SB259: Sen. Ellis Wants DPS To Do What!?

Apparently Sen. Ellis thinks the Texas Dept. of Public Safety has too little to do and the Texas treasury is burdened with too much cash.  Charles L. Cotton

Senator Rodney Ellis has filed SB259 that is mind-boggling in terms of its detrimental impact on the Texas Dept. of Public Safety workload and the financial burden it would impose on the State budget. To make matters worse, Sen. Ellis’ Bill would require the DPS to perform work that is already being done by federal agencies at no cost to the State of Texas. The bill deals with criminal background checks that are conducted when a person purchases a firearm from a licensed gun dealer.

 NICS background checks

The National Instant Check System (NICS) is used by gun dealers (FFLs) who are licensed by the Federal Bureau of Alcohol, Tobacco, Firearms & Explosives (BATFE) to sell firearms. The NICS system is used to conduct a mandatory criminal background check when an FFL sells a firearm to an individual, with certain exceptions. (If the buyer has a firearms license issued by their state that requires a criminal history background check before the license is issued, then that person is except from the NICS background check.) There are two federal agencies involved in administering the program. The BATFE provides the information for the database and is responsible for its accuracy. The FBI actually owns, operates and maintains the computers on which the NICS information is stored.

NICS checks are either done by the feds or state police agencies.

There are two options for conducting the federally-required NICS background check. The FBI/BATFE performs the computerized background checks for the vast majority of millions of gun sales each year, while a few states have elected to shoulder the burden and are referred to as the Point of Contact (POC) for all firearms sales within their state. Texas is not among those states opting to be the POC for gun sales in our State.

One must wonder why any state would choose to spend the money to conduct background checks as the POC when the FBI/BATFE will do them at no charge to the state, the FFL, or the firearm purchaser. Regardless of the rationale, becoming the POC for all gun sales within a state is a major undertaking in terms of cost and workload. Sen. Ellis’ SB259 would unnecessarily force this burden and financial cost on Texas.

Let’s look at the numbers.

According to FBI reports, in 2014 there were 1,465,992 NICS background checks performed by the FBI for Texas residents. Although the number of background checks varied by month from a low of 91,133 (June) to a high of 180,658 (Dec.), most months were in the 115,000 to 130,000+ range. The monthly average was 122,166 background checks. That is a lot of background checks!

Let’s break that down further to see how much additional work Sen. Ellis would place on already overworked DPS personnel. SB259 would require DPS to have personnel working at least twelve hours a day for 363 days a year, taking off only Thanksgiving Day and Christmas. If the number of background checks were evenly disbursed, DPS would have to process 4,038 background checks every single day for 363 workdays every year. Hold on, it gets worse. That is 337 NICS checks every hour for a twelve hour day, i.e. 5.6 background checks every minute!

How many people will DPS have to hire and train in order to meet this unreasonable workload? How many overtime hours will be required for the 12-hour day that SB259 would mandate? How would DPS schedule background check personnel when the number of checks in 2014 range from 91,133 in June to double that number (180,658) in December? The better question is why should Texas take on this financial and workload burden when the FBI is already doing it for no charge?

Backdoor gun control provisions.

SB259 would require a background check on all firearm transfers except to “close family members.” This goes even beyond the private sales at gun shows Sen. Ellis is trying to regulate with SB258.  (See, SB258 by Sen. Ellis: Yet Another Absurd Gun Show Bill.)

Conflicting language in the Bill also may allow or require the DPS to keep certain records concerning firearm purchasers. This is not clear, but it is clear that there is no statutory provision that calls for destruction of information gathered during the background check as is found in the federal Brady Law. SB259 requires to DPS to include 48 destruction by rule, but this should be included in the statute rather than requiring a specific rule that may or may not be adopted. It is also noteworthy that even the rule regarding destruction of documents and information would apply only to transfers that were approved, not to those that were denied.

SB259 would also allow DPS to either seize or aid federal agencies in seizing any firearms that were purchased in violation of federal law. Currently, the BATFE takes care of this function and once again, Sen. Ellis wants to force DPS to do that which is currently being done by federal agencies with no cost to the State of Texas.

The appeals process set out in SB259 is limited to investigating and correcting inaccurate criminal history records. If a firearm transfer is wrongfully denied due to inaccurate mental health or family court records, or in spite of the fact that a person’s firearms rights have been restored by a court, the DPS would nevertheless have to deny the transfer and the would-be purchaser would not have an avenue of appeal.


Sen. Ellis has a rich history of filing ridiculous anti-gun bills, but his filing of SB259 boggles the mind. Although his Bill does not yet have a fiscal note attached, the cost to Texas will be staggering – in the millions of dollars. The NICS background check currently performed by the FBI is not limited to entering a name into a computer. It requires talking with FFLs who do not access the computer directly, communicating with buyers who are wrongfully rejected, and numerous other administrative functions that go along with the responsibility of running the NICS system. All of these activities would have to be performed by DPS personnel, if SB259 were to pass.

SB259 would require Texas to spend millions of dollars to perform a function that the FBI currently does at no cost to Texas. That, Senator Ellis, is crazy!