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Published on Monday, 10 December 2018 05:00
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Rep. Joe Moody’s HB131: “Extreme Risk Protective Orders”
A fraud on unsuspecting Texans
Before getting into a detailed analysis of Representative Moody’s HB 131, it must be noted that Moody attempted to pass a similar bill during the 2017 Texas legislative session. That bill, like this Bill, was so bad that it did not even get a vote in Representative Moody’s own committee. Moody’s 2017 bill was HB 866 and, like his current attempt, was nothing more than a firearms-confiscation bill.
HB131 – Not What It Appears to Be
A detailed analysis of HB 131 is set out in the following paragraphs. However, before diving into the Bill, let me explain why the subtitle is “a fraud on unsuspecting Texans.” Throughout his Bill, Rep. Moody’s sprinkles terms like “serious mental illness” and “local mental health authority.” The clear intent is to give the impression that this Bill will somehow deal with determining whether a person suffers from a “serious mental illness” and, if so, requiring appropriate mental health treatment. Though this is the impression given, this is not the case as will be seen in the detailed analysis. When the smoke screen clears, this Bill is nothing more than a firearm-confiscation law that will protect neither society nor any individual.
Texas Currently Has Two Good Mental Health Laws
Undoubtedly, Representative Moody understands that if he had created a bill that truly dealt with mental health issues, then it would be unnecessary. Current Texas law provides a method for persons suspected of suffering from serious mental illnesses to be involuntarily committed for a short evaluation period, or longer-term inpatient hospitalization, if they in fact suffer from a serious mental illness. Those provisions are set out in the Texas Health and Safety Code Sections 573 and 574.
(If you like to be able to refer to specific sections of HB 131 as you read this article, you can download a copy by clicking on the link to the Bill.)
HB131’s Grossly Over-Broad Scope
HB 131 would create an entirely new section in the Texas Code of Criminal Procedure, i.e. Section 7C. The problems with this Bill begin with the definitions that set out a wide variety of people who can request a firearms-confiscation order. For example, family members can request this order, as well as members and former members of the household. This may not appear at first blush to be overly-broad, but look at the statutory definition of the terms “family” and “household.” A “family” includes not only spouses, parents and children, but also ex-spouses and persons of any level of consanguinity (descendants from a common ancestor). This includes distant cousins! “Household” is statutorily defined to be a “unit composed of persons living together in the same dwelling, without regard to whether they are related to each other.” It includes unrelated people who formerly lived together, even years in the past. Ex-spouses, distant relatives and former roommates --- this casts a very wide net to find someone with a grudge.
Prosecuting attorneys and peace officers can also request Moody’s firearms-confiscation order on behalf of any person who would fall within the broad definitions of “family” or “member of the household.”
It should be noted that prosecutors currently have the authority under Texas law to request an emergency protective order on behalf of any person who is the victim of a violent crime. However, under Moody’s firearms-confiscation Bill, a prosecutor could request an order even if there was no pending case or charges against the gun-owner.
Unreliable Allegations and Firearms Inventories
In order to obtain a firearms-confiscation order, someone is going to have to fill out an affidavit and sign it under oath. However, one of the factors that would support confiscating all of the person’s firearms is “any behavior or conduct related to the respondents use of firearms.” The Bill does not require that such conduct the unlawful or dangerous in any manner as will be discussed later in this article. Even the lawful purchase of a firearm could be the basis of an order.
Especially troublesome is a provision in HB 131 that would require the person submitting an affidavit to create an inventory of all firearms. To say that this would be a backdoor form of firearms registration would be a gross understatement. This record in the form of an affidavit submitted to a court will not be destroyed at any time in the future. Significantly, a firearms-confiscation order would not require that any other potential weapons the seized. Knives, clubs, gasoline and numerous other items that can be used as a weapon would remain in the respondent’s home.
It is especially troubling that an affidavit can be submitted based upon “the knowledge and belief of the applicant” that the facts stated in the affidavit are true and correct. This language is commonly found in affidavits and other court documents, but it’s use here makes it problematic when trying to prosecute someone for submitting a false affidavit. This is because a layman with no expertise in mental illnesses can sign an affidavit stating that they believe the person suffers from a “serious mental illness.” After all, it is merely their “belief.”
HB131 Promotes Forum-Shopping
Quite troubling are the courts and locations where a firearms-confiscation order application can be filed. It can be filed in any district or county court, including juvenile courts. While the courts having jurisdiction to hear these matters is a bit broad, the location where an application can be filed invites problems and uncertainty. An application can be filed in the county in which the respondent lives or where the applicant lives. This is absurd! A distant cousin living in El Paso Texas, could file an application for a firearms-confiscation order in EL Paso County, against a gun-owner who lives in Houston, Harris County, Texas. It is clear that Representative Moody wants to allow people to engage in forum shopping to find a court they believe would be more likely to issue an order confiscating one’s firearms.
Ex Parte Orders
An ex parte order is one that is issued without the respondent being given notice of the hearing, without their having been present at the hearing, and without having the opportunity to present evidence in their defense. While such orders are very common in family court matters, they are less so in other courts, except for emergency protective orders issued in criminal proceedings when a person is charged with a violent crime. Ex parte orders should be disfavored and they should be issued only under extraordinary circumstances.
Under HB 131, private property would be seized without the respondent having an opportunity to be heard, and without the respondent even being taken into custody for a mental health evaluation. The respondent and the person allegedly in danger would be left together in a home with numerous other weapons. Once again, we see strong evidence that HB 131 is nothing more than a firearms-confiscation order disguised as a mental health order.
In order for a court to lawfully issue a firearms-confiscation order, the judge would have to reasonably believe that the respondent poses an immediate and present danger of causing serious bodily injury or death as a result of a serious mental illness and access to firearms. This would be a factual impossibility because it would force the judge to believe not only that the respondent suffered from a mental illness, but also that the respondent would pose a danger solely because firearms were available. In other words, the judge would have to believe that, although other weapons such as knives and club were available, the respondent would not pose a threat to anyone. No judge could honestly come to that conclusion. Unfortunately, most judges would ignore that fact and issue the order for fear of being blamed should the respondent later use a firearm to kill or injure someone.
Authority of the Court Regarding Firearms
If the judge does believe that the respondent suffers from a serious mental illness and is a danger solely because of the availability of firearms, then the court can order that the respondent be prohibited from “purchasing, owning, possessing, or controlling a firearm.” Note that the prohibition would include having an ownership interest in firearms, whether or not the respondent would have access to those firearms. This is yet another example of the absurdity of Moody’s Bill. The gun owner would have to not only give up possession of firearms he or she owns, they would have to divest themselves of any ownership rights as well. One must wonder how they would go about doing that lawfully, since they could not deliver the firearms to any potential purchaser.
The gun owner would be required to relinquish possession of all firearms only to a law enforcement agency. They would not have the option to have a friend or relative take possession of the firearms. Why? Why does Representative Moody want all firearms to be in the possession of law enforcement, rather than another responsible party such as a family member or friend?
No Requirement that Gun-Owner be Evaluated for Mental Illness
In addition to ordering the confiscation of firearms, the court may order that the respondent submit to an examination by “the local mental health authority” or a disinterested expert to determine if they suffer from a serious mental illness. As set out on the following paragraphs, there are three major problems with this provision.
First, while the court may order a mental health evaluation, it is not required to do so. Therefore, firearms can be confiscated based upon the mere unproven allegation that the gun-owner suffers from a “serious mental illness.” Firearms can be seized, yet no evaluation and diagnosis would be required.
Secondly, if the court choses to order a mental health evaluation, the court could order the respondent to be evaluated by some nebulous “disinterested expert,” rather than the statutorily-defined “local mental health authority.” A “local mental health authority” is set out in the Texas Health Safety Code Section 571.003 as follows:
“an entity to which the executive commissioner delegates the executive commissioner's authority and responsibility within a specified region for planning, policy development, coordination, including coordination with criminal justice entities, and resource development and allocation and for supervising and ensuring the provision of mental health services to persons with mental illness in the most appropriate and available setting to meet individual needs in one or more local service areas.”
There is no justification for not utilizing the official “local mental health authority,” unless there is some unstated ulterior motive.
The third problem with this provision is the fact that firearms would be confiscated by a law enforcement agency before any mental health evaluation was conducted on the respondent. As previously noted, the gun-owner need not even be taken into custody at the time the firearms were seized. Under current Texas law, a person can be taken into custody for an emergency mental health evaluation, either with or without a warrant. Any firearms in their immediate possession can be seized at that time. However, there is no authorization to seize every firearm the person owns or may possess, as would be the situation under represented Moody’s Bill.
Hearing on Protective Order
If a temporary ex parte order is issued by a court, that court must conduct a full hearing within fourteen days of the issuance of the temporary order. The respondent must be given notice of this hearing so that they can attend and present a defense.
At the hearing, the court must consider the following facts and determine whether a protective order should be issued: 1) the results of any mental health examination required under the court’s temporary order (remember, the court was not required to order such an examination); 2) any relevant medical or mental health information concerning the respondent; 3) any history of threats or acts of violence by the respondent directed at any person, regardless of the age of such threats or acts, and whether or not there’s any proof beyond mere allegation; 4) violation of any protective orders issued by any court; 5) any arrest or conviction of the respondent for stalking or cruelty to animals; 6) evidence of respondents abuse the of a controlled substance including, but not limited to, treatment for and recovery from drug abuse; 7) violation of the court’s temporary order; and 8) the lawful purchase of firearms or ammunition. Any single fact or mere allegation of one of these eight facts would be sufficient grounds to issue the order. That’s more than a little sobering since the mere lawful purchase of firearms or ammunition would justify issuing a firearms-confiscation order.
Contents of a Protective Order
If the court determines that the respondent suffers from a serious mental illness, even without any evidence or evaluation for mental illness, the court must issue an order prohibiting the respondent from “purchasing, owning, possessing, or controlling a firearm for the duration of the order.” The court must also order the respondent to “relinquish, without delay, any firearms owned by or in the actual or constructive possession or control of the person to a law enforcement agency.”
Now we get to yet another provision of the Bill that shows its insidious nature. If applicable, the court must order the respondent to surrender to the court the person’s License to Carry a Handgun issued by the state of Texas. Note the phrase “if applicable.” It simply means that if the person has a Texas license to carry a handgun, it must be surrendered to the court. In other words, the phrase means “if it exists.”
“If applicable,” the Bill would require the court to issue an order requiring the respondent to receive outpatient mental Health Services by a “local mental health authority” or expert, but after the expert performs a mental health evaluation.
There are two major problems with this provision. First, it uses the same phrase “if applicable.” In other words, if there’s any evidence of the existence of a “serious mental illness,” then the respondent would be treated, but only after an evaluation. Why on earth was this evaluation not required in the temporary order? More importantly, the firearms-confiscation part of the order is mandatory, even if there is no diagnosis of a serious mental illness or treatment for such an illness required. Again, Moody’s Bill is nothing more than a firearms-confiscation bill.
An order issued after the hearing would be effective for one year, but it could be renewed for another year.
Reports to the FBI For Inclusion in NICS
HB 131 would also require that the Texas Department of Public Safety notify the FBI of the issuance of any so-called “Extreme Risk Protection Orders.” Here we have more evidence of the insidious nature of Representative Moody’s firearms-confiscation bill. Under HB 131 it is quite possible that an order could be issued confiscating all of the person’s firearms even though there was never a diagnosis of a serious mental illness. The result of reporting this bogus order to the FBI would be a lifetime bar on ever possessing firearms or ammunition. In other words, without any evidence whatsoever of a serious mental illness, a person could lose their Second Amendment rights for life.
Conclusion
If HB 131 were truly a mental health bill, then it would be unnecessary because Texas already has two very good laws. This Bill is nothing more than a firearms-confiscation bill camouflaged in an effort to make it look like a mental health bill. Under its provisions, an order does nothing more than take away the person is firearms without ever being evaluated for mental illness or diagnosed with a “serious mental illness.”
It will do no good to contact Representative Moody to express your concern about the Bill. He knows quite well what he has written. Rather, you should contact your own Representative as well as the new Speaker of the House and tell him or her that you oppose this terrible Bill. It would be a good idea to call Gov. Abbot’s office as well. While you are at it, contact Lt. Gov. Dan Patrick’s office and let him know you oppose Sen. Rodriquez SB157 that is an identical companion bill to HB131.
Get involved and do your part to keep this terrible Bill from passing!
