SB124 by Sen. West: A Wolf in Sheep’s Clothing

Whenever an elected official contemplates filing a bill that would restrict a citizen’s right or ability to do something, or that would require a citizen to do something, the threshold question must be “what problem is this proposed new law going to fix?” If the answer is “none,” “I don’t know,” or “maybe . . .” then the bill should not be filed.

SB124 purports to make certain firearm transfers unlawful; it already is unlawful.

At its core, SB124 would make it unlawful to 1) “sell, rent, lease, loan or give a firearm” to anyone knowing that that person intends to use the firearm in a crime;

2) purchase a firearm with the intent to deliver it to a person who intends to use it in the commission of a crime or to possess it unlawfully; or 3) lie on a federal form (4473) when purchasing a firearm from a gun dealer. This looks reasonable on its face and it appears to be something that law makers should address. They already have been addressed in Texas and/or federal law.

Everything in SB124 is already illegal.

It is already illegal for someone to provide a handgun to anyone knowing they intend to use it in the commission of a crime. (Tex. Penal Code §46.06(a)(1)). If SB124 merely changed the word “handgun” to “firearm,” then the change would be reasonable albeit unnecessary. But SB124 does not stop there.

SB124 would also make it unlawful to purchase a firearm with the intent to provide it to someone knowing they plan to use it in a crime or even possess it unlawfully. This too is already illegal under Texas and/or federal law. Under Tex. Penal Code §71.01(b), this would be a conspiracy to commit a crime. It would also be a “straw purchase” that is illegal under federal law, so there are currently two ways a person could be prosecuted.

SB124 would also make it unlawful to lie on a Form 4473 when purchasing a firearm from a licensed gun dealer. As noted above, this is a “straw purchase” that is already illegal under federal law.

One need only to read Subsection (f) of SB124 and it becomes clear that Sen. West realizes that the conduct addressed in his Bill is already unlawful. Subsection (f) reads, “To the extent of any conflict between this section and a federal law related to unlawful transfer or purchase of weapons, the federal law prevails.

Where is the wolf?

One might ask “if everything is SB124 is already unlawful, where is the wolf mentioned in the title?” It is in the proposed new subsection 46.06(a)(2) where it reads “purchase . . . a firearm with the intent to deliver the firearm to a person knowing that the person . . . intends to possess the firearm unlawfully . . .” While federal law that makes it unlawful to provide a firearm to a prohibited person, 18 U.S.C. 922(d) very clearly lists the persons to whom a firearm cannot be given or otherwise provided. One can read the federal law and know precisely who is in the prohibited category. Contrast federal law with SB124 that uses very imprecise and vague terms making it impossible for a person to know precisely who is and is not prohibited from possessing firearms under the terms of SB124. Note also that one can purchase a firearm to be given to a friend or relative as a gift and they do not violate Texas or federal law. One can also loan a firearm to anyone who is not known to be a prohibited person.

SB124’s focus on “intent” is an invitation to arrest and prosecution so the “jury can sort it out.” How can a defendant prove a negative, i.e. that they did not “intend” to provide a firearm knowing that the recipient “intended” to use or possess it unlawfully? Including “intent” in SB124 makes it quite possible that an innocent person could be arrested and convicted when no crime actually occurred.


The answer to the threshold question “what problem is this proposed new law going to fix[?]” is clearly “nothing.” Every legitimate issue in SB124 has already been addressed in Texas law, federal law, or both. The “wolf” in SB124 is nothing more than a trap for law-abiding Texans who could unknowingly and unintentionally violate the vague provisions of the Bill. Unscrupulous and/or anti-gun prosecutors could have a field day with the nebulous “intent” provisions in SB124 forcing innocent Texans to hire an attorney to defend groundless charges.

The bottom line: If someone provides a firearm to another person knowing they intend to commit a robbery, assault, rape or murder, there are already laws on the books and they can be prosecuted. If a person purchases a firearm as a “straw purchase” rather than a legitimate gift, they can be prosecuted under federal law where they face 10 year prison term and a $250,000 fine. Texas does not need SB124.