March 28, 2013

THE PLAYERS Committees Representatives & Senators Page 1 THE BILLS Current Gun Legislation before the 2013 Texas Legislature Page 2 FIREARMS LAW 101 Background Primer on Federal Firearm Laws Page 3-4

CONTACT: Nile Copeland Cheng Copeland, PLLC 713-382-7980

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. THE PLAYERS
HOUSE Most gun bills filed in the Texas House are directed to the House Committee on Homeland Security 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-related legislation is most often directed to the Senate Committee on Criminal 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)

Firearms Tax Stamp: The Bureau of Alcohol, Tobacco, Firear ms and Explosives (BATFE) issues an individual, corporation, trust, etc. a special tax stamp as a receipt/evidence of payment of the special tax. The stamp indicates the Tax Year it was paid, the class of tax, and identifies the taxpayer.

Cheng Copeland, pLLC • 5100 Westheimer, Ste 200 • Houston, tx 77056 • 713-382-7980

March 28, 2013

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: 3/21/13 Left Pending in Committee] 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: 3/19/13 Left Pending in Committee] 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: 3/28/13 In Committee, Vote 8-0 Favorable] 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 their measure. Texas is following Oklahoma’s passage of licensed open carry. The Mississippi Legislature is in the final stages toward passing “unlicensed open carry”. [Status: 3/14/13 Left Pending in Committee] 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: Out of Committee, Vote 5 to 1 in favor] A controversial subject, guns in colleges/schools: HB 182, HB 1313 [Status: Both In Committee, 2/6/13, 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: 3/14/13 Pending in Committee] would allow adult students, faculty and staff with a concealed handgun license the option of carrying during their day to day activities including 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. H B 1 4 2 1 Re g a rd i n g t h e s a l e o f 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: 3/25/13 In Committee, Vote 7-0 in favor] HB 1304 To provide a more clear definition in statute for the unintentional display 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 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 Hearings scheduled on 4/2/13] HB 333 Hotels would be required to post their policy regarding firearms on their reservation section of their website and require customers to acknowledge that they have read the policy. [Status: Out of Committee, 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

Cheng Copeland, pLLC • 5100 Westheimer, Ste 200 • Houston, tx 77056 • 713-382-7980

March 28, 2013

THE BILLS (cont.)
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] 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. 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 p e r s o n a l p ro p e r t y ; ( 3 ) P rov i d e a mechanism for infor mal or for mal “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.

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. Contrary to popular belief, suppressors/ s i l e n c e r s d o n o t re n d e r g u n s h o t s completely silent but rather they reduce the report of a firearm to hearing-safe levels, helping to protect the shooter and those nearby from permanent hearing damage. 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.


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 Firear ms 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 Taking Possession and transfer of six categories of firearms: Taking possession of a NFA firearm can machine guns, short-barreled rifles, short- be accomplished as an individual, barreled shotguns, silencers (suppressors), corporation, LLC or as a trust i.e. a “gun destructive devices and “any other trust” with approved paperwork from the weapons” (AOWs). NFA firearms must be

Cheng Copeland, pLLC • 5100 Westheimer, Ste 200 • Houston, tx 77056 •

March 28, 2013


In the United States “assault weapons” are usually defined in legislation as semiautomatic 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 semiautomatic firearms or all firearms with detachable magazines. The 1994 Federal Assault Weapons Ban which expired on September 13, 2004, defined an assault weapon based on various aesthetic characteristics. 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 it gets messy. To determine if a weapon is full automatic or semiautomatic, 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.

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 newsletter 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 own a firearm that you become aware of all Federal as well as your state and local firearms laws that apply to your situation.

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
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

The 1994 Federal Assault Ban defined “assault weapon”...
The 1994 Federal Assault Weapons Ban which expired on September 13, 2004, codified the definition of an “assault

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

Cheng Copeland, pLLC • 5100 Westheimer, Ste 200 • Houston, tx 77056 • 713-382-7980

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