace officer, state officer, or state employee to enforce, while acting under color of the person’s office or employment, any federal regulations relating to confiscation of any firearms, banning any firearm, limiting the size of a magazine for any firearm, imposing any limit on the ammunition that may be purchased for any firearm, taxing any firearm or ammunition, or requiring registration of any firearm or ammunition. The bill would create an offense, a Class A misdemeanor, for a public servant who engages in similar enforcement.  The bill would also require the Texas Department of Public Safety to immediately report to the governor, attorney general, and the legislature any attempt by the federal government to implement or enforce any gun control law as described above.  [Status: In Committee 3/13/13]
SB 987   Allows the attorney general to obtain an injunction against a municipality or county that adopts prohibited regulations regarding firearms, ammunition or firearms supplies. [Status: In Committee, 4/15/13 Referred to State Affairs]
SB 1676   Class A Misd for possessing, selling, leasing, loaning or giving a high-capacity magazine to another.  Large capacity means a detachable ammunition feeding device with the capacity to accept more than 20 rounds.  [Status: In Committee, 3/25/13 Referred to Criminal Justice Committee]
SB 1526 and HB 3772   Mandatory criminal background checks in connection with firearm transfers, creating offenses [Status: In Committee, 03/19/13 and 03/21/13]
HB 3190   Economic development incentives for firearms and ammunition manufacturers.  [Status: In committee, 04/15/13 Public Hearing]
 
HB 383  Would make out of state concealed handgun licenses invalid for residents of Texas.  [Status: Pending In Committee, 03/21/13]
 
SB 481   The bill would amend the Government Code to remove the authority for Texas to recognize concealed handgun permits issued by another state, if the individual holding such a permit is a resident of Texas.  [Status: In Committee, 4/15/13 Placed in intent calendar, Vote 4-2 Favorable]
 
HB 3325   Relating to the regulation or prohibition of certain assault weapons; imposing a tax and a license fee; providing a civil penalty. [Status: In Committee, 03/19/13] 
SB 1677   Relating to the reporting of a lost or stolen firearm; providing criminal penalties. [Status: In Committee, 03/25/13]
HB 3143 and HB 3347 and SB 1527 Requires background checks at gun shows [Status: In committee, 04/11/13, 3/19/13, 3/18/13]
HB 3288   Requires drug testing of a person seeking to obtain or renew a concealed handgun license.  CHL applicants/holders would be required to pay for their own drug test. [Status: In Committee,  03/19/13]
HB 1076  The bill would prohibit any state agency or subdivision from adopting any rule or policy through which that entity enforces any federal regulation on or after January 1, 2013 that purports to regulate firearms and related accessories if that federal regulation imposes a restriction that does not exist under the laws of this state.  If a state or municipal entity is found by way of a final judicial determination to have violated the provisions of this bill, that entity is to be denied state grant funds for the fiscal year that follows. [Status: Sent to to Calendars| 04/11/13, Vote 3-1 Favorable]
 
This is not an exhaustive list but does highlight some of the bills.

FEDERAL FIREARMS LAW

The Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) aka (ATF) enforces federal gun laws. Most states, like Texas, and local jurisdictions have additional firearms restrictions.  Today’s primary statutory construct, the Gun Control Act of 1968 (GCA), includes two titles. Title I is the original “Gun Control Act,” now retitled as “State Firearms Control Assistance.” Title II is the “National Firearms Act of 1934” (NFA).  The GCA, codified as 18 U.S.C. Chapter 44, broadly regulates both the firearms industry and firearms owners. Regulations focus on interstate commerce of firearms and have been extended to intrastate as well. Generally, interstate transfers of firearms are prohibited, except among licensed manufacturers, dealers and importers, with few exceptions.

The NFA, 26 U.S.C. Chapter 53, imposes an excise tax on the manufacture and transfer of six categories of firearms: machine guns, short-barreled rifles, short-barreled shotguns, silencers (suppressors), destructive devices and “any other weapons” (AOWs). NFA firearms must be registered in the federal system with a tax stamp issued by ATF before a purchaser can take possession.
It’s only in the past few years that federal courts have stepped in to provide a clearer definition of the right to bear arms. Two recent cases established that an individual’s right to bear arms for self defense is constitutionally protected.  In 2008, District of Columbia v. Heller overturned a handgun ban in the District of Columbia. Then, in 2010, McDonald v. City of Chicago incorporated the individual right to the states.  
 
Suppressors and Silencers
Suppressors are legal to own in Texas.  In fact, on September 1, 2012, a new regulation allowing hunters in Texas to use suppressors while hunting went into effect.  In order for a civilian to purchase a suppressor in Texas they must submit a Form 4 or Application for Tax Paid Transfer and Registration of Firearm to the NFA Branch of the ATF which will trigger a stringent FBI background check. In addition, applicants must include a $200 payment for the transfer tax, copies of passport photos, fingerprints, and obtain a signoff from a chief law enforcement officer (CLEO) in their jurisdiction or submit the application to ATF through a corporation, LLC, or gun trust.

 

Taking Possession

Taking possession of a NFA firearm can be accomplished as an individual, corporation, LLC or as a trust i.e. a “gun trust” with approved paperwork from the ATF.  While there’s no formal definition, a “gun trust” should be a purpose-built living trust designed for administration of firearms in compliance with local, state and federal firearms law and should be prepared by an attorney licensed in your state.  Moreover, it should set forth possession and transfer guidelines and include trust provisions including trustee duties and powers, should be carefully selected to provide flexibility, while minimizing conflicts with federal and state firearms law.
 
A gun trust should:  (1) Be a valid state law trust. ATF relies on state law to determine the validity of a gun trust. Validity requirements vary a bit from state to state, but usually include: (a) settlor has capacity to create a trust; (b) settlor indicates intent to create a trust; (c) the trust has a definite beneficiary; (d) the trustee has duties to perform; and (e) sole; trustee & sole beneficiary are not the same.  (2) Provide control over this specific kind of personal property; (3) Provide a mechanism for informal or formal “sharing” during life without violating possession or transfer laws;  (4) Simplify and clarify the process of transfer (buy, sell, loan, lease or bequeath) of a firearm, specifically NFA firearms;  (5) Provide meaningful guidance to successor fiduciaries and others who may not be “gun people.”;  (6) Provide administrative direction, administration of benefits and help avoid the possibility of a loved one facing an “accidental felony.” The trust should contain guidance that helps trustees and beneficiaries acquire, possess and transfer firearms, whether conventional or NFA, within the law.
 

ASSAULT WEAPONS

In the United States “assault weapons” are usually defined in legislation as semi-automatic firearms that have certain features generally associated with military firearms (M), including assault rifles (AR). Some definitions in “assault weapon” legislation under consideration (in 2013) are much broader to the point of including the majority of firearms, e.g. all semi-automatic firearms or all firearms with detachable magazines.  
The 1994 Federal Assault Weapons Ban which expired on September 13, 2004, defined an “assault weapon” rifle type as a semiautomatic firearm with the ability to accept a detachable magazine and two or more of the following: (1) a folding or telescoping stock, (2) a pistol grip that protrudes conspicuously beneath the action of the weapon, (3) a bayonet mount, (4) a flash suppressor or threaded barrel designed to accommodate a flash suppressor, or (5) a grenade launcher


The assault weapons ban did not restrict weapons capable of fully automatic fire, such as “assault rifles” and “machine guns”.  Those are regulated by the National Firearms Act of 1934 and subsequent laws such as the Gun Control Act of 1968 and the Firearm Owners Protection Act of 1986.  These laws regulate the importation and civilian ownership of fully automatic firearms and prohibit sales of newly manufactured machine guns to non-law enforcement or SOT (special occupational taxpayer) dealers.
 

This is where you have to get your hands dirty: To determine if a weapon is full automatic or semi-automatic, you need to actually examine it.  Often the media lacks the knowledge or  the opportunity to have a hands on inspection so they muddy the water and interchangeably use the terms “assault weapon” and “assault rifle” because the weapons share some common features and appearance.  This general classification  using a media-coined term has caused much confusion among the public by intentionally misleading the public to believe that assault weapons (as defined in legislation) are fully automatic firearms when they are not. 

 

FINAL WORD

Both sides in the gun debate are selectively using portions out of context from a series of studies, on the impact of the 1994 assault weapons ban.  These studies concluded with a 2004 study led by Christopher S. Koper, “An Updated Assessment of the Federal Assault Weapons Ban: Impacts on Gun Markets and Gun Violence, 1994-2003.”.  The final report concluded that the ban’s success in reducing crimes committed with banned guns was “mixed.” Gun crimes involving assault weapons declined.  However, that decline was offset by steady/rising use of other guns.
This article serves as an overview of some of the laws relating to firearms in Texas and some of the bills pending before the 83rd Session of the Texas Legislature.  
 
Before purchasing or taking possession of any NFA firearm, consult with an attorney experienced with gun trusts and firearms law.  We cannot stress enough if you plan to purchase, possess, or pass on a firearm that you become aware of all Federal as well as your state and local firearms laws that apply to your situation.
Nile Copeland
Cheng Copeland, PLLC
www.americanguntrust.com

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Brandon Jacobson
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Brandon Jacobson

Quick question. Are guards who work for security companies such as Securitas or guard security able to carry firearms while off duty?

Richard
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Richard

For everyone’s guess out there, what would be the percentage rate of HB 195 passing?

Richard
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Richard

If Texas does pass an open carry either licensed or not, will this give me leverage to open carry an antique curio black powder pistol since this is one of my choices?

Nile Copeland
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Nile Copeland

Carl, SB 299 Inadvertent display protects against charges of unlawful carry for the inadvertent or accidental display of a handgun by a Concealed Handgun Licensee (CHL). (Effective 9/1/13) Open carry did not pass. However the legislators are in a special session and SB56 (Open Carry) was refiled for this session. Gramps: HB48 Passed and is effective Sept 1 (see below) HB 48 (CHL No Class Renewals) streamlines the process for renewal of a CHL by eliminating the continuing education requirement and handgun proficiency demonstration.  Applicants would still be required to renew their licenses every five years, but they would be provided with an… Read more »

Carl Thomas
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What is the status on any bill allowing open carry or unintentional display of a handgun

Gramps
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Gramps

What ever happened to the bill to allow present CHL holders to renew via the internet without doing the class and range?

John Poland
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John Poland

How about legislation that Any Federal Agents acting to confiscate guns and killed and or injured while doing so,be consitered to be in the act of Breaking and Entering Illegally ..Making the resident responsible Justified under the law for defending his life and Property, and prohibited from procecution !