Texas Already Has “Extreme Risk Protection Order” Laws

Opinion by Gary B. Wells

Texas Already Has “Extreme Risk Protection Order” Laws
Texas Already Has “Extreme Risk Protection Order” Laws

Texas –  -(AmmoLand.com)- Texas Governor Greg Abbott clearly indicated his lack of support for “Red Flag” or “Extreme Risk Protection Orders” after the Texas Senate Select Committee on Violence in School and School Security hearings last July.

Still, uninformed, anti-gun Texas legislators plan to present bills for such laws this coming year.

These legislators ignore the simple fact that Texas already has procedures to address the risks posed by persons who are a significant danger to themselves or others. These existing laws are significantly more comprehensive than any “Red-Flag” law, better balance due process requirements, and are consistent with the simple fact that the risks lie with the person, not the firearm. The key is recognizing that these laws already exist and understanding how they can be used to safeguard the person from harming themself or others.

Texas provides for the apprehension of a person believed to be dangerous, a timely evaluation of the person, and if necessary, the placement of that person in a mental health facility for treatment. The most relevant statutes provide for a non-warrant detention, a warrant detention, a protective custody order, and court-ordered mental health services. As John Lott pointed out, “If someone’s mental illness really does pose a danger to others, why only stop them from legally purchasing a gun? They’ll have plenty of time to obtain a weapon illegally. Our best bet is to confine them to a mental health facility.” (John Lott, “CPRC in Investor’s Business Daily: Some gun laws dealing with mental illness do more harm than good” Investor’s Business Daily, 9/26/15.)

If, because the person has been ultimately adjudicated as a mental defective or involuntarily committed to any mental institution (18 U.S.C. § 922(d)(4)), that person’s firearms are subject to seizure and forfeiture under federal law. The following is a brief outline of the Texas procedures currently available to prevent the harms posed by a person determined to be a risk to themselves or others.

Non Warrant Emergency Mental Health Detention: Texas Health & Safety Code § 573.001

Police Officer

A Non Warrant Emergency Mental Health Detention may be initiated by a police officer or a person’s guardian. The law provides that peace offices are authorized to apprehend or take a person into custody without a warrant if three conditions are met:

  • (1) The police officer has reason to believe and does believe that the person being detained has a mental illness; (i.e., psychosis, depression, etc.)
  • (2) The police officer has reason to believe and does believe that because of that mental illness there is a substantial risk of serious harm to the person or to others unless the person is immediately restrained; and
  • (3) The police officer believes that there is insufficient time to obtain a warrant before taking the person into custody.

While a police officer is responsible for detaining the person, the officer’s decision on whether the person is a substantial risk of harming themself or others may be based both on 1) the police officer’s observations of the person’s behavior or other evidence of severe emotional distress and deterioration in the person’s mental condition; and 2) information provided to the officer by the representation of a credible person on the basis of the conduct of the apprehended person or the circumstances under which the apprehended person is found. Clearly, credible persons may include family members, school employees, and employers.

A peace officer who takes a person into custody under these conditions may immediately seize any firearm found in possession of the person. The officer is then required to immediately transport the apprehended person to an inpatient mental health facility. A preliminary examination is required within twelve hours and the person may be admitted to the facility only if 1) the person is a person with mental illness; 2) the person evidences a substantial risk of serious harm to themself or others; 3) the described risk of harm is imminent unless the person is immediately restrained; and 4) emergency detention is the least restrictive means by which the necessary restraint may be accomplished.

If the law enforcement agency possessing the person’s firearm receives notice that the person taken into custody was ordered to receive inpatient mental health services, the agency has thirty days to provide written notice to the person by certified mail that, among other things, the person is prohibited from owning, possessing, or purchasing a firearm under federal law. The firearm will not be returned to the person. If the person wishes their firearm to be released to someone else, the person receiving the firearm must provide an affidavit that they will not allow the committed person to have access to the firearm.

Guardian

A guardian of a person who is 18 years of age or older may transport the ward to an inpatient health facility for a preliminary examination if the guardian has reason to believe and does believe that 1) the ward is a person with mental illness, and 2) because of that mental illness there is a substantial risk of serious harm to the ward or to others unless the ward is immediately restrained. Immediately after transporting the ward to a mental health facility, the guardian is required to file an application for detention (a protective order) with the facility.

Warrant Mental Health Emergency Detention: Texas Heath & Safety Code § 573.011

Any adult may file a written application for an emergency detention of another person. These applications may be made after an officer has already apprehended the person under a warrantless detention, but may also be pursued by others without such detention.

The application must state: 1) a belief that the person evidences mental illness; 2) a belief that the person evidences a substantial risk of serious harm to themself or others; 3) a specific description of the risk of harm; 4) a belief that the risk of harm is imminent unless the person is immediately restrained; 5) that the applicant’s beliefs are derived from specific recent behavior, overt acts, attempts, or threats; 6) a detailed description of the specific behavior, acts, attempts, or threats; and 7) a detailed description of the applicant’s relationship to the person whose detention is sought. The application may be accompanied by any relevant information.

The judge or magistrate is required to examine the application and may interview the applicant. The court is required to issue to an on-duty peace officer a warrant for the person’s immediate apprehension if it reasonable cause to believe that 1) the person evidences mental illness; 2) the person evidences a substantial risk of serious harm to themself or others; 3) the risk of harm is imminent unless the person is immediately restrained; and 4) the necessary restraint cannot be accomplished without emergency detention. The officer is required to transport the person for a preliminary mental health examination at an inpatient mental health facility. The warrant serves as an application for detention in the facility.

Protective Custody Orders: Texas Health & Safety Code § 574.021

Under both a Non-Warrant and a Warrant Emergency Detention, a physician is required to perform a preliminary examination within 12 hours. The person may not be detained in custody for longer than 48 hours unless a written order for protective custody is obtained. The motion for a Protective Custody Order may be filed by the county or district attorney or on the court’s own motion.

A judge or designated magistrate may issue a protective custody order only if the judge or magistrate determines 1) that a physician has stated the opinion and the detailed reasons for the opinion that the proposed patient is a person with mental illness; and 2) the proposed patient presents a substantial risk of serious harm to themself or others if not immediately restrained pending the hearing.
The protective custody order authorizes the patient to be immediately transported to a mental health facility and the person shall be detained in the facility until a probable cause hearing is held, which must be done within 72 hours after being detained. The hearing must be held to determine if 1) a physician has stated the opinion and the detailed reasons for the opinion that the proposed patient is a person with mental illness; and 2) there is probable cause to believe that the proposed patient under a protective custody order presents a substantial risk of serious harm to themself or others to the extent that the proposed patient cannot be at liberty pending the hearing on court-ordered mental health services. If the conditions are met, the patient must remain in protective custody until a final order for court-ordered mental health services is entered or the person is released or discharged. The person may be released by the court if the court determines that no probable cause exists to believe that the patient presents a substantial risk of serious harm to themself or others.

Court-Ordered Mental Health Services: Texas Health & Safety Code § 574.001

A county or district attorney or other adult may file a sworn written application for court-ordered mental health services. However, if a “certificate of medical examination” is not included, the application must be filed by a county or district attorney. A “certificate of medical examination for mental health” is a sworn statement by an examining physician that states, among other things: 1) a brief diagnosis of the examined person’s physical and mental condition; 2) an accurate description of the mental health treatment, if any, given by or administered under the direction of the examining physician; and 3) the examining physician’s opinion that the examined person is a person with mental illness and, as a result of that illness, the examined person is likely to cause serious harm to themself or others or is suffering from mental or physical deterioration that prevents them from caring for themself and make rational and informed decisions.

These are non-emergency orders for mental health services. Unless the person is detained under one of the emergency provisions, the proposed patient “is entitled to remain at liberty pending the hearing on the application.”

The application may request temporary mental health services or, if the person has already received court-ordered inpatient mental health services for at least 60 days, extended inpatient mental health services. The application must include a statement that the proposed patient is a person with mental illness and meets the criteria in Section 574.034 (temporary services for up to 90 days) or Section 574.035 (extended services for up to twelve months) for court-ordered mental health services.

A hearing must be set within 14 days of the application being filed, generally before the judge if for temporary mental health services or a jury for extended mental health services. A hearing on an application for court-ordered mental health services may not be held unless there are on file with the court at least two certificates of medical examination for mental illness completed by different physicians each of whom has examined the proposed patient during the preceding 30 days. At least one of the physicians must be a psychiatrist if a psychiatrist is available in the county. The certificate of medical examination for mental illness must, among other things, provide the examining physician’s opinion that the person is one with mental illness and, as a result of that illness, is likely to cause serious harm to themself or others or suffers from other disabling mental limitations.

The court is required to deny the application for court-ordered temporary or extended mental health services if, after a hearing, the court or jury fails to find, from clear and convincing evidence, that the proposed patient is a person with mental illness and meets the applicable criteria for court-ordered mental health services.

Substance Abuse Detentions

The above four procedures are designed for those suffering from a mental illness. It would seem a stretch to argue that someone wishing to harm themself or others is not suffering from a mental illness, whether it be depression or a psychotic breakdown. Almost identical provisions are available, however, for those suffering from substance abuse rather than an mental illness:

  • Emergency Apprehension and Detention Where Insufficient Time for a Warrant: Texas Health & Safety Code § 462.041
  • Emergency Apprehension and Detention Pursuant to Court-Ordered Warrant: Texas Health & Safety Code § 462.042
  • Protective Custody Orders: Texas Health & Safety Code § 462.065
  • Court-ordered Treatment: Texas Health & Safety Code § 462.061

Marital Dissolution Protective Orders

An application for a protective order may be filed by any adult member (or former member) of a family or household to protect themselves or any other member, or by an adult member of a dating relationship, or by a prosecuting attorney, or by the Dept. of Family Services. The court is required to issue a protective order if it finds that family violence has occurred and is likely to occur in the future. If the court makes such a finding, it is required to issue a protective order applying only to a person found to have committed family violence. In addition to the statutory prohibition, the court must include as part of the protective order a provision prohibiting the person found to have committed family violence from possessing a firearm (unless the person is a peace officer). Under certain circumstances, the court may issue a temporary ex parte order.

Conclusions

Handcuffs Arrest Resistance
The new wave of red flag laws are designed for one purpose: to take away firearms.

Under current Texas law, a person who is determined to be a risk to themself or others is not only removed from where they may access their firearms, but placed into a facility where they will not have access to other dangerous instrumentalities and will receive treatment. The new wave of red flag laws are designed for one purpose: to take away firearms. This objective was clearly reflected by a question posed by a Senator during my testimony before the Texas Senate Select Committee on Violence in School and School Security. After I posed the question as to why a person’s firearms would need to be confiscated while that person was being detained, evaluated, and treated because the person will have been removed from where they could use their firearms, one Senator responded, “Why not?”

Obviously, for like-minded legislators, the issue is not about protecting against the risks of those who are a potential risk to themselves or others, but about gun confiscation. What these legislators want is a procedure where, even though the person isn’t really a sufficient risk of harm to themself or others, a procedure with a significantly lower threshold is available to take away their firearms.

If a person truly posses a serious risk of harm to themselves or others, the focus must be on the person, not their firearms. Simply removing the firearms ignores the real problem. Also, any lower due process threshold making it easier to take a person’s firearms as opposed to detaining the person is legally dubious and factually unsupportable. This is particularly true where, if the person is truly a danger to themselves or others, existing Texas law allows for the detention and treatment of the person in a mental health facility where they are removed from not only their firearms, but other potential instruments by which they could cause harm. They are also prevented from obtaining other firearms illegally.

As has been the problem throughout history, lawmakers seem to believe that every tragedy requires new legislation, most times for no other purpose than promoting their own political careers. Rarely would these new laws have prevented the tragedy the legislators are reacting to, and are often nothing more than poorly-designed additions to already-existing laws. This is clearly the situation in Texas and the proposal for “Red Flag” laws.


Gary B. Wells, Firearms AttorneyGary B. Wells is the author of the two volumes on Firearm Laws. Volume 1 explains federal firearm laws and Volume 2 explains Texas firearm laws.

Gary provides a wide range of legal services for businesses and individuals, with a focus on firearms laws. He works with businesses to get them started and to help them with ongoing legal concerns, including regulatory compliance, reporting, and liability concerns.

He also works with individuals regarding their estate planning (particularly those having particular needs because they own firearms ) and directly-related firearm issues (including transfers, rights and possession problems, appeals). He works with his clients to take a proactive approach to ensure they are compliance with federal and state laws.

More information about Gary's books and services can be found at his website: www.firearmslaw.attorney.

Contact Info:

Gary B. Wells, Attorney at Law
9350 Hilltop Rd. (by appt. only)
Argyle, TX 76226
(559)517-7446
[email protected]
www.firearmslaw.attorney

  • 14 thoughts on “Texas Already Has “Extreme Risk Protection Order” Laws

    1. It’s been said before, you’ve heard it, likely hundreds of times. But i’m going to say it again. “Guns don’t kill people, people kill people!”. So what does that mean? Guns: inanimate objects incapable of operation without human interaction. Guns can neither do good or cause harm on their own. Exactly how the gun functions is 100% predicated by the person putting it into use. Therefore, if an innocent homeowner whom is a legal owner of a legal firearm uses that firearm in the protection of life and property, he/she is protected under at least, Constitutional Law, more precisely the 2nd Amendment. In order to change the 2nd Amendment, many things must happen by many people in a timely and consecutive order. Thus far, attempts at ratifying the 2A have been unsuccessful. Historically, those opposing the 2A have been Democrats. Democrats have historically been anti-2A. And the cycle remains unbroken. Red flag laws are simply yet another futile and desperate attempt by Democrats to criminalize the rights to keep and bear arms. Which in effect, criminalizes an inanimate object!

      The Democrat’s true agenda is to confiscate and destroy the one thing, the one provision, that a common citizen may legally utilize to protect himself and his country from a purely tyrannical government. A gun. I’d like to know in what world does that make any rational sense? Men killed other men by various means, a very, very long time before the Chinese invented gun powder. So if we outlaw guns, should we not then outlaw knives, cars, letter openers, hammers, ice picks, baseball bats, screwdrivers, electricity, rope, rat poison and hundreds of thousands of other things that could render a person deceased? Certainly, when one employs Democratic logic. Is that therefore, the logical or correct thing to do? Of course not! So stop the ridiculous assault upon the 2A. Move on. Find some other cause that is worthy of your attention that actually makes sense.

    2. Much like the proposed “red flag” laws, Texas’s warrantless detention laws allow a peace officer to rely on a statement from any clearly “credible” person. So an interfering neighbor, an abusive spouse, and many others, could have you locked up.

      Of course dangerous people shouldn’t get access to firearms. But the argument against the so called red flag laws is the argument against what’s happening daily in warrantless mental health detentions. And unfortunately Texas doesn’t even bother to track and report on how many of these detentions are happening in our state every year.
      Florida, which does report, had a staggering 199,000 of these detentions in its most recent reporting year.

      The problem with framing this in terms of gun control is that so many liberties are on the table and so many are so easily lost.

    3. The Texas law sounds so much more effective and realistic that most of them that are being floated through many states.The one in Maryland that got the homeowner killed is nothing but a confiscation law. Guns should not zeroed in on for people that have mental problems. There are so many other ways they can cause damage and death without a gun. Politics and the elites are the only reason for focusing on guns.

    4. David Codrea has held for years now that if an individual is not to be trusted in public with a firearm, he is also not to be trusted in public without a custodian.
      I’ve figured for not quite as long that if I cannot trust a man to carry his own gun inside my house, WHY would I trust him to be inside my house unarmed?

      As always, the issue is the indian, not the arroiw. It is the software, not the hardware. It is the operator, not the machine. It is the crafstman not the tool.

      Everywhere we see eedjit polilticians focussing on the tool, hardware, machine, arrow and never the hand/mind that controls it. Thisis irrefutable proof that thepoliticans are after control of PEOPLE and not “stuff”. And THAT is precisely the reason our forebearers took up arms against their would’be overlords and drove them from our shores.

      Time to begin using the laws already in place to hold these eedjit politician robbers to account for the oath they swore to uphold and defend the Constitution. EVERY STATE that is now part of the Union had opportunity to read the US Constitution and comprehend it. And they ALL voted to accept and adopt it as part of the bargain for that state to become a member of the Union. Thus California, Maryland, Massachussetts, New York, COnnecticut, New Jersey, ALL agreed to that pesky but of stuff we refer to as the Second Article of Ammendment. And NONE of them uphold it.

    5. Any adult person can file a written application for emergency detention of another person. May the citizens of Texas should fill one out on these legislators.

    6. Quote: “In addition to the statutory prohibition, the court must include as part of the protective order a provision prohibiting the person found to have committed family violence from possessing a firearm (unless the person is a peace officer).” So as long as the person is a cop they can commit all the family violence they wish and still keep their guns. Why? Since all citizens have the right to make a “citizen’s arrest” it could be argued that we are all cops and therefore should be allowed to keeps our guns just like those few who wear blue (or whatever the local/state color is).

    7. I have said this all along that these Red Flag Laws are only there to Back Door disassemble the Second Amendment without doing away with it!!!! When they take the guns away what is the time limit and cost to the person who they were taken from, this is all done by hearsay remarks, with no proof required upon the confiscation!!!!!! Where is proof and this is carried out without any warrants! This is only a quick way to disarm a person and to take some ones guns, it will eventually will cause more deaths by law enforcement than people doing harm to themselves, but the politicians could care less as it takes out another person that owns a gun!!!!!!!

    8. anti-gun Texas legislators! IN TEXAS? THESE ARE WORDS I WOULD NEVER HAVE GUESSED TO SEE FROM TEXAS!
      I guess they slither out in every state.

    9. There are already reasonable laws on the book to deal with threats, if law enforcement will enact them. The FBI specifically has dropped the ball many, many times when they have been made aware of individuals who were a threat and did NOTHING or simply “screwed the pooch”. Best examples are the Florida school shootings and 9/11. These Red Flag laws are nothing more than back door gun control.

    10. I have read that all states have some method of removing weapons from mentally unstable owners. Fellow commenters correct if I’m wrong. The last piece I saw was on 3 F words, hosted by Alex Kincaid. They are serious laws with serious impacts, but require a high threshhold of evidence to get them ordered, unlike the latest spate of laws which require very little proof.

    11. I wrote basically this, in much much shorter form, just a couple of days ago on this site. I am glad someone fleshed it out for the public’s consumption.

      1. @Roy D

        Many of us have over the years Roy. It just falls on deaf ears because there are people who want “More Laws”, “Just Do Something!”, “Those Don’t Work fast enough!”

        It’s not about reality, it is about Control. It’s a cover up to bluff the hand they are holding and fake 2nd Amendment supporters into folding.

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