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Friday, August 9, 2013

What Every Firearms Instructor Needs to Know About the Recent Legislative Session

The great State of Texas has survived yet another legislative session, and the recent legislative typhoon has greatly changed the landscape for CHL instructors. While there were quite a few beneficial bills that died in committee, there are more and plenty that made it through and are becoming the law, with the vast majority altering the licensing process. This isn't just a legislative update; this is what every firearms instructor needs to know about the recent legislative session. As always, if any of our Texas Law Shield instructors need more information, please feel free to call any of your firearms program attorneys, or you can email the author at cooper@texaslawshield.com.


Changes to Procedure

 CHL Process Modifications


Starting September 1, 2013, the process for instructing a new applicant for a concealed handgun license, as well as that for renewals, will undergo significant modifications due to recent legislative action.

New applicant classes (not including range time) have been reduced to a minimum of 4, and a maximum of 6 hours. New applicants will still have to show up in person, as opposed to going online, to take this reduced class, and they can take it with whatever firearm they wish while not being stuck into a firearm categorization. Effective immediately, there is no longer a rule that qualifying with a revolver means you can only carry a revolver.

Classes for renewals are going away completely. All those renewing a CHL will have to do is go online, submit an application, pay a fee, and sign an acknowledgement of the law. There is no requirement to re-qualify in a class or at the range.

There is also no longer a requirement for social security numbers for new applicants or renewals, and no longer does a person need to send in passport photos as their driver's license picture will be used instead. The department is also supposed to create procedures for those who live in a county of 46,000 people or less, with no facility capable of processing digital or electronic fingerprints within a 25-mile radius.

There could have been some perceived conflict between two bills, SB 864 and HB 48. These two bills looked as if they modified the same sections, yet provided for different procedures. SB 864 states that there are renewal classes but they can be taken online, while HB 48 states that there is no longer a requirement for renewal classes at all. Based on how the two bills are written and the order in which each passed, it appears that HB 48 would be controlling with regards to renewals. In other words, there is probably no longer a CHL renewal class requirement. Texas Representative Flynn's office confirmed that this is how the two bills are intended to reconcile; Flynn was the author of HB 48, and a sponsor of SB 864.

Unfortunately, these laws leave plenty of space for the high strangeness that is real life to wriggle in. Since the new applicant class has been reduced to a minimum of 4 hours, and a maximum of 6, what happens if a class goes above 6 hours? When contacted regarding this matter, the Texas Department of Public Safety stated that there is no penalty for going over the 6 hour mark, and to quote their representative, "We encourage people to go over the time limit." How this will balance out with the real world practical business problem of having an appealing class length to attract customers remains to be seen.

Regrettably, not everyone is up to date on the law. There may be students who haphazardly wander into a facility and ask for a renewal class, without the knowledge that there is no longer a requirement for such a class. What are you to do in that situation? The DPS indicated that it is the individual's responsibility to understand the requirements for their renewal, and that they would not punish an instructor if they gave such a class. However, if an instructor charges a student for a class under the guise that it is required by law to renew, there's a very high probability you could be committing an intentional fraudulent act, and even possibly be at risk for damages under the Texas Deceptive Trade Practice and Consumer Protection Act.

With regards to the curriculum, although the time allotted for instruction was shortened, there was no bill that modified the Administrative Code's requirements of what must be covered in the class. The DPS indicated that naturally the curriculum will most likely be pared down, however there is no official finalized document as of yet.

The final set of oddities that one could face would be timing. For example, if a person with a CHL that expires in December was to try to renew right now, what happens? Or, what is the result of someone that completes their paperwork to renew now but takes the renewal class September 3rd? Does the bill apply to licenses issued only after September 1st, or anybody that needs to renew? This is solved by the final paragraph of HB 48. Section 7 of HB 48 states that the law applies only to applications submitted to the department on or after September 1, 2013. Therefore, the only question at that point is when the application was submitted to the department.

We can use this information to solve the thought experiments above. With regard to the CHL holder whose license expires in December, should they choose to renew right now, they would face the current law because their application to the DPS was submitted before September 1st, and the renewal class would still be required. In the second scenario, if the paperwork is submitted now, they will still need to take the class to renew their CHL, even if the class is scheduled to be after September 1st. However, if they have not sent their application in to the department but merely filled it out on paper, then they could be governed by the new laws. The final question is answered easily; it applies to any CHL holder, regardless of the date their license was issued, so long as the application is submitted to the department on or after September 1st.

SB 864, which changes things for new applicants, applies similarly. Applicants who submit their application to the department before September 1st must take the 10 hour minimum class. Those who apply afterwards need only take the 4 hour minimum class. The only possible strangeness here is the applicant that takes the 10 hour class August 31st, but doesn't submit their paperwork until after September 1st. However, this is not as difficult a situation as it first appears; the department takes no issue with a class exceeding its maximum guidelines, and therefore the 10 hour class completion certificate should be fine for the new applicant. Accordingly if someone submits their application August 31st, no matter how long they wait, they will have to take the 10 hour minimum class.

Changes to Law

Failure to Conceal

The failure to conceal law has received some attention during the legislative session as well. The current phrase of "intentional failure to conceal" will be changed to "intentional display of the handgun" in plain view of another person in a public place. While it may seem a victory at first, the statute is unclear as to how this substantively changes the current law by failing to define what constitutes a "display" or "plain view of another person." Only time and the courts will show us how this change will affect our lives. On a positive note, SB 299 also reconciles the "display" of a handgun with the use of force statutes by stating that the justification for use of force, not just deadly force, would be a defense to this crime. The statute formerly limited justifiable failure to conceal to only those situations where the use of deadly force was justified.

Hotels

With the passing of HB 333, hotels will be required to tell its guests up-front of any restrictive firearms policies prior to booking the rooms. Furthermore, they must receive an affirmative acknowledgement of their firearm policy. In other words, they couldn't hide a TPC §30.06 notice in the second to last page of their impossible to find policy document without telling their guests about it.

Seizure and Disposition of Weapons

For better or for worse, one of the first bills to be signed by the governor was the bill regarding the auctioning of seized weapons, HB 1421. This bill allows law enforcement agencies to sell seized weapons that are not claimed by the owner at public auctions. Only licensed firearms dealers are allowed to purchase these seized firearms at such an auction, and the proceeds of the sale would go directly to the law enforcement agency. Previously the only options available to the police were destroying the gun, or keeping it for police use.

There are also new procedures for the seizure of weapons by police officers from the mentally ill, described by SB 1189. If the officer has reason to believe and does believe that the person is mentally ill, and that because of the mental illness there is a substantial risk of harm unless the person is immediately restrained, then the officer may seize any firearm found in possession of that person.

The police have to follow a certain procedure in giving the receipt of the seizure, and informing the person how they can get their firearm back once they've received treatment or been released. Of note is the fact that, after a person has been released, the law enforcement agency will conduct a background check to verify whether or not the person can still lawfully possess the firearm.

Firearms and Schools

A few bills related to educational institutions and carrying did not pass the legislative session. Campus carry did not pass in time in the regular session, and though it had been proposed in the first special session it again did not pass. The governor vetoed SB 17, which would have required employees that had a CHL and authorization from the school to carry to undergo special training before being allowed to carry on the school property.

However, there were two important bills that did pass. The first is SB 1857. The legislature created an optional training program for employees of school districts, who are also CHL holders, to receive specific and appropriate training for their environment. SB 1857 lets the DPS establish a process to enable qualified handgun instructors to obtain an additional certification to instruct the school safety course, and outlines the requirements for a school safety course. This course can be provided by qualified instructors to CHL holders that are employees of a school district or an open-enrollment charter school. Note that this doesn't affect the fact that CHL holders need written authorization to carry in educational institution buildings.

The other bill that passed, SB 1907, makes it illegal for campuses to institute discipline policies against students and employees who are CHL holders that have firearms in their vehicles in the parking lots or streets. Keep in mind, both before and after this bill, it was legal for a CHL holder to leave his firearm in the vehicle on a college campus; however, some campuses adopted rules that would allow them to take disciplinary action against students who brought firearms into these legal areas. Now, they have received explicit instructions to no longer try to side step the law by having stringent and restrictive policies on firearms in the vehicles of CHL holders. With all of this said, the statute does not provide a penalty for college campuses that violate the law, nor does it prescribe a remedy for those affected by campuses who ignore SB 1907.

Even though we've made it through the numerous legislative sessions, we must remain ever vigilant and observant of our rights, lest we lose them. Texas Law Shield will keep a watchful eye out for how these bills are applied by the courts, and will be sure to keep you updated.

Sincerely,

Texas Law Shield, LLP 

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