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2013 TX LEGISLATURE - Gun Bills Review

2013 TX LEGISLATURE - Gun Bills Review

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Published by 2centavos
Review of Gun Bills in the Texas Lege
Review of Gun Bills in the Texas Lege

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Published by: 2centavos on Apr 02, 2013
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March 28, 2013www.americanguntrust.comCheng Copeland, pLLC • 5100 Westheimer, Ste 200 • Houston, tx 77056 •713-382-7980
Firearms Tax Stamp:
 The Bureau of Alcohol,Tobacco, Firearms andExplosives (BATFE) issues anindividual, corporation, trust,etc. a special tax stamp as areceipt/evidence of paymentof the special tax. Thestamp indicates the Tax Yearit was paid, the class of tax,and identifies the taxpayer.
TEXAS
GUN LEGISLATION
 
REVIEW
THE PLAYERS
Committees Representatives & Senators
Page 1THE BILLS
Current Gun Legislation beforethe 2013 Texas Legislature
Page 2FIREARMS LAW 101
 Background Primer on Federal  Firearm Laws
Page 3-4CONTACT:
 Nile Copeland Cheng Copeland, PLLC 713-382-7980
nile@e-justice.comwww.americanguntrust.com
2013 TEXAS LEGISLATIVE SESSION
The 83rd Legislature Regular Session is underway and will beaddressing one of the hot topics of the day, gun legislation. Whatfollows is some background information and discussion of the bills.
THE PLAYERS
HOUSE
Most gun bills filed in the TexasHouse are directed to the
HouseCommittee on HomelandSecurity and Public Safety.
Chmn: Rep. Joe Pickett (D)VChmn: Rep. Allen Fletcher (R)Committee members include:Rep. Tony Dale (R)Rep. George Lavender (R)Rep. Dan Flynn (R)Rep. Tim Kleinschmidt (R)Rep. Kenneth Sheets (R)Rep. Phillip Cortez (D)
SENATE
In the Texas Senate, gun-relatedlegislation is most often directed tothe
Senate Committee onCriminal Justice
.Chmn: Sen. John Whitmire(D)VChmn: Sen. Joan Huffman (R)Committee members include:Sen. John Carona (R)Sen. Juan Hinojosa (D)Sen. Dan Patrick (R)Sen. Jose Rodriguez (D)Sen. Charles Schwertner (R)
 
March 28, 2013www.americanguntrust.comCheng Copeland, pLLC • 5100 Westheimer, Ste 200 • Houston, tx 77056 •713-382-7980
TEXAS GUN LEGISLATION REVIEW
THE BILLS
HB 47
Would lower the hours for theinitial Concealed Handgun License (CHL)course from 10 hours to “not less than 4 ormore than 6, not to include time on theshooting range.”
 
This bill does not changethe written materials or the exam but onlyimpacts the number of classroom hours.The hours were put into statute before thecoursework was written and has not beenrevisited by the Legislature. If HB47passes, only 6 states out of 39 wouldrequire more instruction time than Texasto obtain a state-issued CHL.
[Status:3/21/13 Left Pending in Committee]
HB 508
Provides a fine for the improperposting of the PC 30.06 sign at locationssuch as the entrance to the Fort WorthZoo, on the parking lot of a school, thedoor to a city library, or other locations notlisted as “off-limits” in statute and notprivate property.
[Status: 3/19/13 Left  Pending in Committee]
HB 698
Would require that digitalfingerprinting services be within 25 milesof the applicant.
 
We have CHLs driving hundreds of miles to the closest L-1printing franchise. Rep. Springer’s housedistrict includes 22 rural counties andreasonable access to digital fingerprinting service is not available.
[Status: 3/28/13 InCommittee, Vote 8-0 Favorable]
HB 700
A bill allowing a person with aTexas concealed handgun license to havethe option of carrying concealed or openlyholstered.
 
A major concern has been for aresurgence of PC 30.06 signs/postings onprivate property targeting those who carryopenly but impacting all with a license.This is being addressed by a committeesubstitute which would create a PC 30.07sign restricting only licensed open carry.Law Enforcement did not testify againsttheir measure. Texas is following Oklahoma’s passage of licensed opencarry. The Mississippi Legislature is in thefinal stages toward passing “unlicensedopen carry”.
[Status: 3/14/13 Left Pending in Committee]
SB 299
Would amend current law relating to the intentional display of a handgun bya person licensed to carry a concealedhandgun. Current law prohibits theintentional failure to conceal a handgun bya person licensed to carry a concealedhandgun. Many feel this language is toobroad, and it could lead to prosecutions insituations where the display of the weaponis inadvertent or where the display takesplace in an unthreatening manner like thehome of a friend. This bill proposes toclarify the law stating the failure to conceala handgun is only illegal when thedisplayed gun is in plain view of anotherperson in a public place and clarifying thatis an affirmative defense to the offense thatthe weapon was displayed pursuant to justified use of force, as well as deadlyforce, under Chapter 9 of the Texas PenalCode.
[Status: Out of Committee, Vote 5 to 1 in favor]
A controversial subject, guns incolleges/schools:
HB 182,
 
HB 1313
[Status: Both In Committee, 2/6/13, 3/14/13]
Both allow for adult students, faculty, andstaff with a concealed handgun license tocarry into the buildings of colleges anduniversities.
 
HB 972
[Status: 3/14/13 Pending in Committee]
would allow adultstudents, faculty and staff with a concealedhandgun license the option of carrying during their day to day activities including while on campus. Two other bills,
HB1077 and HB 1078
 
[Status: 3/14/13 Both Pending in Committee]
work towards this endas well. This topic has brought out over100 witnesses, presenting over 5 hours of live testimony - for and against.
HB 1421
Regarding the sale of confiscated firearms. Current Texas lawrequires that firearms confiscated by lawenforcement agencies be destroyed orassigned for law enforcement use. Theseare firearms which cannot be returned toowners and/or are no longer required tobe held as evidence. This measure wouldallow a law enforcement agency to sell suchfirearms at public sale to a federal firearmslicensee (FFL). After sale and court costs,funds would return to the law enforcementagency previously holding the firearms.
[Status: 3/25/13 In Committee, Vote 7-0 in favor]
 
HB 1304
To provide a more cleardefinition in statute for the unintentionaldisplay of a handgun by a licensee.
[Status:3/21/13 Left Pending in Committee]
SB 1348
Relates to straw purchases of guns that occur when a legally eligiblebuyer purchases firearms for traffickers orpersons who are prohibited from buying guns. SB 1348 creates an offense andprescribes a penalty for persons whoknowingly purchase guns to deliver topersons who cannot legally purchase.Current Texas law does not address strawpurchases, this law will mirror federal law.
[Status: In Committee, Public Hearings scheduled on 4/2/13]
 
HB 333
Hotels would be required to posttheir policy regarding firearms on theirreservation section of their website andrequire customers to acknowledge that theyhave read the policy.
[Status: Out of Committee, Vote: 5-0 in favor]
HB 553
The bill would make it anoffense for a peace officer, state officer, orstate employee to enforce, while acting under color of the person’s office oremployment, any federal regulationsrelating to confiscation of any firearms,banning any firearm, limiting the size of a
 
March 28, 2013www.americanguntrust.comCheng Copeland, pLLC • 5100 Westheimer, Ste 200 • Houston, tx 77056 •713-382-7980
TEXAS GUN LEGISLATION REVIEW
THE BILLS (cont.)
magazine for any firearm, imposing anylimit on the ammunition that may bepurchased for any firearm, taxing anyfirearm or ammunition, or requiring registration of any firearm or ammunition.The bill would create an offense, a Class A misdemeanor, for a public servant whoengages in similar enforcement. The billwould also require the Texas Departmentof Public Safety to immediately report tothe governor, attorney general, and thelegislature any attempt by the federalgovernment to implement or enforce anygun control law as described above.[Status: In Committee]
FEDERAL FIREARMS LAW  
The Bureau of Alcohol, Tobacco,Firearms and Explosives (BATFE) aka(ATF) enforces federal gun laws. Moststates, like Texas, and local jurisdictionshave 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 “StateFirearms Control Assistance.” Title II isthe “National Firearms Act of 1934” (NFA). The GCA, codified as 18U.S.C. Chapter 44, broadly regulates boththe firearms industry and firearms owners.Regulations focus on interstate commerceof firearms and have been extended tointrastate as well. Generally, interstatetransfers of firearms are prohibited, exceptamong licensed manufacturers, dealers andimporters, with few exceptions.The NFA, 26 U.S.C. Chapter 53,imposes an excise tax on the manufactureand transfer of six categories of firearms:machine guns, short-barreled rifles, short-barreled shotguns, silencers (suppressors),destructive devices and “any otherweapons” (AOWs). NFA firearms must beregistered in the federal system with a taxstamp issued by ATF before a purchasercan take possession.It’s only in the past few years thatfederal courts have stepped in to provide aclearer definition of the right to bear arms.Two recent cases established that anindividual’s right to bear arms for self defense is constitutionally protected. In2008,
 District of Columbia v. Helle
overturned a handgun ban in the Districtof Columbia. Then, in 2010,
 McDonald v.City of Chicago
incorporated the individualright to the states.
Suppressors and Silencers
 Suppressors are legal to own in Texas.In fact, on September 1, 2012, a newregulation allowing hunters in Texas to usesuppressors while hunting went into effect.Contrary to popular belief, suppressors/silencers do not render gunshotscompletely silent but rather they reduce thereport of a firearm to hearing-safe levels,helping to protect the shooter and thosenearby from permanent hearing damage.In order for a civilian to purchase asuppressor in Texas they must submit aForm 4 or Application for Tax PaidTransfer and Registration of Firearm tothe NFA Branch of the ATF which willtrigger a stringent FBI background check.In addition, applicants must include a $200payment for the transfer tax, copies of passport photos, fingerprints, and obtain asignoff from a chief law enforcementofficer (CLEO) in their jurisdiction orsubmit the application to ATF through acorporation, LLC, or gun trust.
Taking Possession
 Taking possession of a NFA firearm canbe accomplished as an individual,corporation, LLC or as a trust i.e. a “guntrust” with approved paperwork from theATF.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, stateand federal firearms law and should beprepared by an attorney licensed in yourstate. Moreover, it should set forthpossession and transfer guidelines andinclude trust provisions including trusteeduties and powers, should be carefullyselected to provide flexibility, whileminimizing conflicts with federal and statefirearms law.
A gun trust should: (1) Be a valid statelaw trust. ATF relies on state law todetermine the validity of a gun trust.Validity requirements vary a bit from stateto state, but usually include: (a) settlor hascapacity to create a trust; (b) settlorindicates intent to create a trust; (c) thetrust has a definite beneficiary; (d) thetrustee 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 amechanism for informal or formal“sharing” during life without violating possession or transfer laws; (4) Simplifyand clarify the process of transfer (buy, sell,loan, lease or bequeath) of a firearm,specifically NFA firearms; (5) Providemeaningful guidance to successorfiduciaries and others who may not be“gun people.”; (6) Provide administrativedirection, administration of benefits andhelp avoid the possibility of a loved onefacing an “accidental felony.” The trustshould contain guidance that helps trusteesand beneficiaries acquire, possess andtransfer firearms, whether conventional orNFA, within the law.

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