Senators have heard testimony in the State Affairs Committee from citizen activists on proposed anti-red flag legislation.
Senate Bill 1362, filed by State Sen. Brian Hughes (R-Mineola), would prohibit courts from issuing extreme risk protective orders, better known as “red flag” orders, that prevent an individual from owning or purchasing a firearm during legal proceedings.
The measure also preemptively directs the state not to comply with any potential federal red flag laws that could be implemented and prohibits agencies from accepting federal money to enforce any potential federal red flag laws.
SB 1362’s only exception for courts issuing extreme risk protective orders is if the order is relevant to the specific criminal charge.
An individual found in violation of SB 1362 could receive a state jail felony, which carries with it jail time of at least 180 days or up to two years and fines of up to $10,000.
“This is a situation where a law-abiding Texan based on a random report or complaint can be deprived of their constitutional rights without due process. This bill is about … making sure that doesn’t happen in Texas,” said Hughes.
State Sen. Brian Birdwell (R-Granbury) recommended to Hughes that he add a severability clause that ensures the section on rejecting potential federal flag laws does not invalidate the rest of the measure.
“To my recommendation, there would have to be some sort of severability of [the provisions on federal red flag laws] should we not prevail in federal court, that the rest of the bill doesn’t die because of this question related to [the U.S. Constitution’s] Supremacy [Clause] not being severable,” said Birdwell.
Hughes responded by repeating the Legislative Council’s interpretation that, under the Code Construction Act, “every bill has a severability clause built in.” However, Hughes was still open to Birdwell’s suggestion.
Both lawmakers agreed to meet with lawyers to discuss ways to improve, if necessary, SB 1362’s anticipated federal red flag law provisions.
True Texas Project President Fran Rhodes testified in favor of SB 1362, highlighting citizens’ Second Amendment right to keep and bear arms and the Fourth Amendment’s protections against unreasonable searches and seizures.
“Red flag laws violate both of those amendments,” argued Rhodes. “This legislation is important in protecting the rights of all Texans to possess firearms and the right to due process before any property can be taken away.”
Rhodes also noted that there is “no real evidence” that red flag orders are effective anyway, citing reports from The New York Times and The Washington Post that include studies contesting the effects of the orders.
Kyle Rittenhouse, who oversees industry relations at Texas Gun Rights, spoke in support of SB 1362, drawing on the personal experience of his high-profile self-defense case.
“I know firsthand the importance of self defense and the weight that comes with exercising that right,” said Rittenhouse. “But I also know how quickly false accusations and misinformation can be weaponized to destroy a person’s life.”
“Imagine losing your ability to protect your family, your home, and your life all because someone made an accusation without evidence. That’s not justice, that’s government overreach,” he added.
The measure was left pending before the committee to be voted on at a later date.
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