TEXAS DEPARTMENT OF PUBLIC SAFETY
CONCEALED HANDGUN LICENSING BUREAU
ANALYSIS OF AMENDMENTS TO
Gov’t Code Chapter 411, Subchapter H
“The Concealed Handgun Licensing Act”
81st Legislative Session
BACKGROUND
The following is an analysis of the 81st Legislature’s amendments to the Concealed Handgun Licensing Act, as affected by House Bill 2730, the DPS Sunset Bill. This bill incorporates the proposed ―clean-up‖ language requested by the Concealed Handgun Licensing Bureau through HB 3987, as well as the language originally filed as SB 1424, HB 410, HB 1498, HB 3875, and HB 4037.
ANALYSIS
SB 1424 Definitions of „Conviction‟ and „Felony‟
Amends the definitions section of the statute, section 411.171, to exclude convictions that have been "vacated, set-aside, annulled, invalidated, voided, or sealed." It also amends the provisions of the statute that construe an offense as a felony if it is so classified "at the time of application," to instead require that the classification be determined by the law "at the time it is committed, unless, at the time of application, the classification has been reduced from a felony to a misdemeanor. Finally, it amends the Penal Code section governing "felons in possession" of prohibited weapons, by requiring that the classification of the offense be based on the law at the time of the possession. HB 2730 §6.06; §11.02; §11.03; §11.24.
HB 410 Failure to Display
Repeals (in part) the provisions relating to the requirement of license holders to display the license upon demand for identification by a peace officer (§§411.187(a),(c), and 411.205). Failure to display the license upon demand for identification by peace officer will no longer be grounds for suspension of license (currently 90 day suspension). The offense itself remains, albeit without penalty. HB 2730 Article 12A
HB 1498 Instructor CHL License
Amends section 411.179(c) to add CHL instructors to the list of individuals who may obtain a special CHL that describes the individual's status as a CHL instructor (currently, this provision is applicable only to judges and D.A.'s).
HB 3875 Online Courses
Amends section 411.188 to grant the Department the authority to offer online, or to allow instructors to offer online, the renewal course to licensees. HB 2730 §5.10.
Amends section 411.190 to require that CHL instructor's training be offered through an online format for the initial renewal and on alternate subsequent renewals. Requires the creation of an online training course, and the necessary website modifications to administer the course. HB 2730 §5.11; §11.15.
HB 4037 Publication of Instructor‟s List
Amends the statute’s confidentiality provision, section 411.192, to add the phone numbers and email and website addresses of CHL holders to the information that may be disclosed to law enforcement agencies. More significantly, it requires that the Department provide to the public a list of certified handgun instructors, and that such list include the name, phone number, email and website addresses. It provides an ―opt-in‖ requirement, however, such that individual instructors must submit a written request for information to be made available to public. HB 2730 §6.03.
HB 3987 CHLB‟s “Clean-up” bill – HB 2730 Article 11
Amends Section 411.1711, entitled ―Certain Exemptions from Convictions,‖ which currently disqualifies only those offenses provided in Title 5 and Chapter 29 of the Texas Penal Code from the application of this exemption for felony-level deferred adjudications over ten years old. The amendments add the following offenses to those that currently preclude application of the exemption: Burglary of a Habitation or Shelter, and Violation of Protective Order Issued on Basis of Sexual Assault. The amendments also clarify how offenses from other states are to be evaluated.
Amends several subsections of Section 411.172, ―Eligibility.‖ The changes to subsections (4) and (8) clarify that out-of-state criminal offenses need not be explicitly named or classified in a manner identical to such offenses in Texas. Subsection (12) is repealed, thereby eliminating student loan defaults as a disqualifier. The changes to subsection (15) are consistent with the proposed repeal of Section 411.175, relating to pre-application eligibility reviews (see below). The changes to subsection (e)(1) remove the five-year limitation on the use of an involuntary commitment or hospitalization as evidence of a psychiatric disorder, in order that the statute will comport with federal firearms law. In addition, the changes to subsection (e)(2) reflect the federal law’s disqualification of an individual if who has received court-ordered, outpatient
treatment. Proposed subsection (e)(6) reflects the current standard under federal law regarding competency.
Amends Sections 411.174, ―Application,‖ 411.184, ―Modification,‖ 411.185, ―Renewal,‖ and 411.201, ―Active and Retired Judicial Officers,‖ to provide discretion to the Department regarding the type of photographs to be used for licenses, and to eliminate the current requirement that the Department provide – and that instructors issue — separate ―proficiency certificates,‖ instead providing for discretion to establish alternative methods by which proficiency may be documented. Similarly, the amendments to Sections § 411.177, ―Issuance or Denial of License,‖ and 411.188, ―Handgun Proficiency Requirement,‖ to 411.1882, ―Exemption from Handgun Proficiency Certificate Requirement …,‖ and the repeal of 411.189, ―Handgun Proficiency Certificate,‖ are consistent with the proposed elimination of the proficiency certificate requirement.
Repeals Section 411.175, ―Request for Application Materials,‖ which currently requires a pre-application assessment of an applicant’s eligibility prior to the applicant’s submission of fingerprints or fees.
Amends Section 411.176, ―Review of Application Materials,‖ to clarify that Department employees who obtain court documents and criminal history records from local court clerks need not be commissioned peace officers, and clarifies the authority of those individuals to obtain such documents.
Amends Sections 411.186, ―Revocation,‖ and 411.187, ―Suspension of License,‖ to clarify that the Department must suspend or revoke a license when the licensee becomes ineligible. The revocation provision is also modified to clarify that ―false information‖ provided on an application must be a ―material misrepresentation‖ or involve the failure to disclose a ―material fact.‖ Finally, as revocation is now mandatory for the reasons listed in section 411.186, the provision relating to dishonored checks has been modified to provide a ―safe harbor,‖ whereby the applicant can submit a cashiers’ check, with an additional fee, within 30 days of notification, and thereby avoid revocation.
Amends Section 411.1991, ―Active Peace Officers,‖ to update the statutory reference to Chapter 1701 of the Occupations Code. The previously cited statute has been repealed (moved to Occ. Code).
Amends Section 411.201, ―Active and Retired Judicial Officers,‖ to clarify that affidavits and fingerprints are necessary for all applicants (including such officers). Fingerprints are required on all individuals in order to maintain the concealed handgun license’s designation as a NICS alternate permit.
Amends Section 411.208, ―Limitation of Liability,‖ to create an exemption from the immunity for damages otherwise afforded to concealed handgun licensing instructors in cases involving fraud or deceptive trade practice.
The proposed changes to Article 17.292(1) of the Code of Criminal Procedure and to Section
85.002(d) of the Family Code mandate that a magistrate suspend the concealed handgun license held by the subject of an emergency protective order. Under current law, such action is arguably discretionary.
The changes to Sections 12.095(e) and 12.097(b) of the Health & Safety Code render the provisions governing the use of medical records and related testimony in administrative hearings applicable to hearings conducted under the authority of the Concealed Handgun Statute.
SFM 8.03.09