85R4839 MAW-F
	By: Moody	H.B. No. 866

	A BILL TO BE ENTITLED
	AN ACT
	relating to lethal violence protective orders; creating a criminal
	offense.
	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
	SECTION 1.  Title 1, Code of Criminal Procedure, is amended
	by adding Chapter 7B to read as follows:
	CHAPTER 7B. LETHAL VIOLENCE PROTECTIVE ORDER
	Art. 7B.01.  DEFINITIONS. In this chapter:
	(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.02.  APPLICATION FOR LETHAL VIOLENCE PROTECTIVE
	ORDER. (a) An application for a protective order under this
	chapter 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 under 18 years of age and a member of the respondent's family or
	household; or
	(3)  a prosecuting attorney acting:
	(A)  on behalf of a person described by
	Subdivision (1) or (2); or
	(B)  at the request of a peace officer.
	(b)  An application must:
	(1)  include:
	(A)  detailed allegations, based on personal
	knowledge of a person described by Subsection (a)(1) or (2) or of a
	peace officer, 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; 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 chapter
	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.03.  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.04.  TEMPORARY EX PARTE ORDER. (a)  If the court
	finds from the information contained in an application for a
	protective order under this chapter 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)  relinquish, without delay, 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.05.  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 Chapter 7A or 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 abuse of
	a controlled substance or alcohol, including evidence of any
	treatment for and 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.04 and return the
	respondent's license to carry a handgun.
	Art. 7B.06.  CONTENTS OF PROTECTIVE ORDER. In a protective
	order issued under Article 7B.05, the court shall:
	(1)  prohibit the person who is subject to the order
	from purchasing, owning, possessing, or controlling a firearm
	during the duration of the order; and
	(2)  order the person to:
	(A)  relinquish, without delay, 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.
	Art. 7B.07.  DURATION OF PROTECTIVE ORDER. (a)  A protective
	order issued under Article 7B.05 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.05 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 does not make a 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.05(c).
	Art. 7B.08.  NOTICE TO DEPARTMENT OF PUBLIC SAFETY REGARDING
	ISSUANCE OR EXPIRATION OF ORDER. (a) Not later than the 30th day
	after the date a protective order is issued under Article 7B.05, 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; and
	(4)  if applicable, the person's license to carry a
	handgun issued under Subchapter H, Chapter 411, Government Code.
	(b)  Not later than the 30th day after the date the
	protective order expires under Article 7B.07, the clerk of the
	issuing court shall notify the Department of Public Safety of the
	expiration.
	Art. 7B.09.  APPLICATION OF OTHER LAW. To the extent
	applicable, except as otherwise provided by this chapter, Title 4,
	Family Code, applies to a protective order issued under this
	chapter.
	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 LETHAL VIOLENCE PROTECTIVE ORDER. (a) A law
	enforcement officer who takes possession of a firearm from a person
	who is the subject of a lethal violence protective order issued
	under 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 lethal violence 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 lethal
	violence 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 written notice to the person by certified mail
	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 a lethal
	violence protective order issued under 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 LETHAL VIOLENCE
	PROTECTIVE ORDER. (a) The department by rule shall establish a
	procedure to provide information concerning a person who is the
	subject of a lethal violence 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.08, Code of Criminal
	Procedure, to the Federal Bureau of Investigation not later than
	the 30th day after the date 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 a lethal violence protective order issued under 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.  Chapter 37, Penal Code, is amended by adding
	Section 37.082 to read as follows:
	Sec. 37.082.  FALSE REPORT REGARDING REQUEST FOR LETHAL
	VIOLENCE PROTECTIVE ORDER. (a) In this section, "prosecuting
	attorney" means a district attorney, criminal district attorney, or
	county attorney.
	(b)  A person commits an offense if, with intent to deceive,
	the person knowingly makes to a prosecuting attorney or peace
	officer a false statement relating to a request that a prosecuting
	attorney file an application for a lethal violence protective order
	under Chapter 7B, Code of Criminal Procedure.
	(c)  An offense under this section is a Class B misdemeanor.
	SECTION 6.  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 a lethal violence protective order
	issued under 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 7.  Not later than October 1, 2017, the Department of
	Public Safety shall adopt rules as required by Section 411.0522,
	Government Code, as added by this Act.
	SECTION 8.  This Act takes effect September 1, 2017.