Texas House lawmakers are considering legislation that would clamp down on most firearms-related red flag laws and establish penalties for violators.
Around the country, certain state courts have discretion to issue extreme risk protective orders, also known as “red flag” orders, which prevent an individual from owning or purchasing a firearm during legal proceedings.
Senate Bill 1362 by State Sen. Bryan Hughes (R–Mineola), dubbed the “Anti-Red Flag Act,” seeks to preemptively prevent those orders from coming into Texas.
Hughes’ proposal would limit courts’ ability to hand down orders restricting firearms to cases in which there is a specific criminal charge. In addition, it would bar local jurisdictions from accepting federal funding to implement or enforce ERPOs.
An individual found in violation could receive a state jail felony conviction, resulting in jail time of at least 180 days or up to two years and fines of up to $10,000.
The measure was first filed by Hughes in February. Senators passed it out of committee in early March and off the floor later that month.
State Rep. Cole Hefner (R-Mount Pleasant) presented SB 1362 before the House Criminal Jurisprudence Committee on Thursday morning.
SB 1362 “reinforces Texas’s commitment to protecting the rights of law-abiding citizens, while ensuring due process for all Texans,” said Hefner before the committee.
Nicholas Tuccio, state director for the National Rifle Association, testified in favor of SB 1362.
“It is absolutely vital to recognize that the orders that this bill addresses are specifically defined as those not issued on the basis of conduct that resulted in a criminal charge for the person who is subject to the order,” said Tuccio.
“The NRA staunchly believes that the removal of a person’s fundamental, constitutionally protected right to keep and bear arms must occur only through a process that rigorously respects due process and the rule of law,” he added.
Molly Voyles, director of public policy for the Texas Council on Family Violence, testified neutral on the measure, but noted that her organization has been in contact with Hughes’ office.
“We’re working with an author on a substitute [for] a potential language change, and we have appreciated Sen. Hughes’ office for collaborating with us,” revealed Voyles.
“Family violence protective orders are not affected by this bill, and that’s very important,” she continued. However, “we believe it’s critical this measure be completely explicit so there can be no confusion.”
CJ Grisham, legal and legislative counsel for Texas Gun Rights, pointed out that the current standards around the country determining what qualifies for an extreme risk protective order are vague and inconsistent.
“There are some places where literally if a neighbor just presents some affidavit—boom, there you go, ERPO,” said Grisham. “And there are some states that require even more due process. For example, going through a court process.”
State Rep. Mitch Little (R-Lewisville) asked Grisham which states have ERPOs currently in place. Grisham listed several states, including: California, New York, Illinois, New Mexico, Oregon, Washington, and Hawaii.
Little then asked if people with an ERPO in California are being reprimanded in Texas by law enforcement seeking to enforce the out-of-state order.
Grisham said that Texas law enforcement would likely not enforce an out-of-state ERPO unless probable cause existed for them to act upon it.
Nicole Golden, the executive director of Texas Gun Sense, said her group opposed SB 1362.
“ERPOs balance robust due process procedural safeguards with timely intervention by authorizing the temporary removal of firearms and prohibiting individuals from purchasing or possessing firearms while the order is in effect,” said Golden.
SB 1362 was left pending in committee.
