87R1390 TSS-D     By: Meza H.B. No. 172       A BILL TO BE ENTITLED   AN ACT   relating to creating a criminal offense for the unlawful possession   or transfer of an assault weapon.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Chapter 46, Penal Code, is amended by adding   Section 46.055 to read as follows:          Sec. 46.055.  UNLAWFUL POSSESSION OR TRANSFER OF ASSAULT   WEAPON. (a) In this section, "assault weapon" means:                (1)  a semiautomatic centerfire rifle that has the   capacity to accept a detachable magazine that has:                      (A)  a pistol grip that protrudes conspicuously   beneath the action of the firearm;                      (B)  a folding or telescoping stock;                      (C)  a thumbhole stock;                      (D)  a second handgrip or a protruding grip that   can be held by the non-trigger hand;                      (E)  a flash suppressor; or                      (F)  a grenade launcher or flare launcher;                (2)  a semiautomatic centerfire rifle that has a fixed   magazine that holds more than 10 rounds of ammunition;                (3)  a semiautomatic centerfire rifle that has an   overall length of less than 30 inches;                (4)  a semiautomatic shotgun that has the capacity to   accept a detachable magazine;                (5)  a semiautomatic shotgun that has a folding or   telescoping stock and has:                      (A)  a thumbhole stock; or                      (B)  a second handgrip or a protruding grip that   can be held by the non-trigger hand;                (6)  a semiautomatic pistol that has the capacity to   accept a detachable magazine and has:                      (A)  a second handgrip or a protruding grip that   can be held by the non-trigger hand;                      (B)  an ammunition magazine that attaches to the   pistol outside of the pistol grip;                      (C)  a threaded barrel capable of accepting a   flash suppressor, forward handgrip, or silencer; or                      (D)  a shroud that is attached to or partially or   completely encircles the barrel and that permits the shooter to   hold the firearm with the non-trigger hand without being burned;                (7)  a semiautomatic pistol that has a fixed magazine   that holds more than 10 rounds of ammunition;                (8)  a revolving cylinder shotgun; or                (9)  a conversion kit, part, or combination of parts   from which an assault weapon can be assembled or with which a   firearm may be converted into a weapon described by Subdivision   (1), (2), (3), (4), (5), (6), (7), or (8).          (b)  For purposes of this section, "assault weapon" does not   include any rifle, shotgun, or pistol that has been rendered   permanently inoperable.          (c)  A person commits an offense if the person knowingly:                (1)  possesses an assault weapon; or                (2)  sells, offers to sell, or otherwise transfers an   assault weapon.          (d)  An offense under this section is a Class A misdemeanor.          (e)  It is a defense to prosecution under this section that   the actor engaged in the conduct while engaged in the actual   discharge of official duties, or directly en route to or from the   person's place of assignment, as:                (1)  a peace officer; or                (2)  a member of the armed forces or state military   forces as defined by Section 431.001, Government Code.          (f)  It is a defense to prosecution under Subsection (c)(1)   that the actor lawfully possessed the assault weapon on August 31,   2021.          (g)  If conduct that constitutes an offense under this   section also constitutes an offense under any other law, the actor   may be prosecuted under this section, the other law, or both.          SECTION 2.  Section 5.141(a), Alcoholic Beverage Code, is   amended to read as follows:          (a)  A commissioned inspector or representative of the   commission may purchase for an amount set by the commission, not to   exceed fair market value, a firearm issued to the inspector or   representative by the commission if:                (1)  the firearm is not:                      (A)  listed as a prohibited weapon under Section   46.05, Penal Code; or                      (B)  an assault weapon as defined by Section   46.055, Penal Code;[,] and                (2)  [if] the firearm is retired by the commission for   replacement purposes.          SECTION 3.  Article 15.27(h), Code of Criminal Procedure, is   amended to read as follows:          (h)  This article applies to any felony offense and the   following misdemeanors:                (1)  an offense under Section 20.02, 21.08, 22.01,   22.05, 22.07, or 71.02, Penal Code;                (2)  the unlawful use, sale, or possession of a   controlled substance, drug paraphernalia, or marihuana, as defined   by Chapter 481, Health and Safety Code; or                (3)  the unlawful possession of any of the weapons or   devices listed in Sections 46.01(1)-(14) or Section 46.01(16)    [(16)], Penal Code, [or] a weapon listed as a prohibited weapon   under Section 46.05, Penal Code, or an assault weapon as defined by   Section 46.055, Penal Code.          SECTION 4.  The heading to Article 18.18, Code of Criminal   Procedure, is amended to read as follows:          Art. 18.18.  DISPOSITION OF GAMBLING PARAPHERNALIA,   PROHIBITED WEAPON, ASSAULT WEAPON, CRIMINAL INSTRUMENT, AND OTHER   CONTRABAND.          SECTION 5.  Articles 18.18(a), (b), (e), (f), and (g), Code   of Criminal Procedure, are amended to read as follows:          (a)  Following the final conviction of a person for   possession of a gambling device or equipment, altered gambling   equipment, or gambling paraphernalia, for an offense involving a   criminal instrument, for an offense involving an obscene device or   material, for an offense involving child pornography, or for an   offense involving a scanning device or re-encoder, the court   entering the judgment of conviction shall order that the machine,   device, gambling equipment or gambling paraphernalia, instrument,   obscene device or material, child pornography, or scanning device   or re-encoder be destroyed or forfeited to the state. Not later than   the 30th day after the final conviction of a person for an offense   involving a prohibited weapon or an assault weapon, the court   entering the judgment of conviction on its own motion, on the motion   of the prosecuting attorney in the case, or on the motion of the law   enforcement agency initiating the complaint on notice to the   prosecuting attorney in the case if the prosecutor fails to move for   the order shall order that the prohibited weapon or assault weapon   be destroyed or forfeited to the law enforcement agency that   initiated the complaint. If the court fails to enter the order   within the time required by this subsection, any magistrate in the   county in which the offense occurred may enter the order. Following   the final conviction of a person for an offense involving dog   fighting, the court entering the judgment of conviction shall order   that any dog-fighting equipment be destroyed or forfeited to the   state. Destruction of dogs, if necessary, must be carried out by a   veterinarian licensed in this state or, if one is not available, by   trained personnel of a humane society or an animal shelter. If   forfeited, the court shall order the contraband delivered to the   state, any political subdivision of the state, or to any state   institution or agency. If gambling proceeds were seized, the court   shall order them forfeited to the state and shall transmit them to   the grand jury of the county in which they were seized for use in   investigating alleged violations of the Penal Code, or to the   state, any political subdivision of the state, or to any state   institution or agency.          (b)  If there is no prosecution or conviction following   seizure, the magistrate to whom the return was made shall notify in   writing the person found in possession of the alleged gambling   device or equipment, altered gambling equipment or gambling   paraphernalia, gambling proceeds, prohibited weapon, assault   weapon, obscene device or material, child pornography, scanning   device or re-encoder, criminal instrument, or dog-fighting   equipment to show cause why the property seized should not be   destroyed or the proceeds forfeited. The magistrate, on the motion   of the law enforcement agency seizing a prohibited weapon or an   assault weapon, shall order the weapon destroyed or forfeited to   the law enforcement agency seizing the weapon, unless a person   shows cause as to why the prohibited weapon or assault weapon should   not be destroyed or forfeited. A law enforcement agency shall make a   motion under this section in a timely manner after the time at which   the agency is informed in writing by the attorney representing the   state that no prosecution will arise from the seizure.          (e)  Any person interested in the alleged gambling device or   equipment, altered gambling equipment or gambling paraphernalia,   gambling proceeds, prohibited weapon, assault weapon, obscene   device or material, child pornography, scanning device or   re-encoder, criminal instrument, or dog-fighting equipment seized   must appear before the magistrate on the 20th day following the date   the notice was mailed or posted. Failure to timely appear forfeits   any interest the person may have in the property or proceeds seized,   and no person after failing to timely appear may contest   destruction or forfeiture.          (f)  If a person timely appears to show cause why the   property or proceeds should not be destroyed or forfeited, the   magistrate shall conduct a hearing on the issue and determine the   nature of property or proceeds and the person's interest therein.   Unless the person proves by a preponderance of the evidence that the   property or proceeds is not gambling equipment, altered gambling   equipment, gambling paraphernalia, gambling device, gambling   proceeds, prohibited weapon, assault weapon, obscene device or   material, child pornography, criminal instrument, scanning device   or re-encoder, or dog-fighting equipment and that he is entitled to   possession, the magistrate shall dispose of the property or   proceeds in accordance with Paragraph (a) of this article.          (g)  For purposes of this article:                (1)  "criminal instrument" has the meaning defined in   the Penal Code;                (2)  "gambling device or equipment, altered gambling   equipment or gambling paraphernalia" has the meaning defined in the   Penal Code;                (3)  "prohibited weapon" has the meaning defined in the   Penal Code;                (4)  "dog-fighting equipment" means:                      (A)  equipment used for training or handling a   fighting dog, including a harness, treadmill, cage, decoy, pen,   house for keeping a fighting dog, feeding apparatus, or training   pen;                      (B)  equipment used for transporting a fighting   dog, including any automobile, or other vehicle, and its   appurtenances which are intended to be used as a vehicle for   transporting a fighting dog;                      (C)  equipment used to promote or advertise an   exhibition of dog fighting, including a printing press or similar   equipment, paper, ink, or photography equipment; or                      (D)  a dog trained, being trained, or intended to   be used to fight with another dog;                (5)  "obscene device" and "obscene" have the meanings   assigned by Section 43.21, Penal Code;                (6)  "re-encoder" has the meaning assigned by Section   522.001, Business & Commerce Code;                (7)  "scanning device" has the meaning assigned by   Section 522.001, Business & Commerce Code; [and]                (8)  "obscene material" and "child pornography"   include digital images and the media and equipment on which those   images are stored; and                (9)  "assault weapon" has the meaning assigned by   Section 46.055, Penal Code.          SECTION 6.  Articles 18.19(a) and (d), Code of Criminal   Procedure, are amended to read as follows:          (a)  Weapons seized in connection with an offense involving   the use of a weapon or an offense under Penal Code Chapter 46 shall   be held by the law enforcement agency making the seizure, subject to   the following provisions, unless:                (1)  the weapon is a prohibited weapon identified in   Penal Code Chapter 46, or an assault weapon as defined by Section   46.055, Penal Code, in which event Article 18.18 of this code   applies; or                (2)  the weapon is alleged to be stolen property, in   which event Chapter 47 of this code applies.          (d)  A person either convicted or receiving deferred   adjudication under Chapter 46, Penal Code, is entitled to the   weapon seized upon request to the court in which the person was   convicted or placed on deferred adjudication. However, the court   entering the judgment shall order the weapon destroyed, sold at   public sale by the law enforcement agency holding the weapon or by   an auctioneer licensed under Chapter 1802, Occupations Code, or   forfeited to the state for use by the law enforcement agency holding   the weapon or by a county forensic laboratory designated by the   court if:                (1)  the person does not request the weapon before the   61st day after the date of the judgment of conviction or the order   placing the person on deferred adjudication;                (2)  the person has been previously convicted under   Chapter 46, Penal Code;                (3)  the weapon is one defined as a prohibited weapon or   an assault weapon under Chapter 46, Penal Code;                (4)  the offense for which the person is convicted or   receives deferred adjudication was committed in or on the premises   of a playground, school, video arcade facility, or youth center, as   those terms are defined by Section 481.134, Health and Safety Code;   or                (5)  the court determines based on the prior criminal   history of the defendant or based on the circumstances surrounding   the commission of the offense that possession of the seized weapon   would pose a threat to the community or one or more individuals.          SECTION 7.  Section 37.005(c), Education Code, is amended to   read as follows:          (c)  A student who is enrolled in a grade level below grade   three may not be placed in out-of-school suspension unless while on   school property or while attending a school-sponsored or   school-related activity on or off of school property, the student   engages in:                (1)  conduct that contains the elements of an offense   related to weapons under Section 46.02, [or] 46.05, or 46.055,   Penal Code;                (2)  conduct that contains the elements of a violent   offense under Section 22.01, 22.011, 22.02, or 22.021, Penal Code;   or                (3)  selling, giving, or delivering to another person   or possessing, using, or being under the influence of any amount of:                      (A)  marihuana or a controlled substance, as   defined by Chapter 481, Health and Safety Code, or by 21 U.S.C.   Section 801 et seq.;                      (B)  a dangerous drug, as defined by Chapter 483,   Health and Safety Code; or                      (C)  an alcoholic beverage, as defined by Section   1.04, Alcoholic Beverage Code.          SECTION 8.  Section 37.007(a), Education Code, is amended to   read as follows:          (a)  Except as provided by Subsection (k), a student shall be   expelled from a school if the student, on school property or while   attending a school-sponsored or school-related activity on or off   of school property:                (1)  engages in conduct that contains the elements of   the offense of unlawfully carrying weapons under Section 46.02,   Penal Code, [or] elements of an offense relating to prohibited   weapons under Section 46.05, Penal Code, or elements of an offense   relating to assault weapons under Section 46.055, Penal Code;                (2)  engages in conduct that contains the elements of   the offense of:                      (A)  aggravated assault under Section 22.02,   Penal Code, sexual assault under Section 22.011, Penal Code, or   aggravated sexual assault under Section 22.021, Penal Code;                      (B)  arson under Section 28.02, Penal Code;                      (C)  murder under Section 19.02, Penal Code,   capital murder under Section 19.03, Penal Code, or criminal   attempt, under Section 15.01, Penal Code, to commit murder or   capital murder;                      (D)  indecency with a child under Section 21.11,   Penal Code;                      (E)  aggravated kidnapping under Section 20.04,   Penal Code;                      (F)  aggravated robbery under Section 29.03,   Penal Code;                      (G)  manslaughter under Section 19.04, Penal   Code;                      (H)  criminally negligent homicide under Section   19.05, Penal Code; or                      (I)  continuous sexual abuse of young child or   children under Section 21.02, Penal Code; or                (3)  engages in conduct specified by Section   37.006(a)(2)(C) or (D), if the conduct is punishable as a felony.          SECTION 9.  Section 411.020(a), Government Code, is amended   to read as follows:          (a)  A commissioned officer of the department may purchase   for an amount set by the department, not to exceed fair market   value, a firearm issued to the officer by the department if:                (1)  the firearm is not:                      (A)  listed as a prohibited weapon under Section   46.05, Penal Code; or                      (B)  an assault weapon as defined by Section   46.055, Penal Code;[,] and                (2)  [if] the firearm is retired by the department for   replacement purposes.          SECTION 10.  Section 614.051(a), Government Code, is amended   to read as follows:          (a)  An individual may purchase a firearm from a governmental   entity if:                (1)  the individual was a peace officer commissioned by   the entity;                (2)  the individual was honorably retired from the   individual's commission by the entity;                (3)  the firearm had been previously issued to the   individual by the entity; and                (4)  the firearm is not a prohibited weapon under   Section 46.05, Penal Code, or an assault weapon as defined by   Section 46.055, Penal Code.          SECTION 11.  Section 614.052(a), Government Code, is amended   to read as follows:          (a)  An individual listed under Subsection (b) may purchase a   firearm from a governmental entity if:                (1)  the firearm had been previously issued by the   entity to a peace officer commissioned by the entity who died while   commissioned, without regard to whether the officer died while   discharging the officer's official duties; and                (2)  the firearm is not a prohibited weapon under   Section 46.05, Penal Code, or an assault weapon as defined by   Section 46.055, Penal Code.          SECTION 12.  Section 11.0193(a), Parks and Wildlife Code, is   amended to read as follows:          (a)  An employee commissioned by the director as a peace   officer may purchase for an amount set by the department, not to   exceed fair market value, a firearm issued to the person by the   department if:                (1)  the firearm is not:                      (A)  listed as a prohibited weapon under Section   46.05, Penal Code; or                      (B)  an assault weapon as defined by Section   46.055, Penal Code; and                (2)  the firearm is retired by the department for   replacement purposes.          SECTION 13.  Section 9.31(b), Penal Code, is amended to read   as follows:          (b)  The use of force against another is not justified:                (1)  in response to verbal provocation alone;                (2)  to resist an arrest or search that the actor knows   is being made by a peace officer, or by a person acting in a peace   officer's presence and at his direction, even though the arrest or   search is unlawful, unless the resistance is justified under   Subsection (c);                (3)  if the actor consented to the exact force used or   attempted by the other;                (4)  if the actor provoked the other's use or attempted   use of unlawful force, unless:                      (A)  the actor abandons the encounter, or clearly   communicates to the other his intent to do so reasonably believing   he cannot safely abandon the encounter; and                      (B)  the other nevertheless continues or attempts   to use unlawful force against the actor; or                (5)  if the actor sought an explanation from or   discussion with the other person concerning the actor's differences   with the other person while the actor was:                      (A)  carrying a weapon in violation of Section   46.02; [or]                      (B)  possessing or transporting a weapon in   violation of Section 46.05; or                      (C)  possessing an assault weapon in violation of   Section 46.055.          SECTION 14.  This Act takes effect September 1, 2021.