SB1189 - Dealing with return of seized firearms

[Charles L. Cotton]

This bill’s predecessor has an interesting history that voters need to be aware of, so I’ll give you an overall synopses of how it came into being.

When someone is taken into custody by a law enforcement agency pursuant to an emergency mental health warrant, any firearms on or about their person are seized by the agency. If the person is released from custody without any court order or diagnosis that would prevent them from possessing firearms under federal or state law, some police departments and sheriff department’s will not return the seized firearms without a court order. This is not required by law and many agencies will do the right thing and return the firearms without forcing the gun owner to file suit and get a court order for return of their property. The larger agencies that refuse to return firearms without a court order do so primarily for fear of being sued if the person to whom the guns were return later uses them to murder someone.

In the early part of 2012, I was contacted by the Friendwood Police Department and asked to work with that agency as well as officers and an attorney from the Houston Police Department in drafting a bill that would protect gun owners’ rights and protect police departments from lawsuits by establishing a statutory procedure for return of any firearms seized from a person taken into custody pursuant to an emergency mental health warrant. Over a period of several months, a bill was crafted that achieved the above-referenced goals. It created a statutory procedure requiring law enforcement agencies to return guns to the person from whom they were seized, or, if they were legally disqualified from possessing firearms, the guns were to be given to co-owners such as spouses. If co-owners did not exist, or if they too were disqualified under state or federal law from possessing firearms, then the gun would be given to a designee named by the original gun owner. In a worst case scenario, the gun would be sold by an FFL and the proceeds of the sale would go to the gun owner.

The bill jointly drafted also had specific language protecting gun owners. For example, it clearly stated that mental health warrants are not justification to search the person’s home and seize all firearms located. The bill also made it unlawful for any seized firearm to be destroyed or forfeited to any law enforcement agency or personnel.

When the final form of the bill was agreed upon, it is unclear to me how and by whom it was ultimately given to Senator Huffman. What is clear is that someone in the legislative counsel’s office redrafted the bill and in so doing transformed it from a bill that protected the rights of gun owners and law enforcement agencies into one that every Texas gun owner should vigorously oppose. The problems with the as-filed version SB 1189 are too numerous to cover in this post. Reportedly, a committee substitute is going to be filed that corrects most of the problems with the version drafted by legislative council. However, the latest information provided to me is that the proposed substitute retains a deal-breaking provision. This provision would require the gun owner, a co-owner, or their designee, to petition a court to recover their firearm.

The original bill was drafted to prevent gun owners from having to do precisely what the proposed substitute will make a statutory requirement. Instead of solving this problem for firearms owners, SB 1189 would make court intervention a statutory requirement to recover one’s personal property. If the proposed committee substitute to SB 1189 deletes the provision requiring the gun owner to petition a court, and if the bill is returned to its original form as was presented to Senator Huffman, then it will be a very good bill and it deserves the support of all gun owners. However, if the bill is not returned to its original form, or if it retains any requirement to petition a court for return of a firearm, then it should be vigorously opposed by all Texas gun owners.

Please contact the members of the senate criminal justice committee and express your strong opposition to SB 1189 in its as-filed form, as well as any committee substitutes that contain a requirement to petition a court for recovery of firearms.

In closing I want to say that I do not believe Sen. Huffman has any desire to work against the interest of Texas gun owners. It is my opinion that she was fallen victim to legislative counsel that want to put their spin on the bill, thereby making a policy decision that is not their duty or prerogative.

Chas.

SENATE CRIMINAL JUSTICE COMMITTEE:

Sen. John Whitmire (512) 463-0115
Sen. Joan Huffman (512) 463-0117
Sen. John Carona (512) 463-0116
Sen. Juan Hinojosa (512) 463-0120
Sen. Dan Patrick (512) 463-0107
Sen. José R. Rodríguez (512) 463-0129
Sen. Charles Schwertner (512) 463-0105

[artx]

Faxes sent!

[BigGuy]

emails sent.

[Charles L. Cotton]

I have been provided a copy of the committee substitute for SB1189 that will be offered today. The substitute removes all of the problematic language and gun owners can now support this bill. It protects the rights of gun owners while establishing a statutory procedure for return of firearms seized from people taken into custody on emergency mental health warrants. This not only requires law enforcement agencies to return guns, it expressly prohibits their destruction or forfeiture to the state.

Please call the Members of the Senate Committee and tell them you support the committee substitute for SB1189.

Thanks,
Chas.

[BigGuy]

emails sent

[Skiprr]

Thank you, Charles. Committee members contacted this morning.

[chasfm11]

Thank you, Charles. Committee members contacted this morning.

x2

[RHenriksen]

Called all members & left voicemail.