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The Senate Select Committee on Mass Violence Prevention and Community Safety met on September 26 to discuss the personal and community impact of the mass shootings in Texas, determine the effectiveness of current laws used for reporting suspicious behavior, and monitor the implementation of Governor Greg Abbott’s eight executive orders.

This report is intended to give you an overview and highlight of the discussions on the various topics the committee took up. It is not a verbatim transcript of the hearing, but is based upon what was audible or understandable to the observer and the desire to get details out as quickly as possible with few errors or omissions.

 

Opening Comments

  • Senators thanked the Governor and Lieutenant Governor for actions & leadership
  • Chair Huffman: The Governor issued 8 executive orders that will act as a first step to addressing these issues
  • Although this committee cannot pass legislation, we intend to make recommendations to the legislature.
  • Jane Nelson: We need to discuss mental health and not stigmatize it in these discussions. Having a mental illness alone does not make a person commit a crime.
  • Jose Rodriguez: The El Paso shooting was a hate crime carried out solely because El Paso is a predominantly Hispanic community. There are data driven, common sense solutions to these issues: universal background checks and risk protective orders, for example.
  • Donna Campbell: The challenge before the committee is to determine what can be changed and what must be guarded.
  • Charles Perry: Concerning mental health, I hope we can identify the root cause. Before we have a complete overhaul, we need to be very careful.

 

Texas Department of Public Safety

Steve McCraw, Texas Department of Public Safety

Skylor Hearn, Texas Department of Public Safety

  • Over half of the mass casualty attacks have occurred in the past three years.
  • The killers that carry out these shootings follow varied ideologies.
  • Often, they are self-radicalized, lone actors.
  • The killers will research past mass casualty events.
  • They have access to readily available weapons and seek out soft targets.
  • Whether international or domestic terror, the result is a mass casualty attack.
  • I will go over the executive orders issued by the Governor.
  • Order No. 1 Within thirty days of this order, the Texas Department of Public Safety shall develop standardized intake questions that can be used by all Texas law-enforcement agencies to better identify whether a person calling the agency has information that should be reported to the Texas Suspicious Activity Reporting Network.
    • For order one, the concern was whether we were asking the right questions.
    • We have developed a set of questions based on research and best practices.
    • We are seeking feedback from stakeholders and local law enforcement.
    • Huffman: Is this for every law enforcement agency in Texas?
      • That is why stakeholder input is so important.
    • Huffman: How are you enforcing this?
      • I cannot speak to enforcement, but measurements concerning where we were and where we are now are valuable.
    • Order No. 2 Within thirty days of this order, the Department of Public Safety shall develop clear guidance, based on the appropriate legal standard, for when and how Texas law-enforcement agencies should submit Suspicious Activity Reports.
      • The second order concerns proper guidelines.
      • Public safety and fusion centers follow the DOJ guidelines concerning privacy and civil liberties.
      • Fundamentally, behavior must be observable.
    • Order No. 3Within sixty days of this order, the Texas Commission on Law Enforcement shall make training available to educate all law-enforcement officers regarding the standards that will be developed pursuant to Order No. 1 and Order No. 2.
    • Order No. 4The Department of Public Safety shall create and conduct an initiative to raise public awareness and understanding of how Suspicious Activity Reports are used by law-enforcement agencies to identify potential mass shooters or terroristic threats, so that the general public and friends, family members, coworkers, neighbors, and classmates will be more likely to report information about potential gunmen.
      • Huffman: Are we giving more information to law enforcement concerning how they should characterize suspicious activity?
        • We adopted the fundamental standards that DHS has set up.
        • The term, “reasonably indicates suspicious behavior”, is good to use.
        • It may not rise to probable cause, but there are indicators.
      • Huffman: Can we train law enforcement to spot these indicators?
        • For example, we train troopers to spot indicators of sex trafficking during a patrol stop.
      • Huffman: The FBI revealed in the El Paso shooting that the mother had some concerns.
      • Huffman: Is that the type of information that would qualify?
        • As reported by the media it would be.
        • However, as it turns out, maybe not.
        • Our statewide system is integrated with the FBI’s for data.
      • Perry: Are those questions that spot the indicators being developed with mental health professionals?
      • Perry: The shootings post-2009 seem to happen within 30 days of one another and then there’s a brief respite. It’s important we don’t promote the notoriety the individuals are seeking. If you haven’t noticed that pattern you should make note of it.
        • There is no question that copycats do exist.
        • We know this from our research.
      • Perry: Once a suspicious activity report is made, do local law enforcement handle it?
        • We always involve local.
        • We will support local law enforcement but will act as their partners – not parents.
      • Campbell: Does the reporting of the shooter’s name or manifesto act as a catalyst for shooters?
        • Some people in the behavioral community believe that is one of many factors.
      • Nelson: Tell me about fusion centers.
        • There is a total of eight, one is designated as the state fusion center by the Governor.
        • The other seven are regionally designated.
      • Nelson: Is there anything we need to be doing that will help better connect all entities?
        • Getting more people to report will help.
      • Nelson: Were any of the individuals that carried out these shootings on DPS’ radar prior to the event?
        • There were indicators, but they were unreported.
      • Rodriguez: The act of buying an assault weapon might not normally raise questions.
      • Rodriguez: I assume the standardized questions will be developed to better target the potential shooters?
        • We are working with behavioral science and other professions to ensure we have meaningful questions.
      • Rodriguez: When you develop this questionnaire, is it voluntary for local law enforcement?
        • We are providing trainings on the questions to ask.
      • Perry: If you are a licensed dealer, but not a licensed manufacturer who is responsible?
        • ATF would be able to answer this.
      • Perry: Can a casual civilian without a license purchase an upper?
        • ATF would be able to answer this.
      • Whitmire: El Paso’s shooter’s mother’s call was not an indicator to the police, but his internet history suggested a red flag should be there. Under current law, what can law enforcement do?
        • If there are no threats or violation of law, you cannot charge the individual.
      • Whitmire: This is the issue. Bizarre lifestyle is not against the law. One of the shooters was out shooting wildlife. What kind of restraint can you put upon that person?
        • If someone has not committed a crime, you cannot intervene.
      • Whitmire: Why do we do not have the tools to intervene here?
        • We can approach them, but if we do not get a voluntary commitment then we have nothing.
      • Nelson: Not willing to sacrifice 2nd Amendment rights in order to prevent evil. We have a societal problem. I wish there was a law we could pass to solve this, but there is no law we can pass that will prevent evil from going out and killing people. I don’t know what the answers are, it’s going to be hard.
      • Whitmire: If a young man is wearing a trench coat to school in 95-degree weather and his social media is frightening, we ought to have the authority to restrain him.
      • Nelson: We passed a lot of legislation and pumped a lot of money into that child to help him before he gets to that point.
      • Whitmire: I’m looking forward to discussing preventing that child from possessing a gun.
        • Nowadays we have an obligation to follow up on threats.
      • Perry- Are you aware of how HHS Code 573 gives law enforcement temporary ability to reclaim guns has been used?
      • Huffman: This is not a red flag law. I’m not sure how DPS would use it.
      • Rodriguez: Does DPS keep track of instances of domestic terrorism?
        • We participate in joint task force and share statistics in that regard.
      • Zaffirini: How does DPS work with other law enforcement?
        • We work with and support our local partners throughout the state.
      • Zaffirini: Does DPS work with them on investigations?
        • We work with them immediately.
        • In Santa Fe, we had three troopers on the scene immediately. One shot at the suspect.
        • We also aid in the investigation.
      • Zaffirini: How did DPS help in Sutherland Springs?
        • Sherriff asked us to take a lead role.
        • That means it was still his case, but we provided a lot more support.
        • We brought in rangers, troopers, special agents, and analysts.
      • Order No. 5 The Department of Public Safety shall work with the Texas Education Agency and the Texas Higher Education Coordinating Board on ways to better inform schools, students, staff, and families about the importance of Suspicious Activity Reports and how to initiate that process.
        • We are working with TEA.
      • Order No. 6The Department of Public Safety shall work with local law enforcement, mental-health professionals, school districts, and others to create multidisciplinary threat assessment teams for each of its regions, and when appropriate shall coordinate with federal partners.
        • We are looking to hire a psychologist.
      • Order No. 7 The Department of Public Safety, as well as the Office of the Governor, shall use all available resources to increase staff at all fusion centers in Texas for the purpose of better collecting and responding to Suspicious Activity Reports, and better monitoring and analyzing social media and other online forums, for potential threats.
        • This goes back to fusion centers.
      • The problem is preempting threats.
        • Huffman: Do you have the funding you need for that?
          • We have identified the funding.
        • Rodriguez: Are you funding additional personnel? Do you have the capacity to do all of this monitoring?
          • Have identified the cost to set up this section.
          • We have diverted existing resources to set it up immediately.
        • Nelson: What is the exact amount of this identified cost?
          • $58 million for 6 multi-disciplinary threat teams, 24 additional special agents for the Joint Terrorism Task Force, 54 additional analysts, and we are figuring out the psychologist numbers.
        • Whitmire: What are the other expenses to make 58 million?
          • There are 151 total FTEs, I just highlighted the agents and analysts.
        • Zaffrini: What additional tools do you need?
          • We want to work with social media companies to leverage their capabilities to share threat to life information.
        • Zaffrini: What can the committee do?
          • We have the tools in place.
          • We have already changed our doctrine concerning response.
          • We do a good job identifying foreign threats, but not so great domestically.
        • Zaffrini: Are there any laws that they should look at as a committee?
          • FBI changed their rules concerning the federal fugitive from justice definition.
        • Zaffrini: How are law enforcement trained to deal with protestors who are wearing masks or other persons present carrying firearms?
          • That is a challenge.
          • On Capitol grounds, firearms and masks are not allowed.
          • Other venues are different.
        • Zaffirini: What do you believe the committee should do in addressing the charges?
          • Prevention is key.
        • Perry: Does the law prevent you, based on the mom’s call, from going into social media and locating the manifest?
        • Perry: That ought to be automatic.
          • We hope to be able to work with social media and get easier, quicker access.
        • Perry: FBI made the point that they cannot follow up on all leads they receive per day. Based on the FBI statements, your 151 FTEs are just a drop in the bucket.
        • Rodriguez: Does it make sense for Texas to be a ‘point of contact state’?
          • I don’t think so.
        • Nelson: Have you explored how artificial intelligence can help with the workload?
          • The experts in that are the private sector.
        • Nelson: Our fusion centers have not looked at incorporating artificial intelligence?
          • It’s easy to say that but implementing the AI to cover databases is difficult.

 

Vincent Giardino, Assistant District Attorney Tarrant County

  • There is not a lot of overlap with Texas and federal law.
  • If you are not allowed to own a firearm in Texas, it is rare that it is ever a lifetime prohibition.
  • Often, that prohibition period is only five years.
  • In Texas, someone convicted of a felony includes someone who has served on probation or has served their prison sentence – they are not allowed to possess a firearm under state law.
  • Five years after being released from probation or having served prison time, they can possess a firearm at home.
  • Class A assault on a family member also has a five-year waiting period pending end of probation or prison time served before those convicted can possess a firearm at home.
  • Class C family violence, which may be offensive touching without bodily injury, has no firearm prohibition.
  • For protective orders, the prohibition on firearm ownership is for the duration of the order.
  • At the time someone is committing another offense while possessing a firearm, they are not allowed to have a handgun in their car.
  • While someone is on bond, they are not allowed to possess a firearm.
  • Huffman: State law does not prohibit a Class C offender from possessing a firearm, but federal law would?
  • Huffman: Would the Class C offender be able to pass a background check?
    • Erica Benites Giese, US District Attorney West Texas: Under 922 they would not pass a background check if it was a domestic violence conviction.
  • Senator Perry suggested looking at emergency detention numbers, out of 3,500 per year, about 75% of them would be initiated by police officers who found someone to be a danger to themselves or others.
  • Campbell: If someone received a protection order, but they already have a handgun, what do they do?
    • Certain counties have tried to establish places to surrender them temporarily.
    • They can be given to other people – but there is no way to track it.
    • This instance has to be judge driven, there is no state action for that.
  • Campbell: Documented criminal gang members can still get a license to carry?
    • Until they get a conviction that bars them from carrying, yes.
  • Nelson: What’s the penalty for these?
    • If within the five years they are caught with a firearm, it would be a new third-degree felony.
    • Unlawfully carrying a weapon, unless it is a felon, is a Class A misdemeanor.
  • Zaffirini: There are no penalties for someone who lies on a background check?
    • I have never seen one filed, but it might be doable under the penal code.
  • Zaffirini: Are there any state laws we should pass to mirror federal laws in this area?
    • I am interested to see what our state leadership has for us.
  • Zaffirini: If a criminal case against a defendant is dropped simply because that person is determined to be incompetent to stand trial, what procedures are followed to report that incident to the National Instant Criminal Background Check System (NICS)?
    • The District Attorney does not cover this area.
    • Slayton: If someone is incompetent to stand trial, that is a disqualifier for owning a firearm. Clerks are responsible for reporting that information to DPS who then reports it to NICS.
  • Rodriguez: You say that’s a tricky situation because the judge lets a person know they need to surrender their firearm, but there is no state law to enforce that?
  • Rodriguez: Wouldn’t you say we need to look at this and make a requirement so that someone follows through on the judge’s order to retrieve the weapon?
    • Half of our murders in Tarrant county occur from intimate partner violence.
    • In all the violent crimes I have prosecuted, there are reported and unreported instances of domestic violence in their past.
    • One of the more successful programs existed in El Paso wherein the number of guns was documented and monitored.
    • Giese: On the federal side we do not generally have protective orders, however if someone is given a bond for a criminal offense the judge orders those weapons be turned over to someone who is not prohibited – pretrial services are sent to the offenders house to verify that.
    • Slayton: Dallas, Travis, Bexar, and El Paso have attempted surrender programs. They are of limited utility because there is no explicit authority under law to do so. They would appreciate that being explicit in law.
  • Taylor: Criminal street gang members can own a firearm?
    • The prohibition is against possessing it in a car or boat they are driving.
    • They may possess it walking to the car, in their house, etc.
    • If they have not committed a crime barring them from possessing a firearm.
  • Taylor: What is the prohibition saying?
    • If they have a concealed handgun license, they can keep it concealed.
    • If they have it in the car, that is prohibited.
  • Perry: What is the federal penalty for lying on a background check?
    • Up to 10 years.
  • Perry: Is it true that less than 1% of those who lie on a background check are caught?
  • Perry: Do you have a statistic on gang members that are LTCs with convictions?
    • I do not have statistics, but I work closely with the gang unit in my office and can get you statistics later.
    • Giese: I have not seen gang members with LTCs in my time as a prosecutor.
  • Zaffirini: Do you have any federal laws that should be mirrored in state?
    • Giese: I don’t know if the state has a prohibited person statute concerning drug users. If we could not prohibit a person based on gang affiliation, we would ask them if they are drug users.
  • Zaffirini: Do you have any data on cases that have fallen through the cracks?
    • Giese: No.
    • Giardino: There are cases that were not picked up federally that we could do nothing about on the state level.
  • Zaffirini: Is there a process through which a person who becomes ineligible to hold a firearm may sell that firearm to a licensed dealer?
    • That may be helpful for the person trying to sell the gun.
  • Campbell: Can you speak on red flag laws?
    • I know of many cases where an individual bringing notice of suspicious behavior has helped prevent tragedies.
  • Nelson: How do we pursue red flag laws without interfering in due process?
    • Giese: The federal government has many resources, but they are not unlimited.
    • In my experience, we have followed through and prevented instances during my time at the attorney’s office.
  • Nelson: I hope there are ways to get where we want to go without violating due process.
    • Giese: In one case, we had someone threatening a mass violence attack.
    • This person was under civil psychiatric care.
    • The doctors claimed he was not a threat now, but in the future and would not hold him in the facility.
  • Perry: Do you believe the tools exist today to keep guns away from people who should not have them?
    • Giese: We lack in funding to place ADAs and imbed them at US Attorney’s offices.
  • Rodriguez: A red flag law counts as due process correct?
  • Rodriguez: It’s not an easy thing to obtain an extreme risk protective order.
  • Huffman: Under current law, what is the burden of proof for those protective orders?
    • I do not believe a protective order is clear and convincing.
  • Whitmire: It is disturbing to hear prosecutors talk about real cases where they didn’t want someone to have a gun, but there was no way to charge them. Would you have used a statute that said, “he hasn’t violated a law, but doesn’t need a gun”?
    • Giese: Never in a retaliatory way. If it was a community safety issue, then of course it would have been a consideration.
  • Whitmire: It’s not against the law to be a gang member.
  • Perry: We have acknowledged that if you’re a gang member that does not mean you’ve committed a crime. Also, we have said that if we had profiled an individual with a trench coat then we might have stopped a shooter before he committed his crime. Lastly, there was a mom who called in with a fear for her son and there was hesitancy to follow up. That hesitancy is due to our acknowledgement of our civil liberties. Relationships and awareness are key to prevention.

 

David Slayton, Texas Office of Court Administration

  • Courts play a role in reporting this information to state databases.
  • There are multiple parties involved in reporting this information.
  • Arresting information is reported by law enforcement, conviction information is reported by clerks, parole information is reported by TDCJ.
  • Law enforcement must report this information within 7 days of arrest, prosecutors and clerks must report the information to DPS within 30 days of the date of receipt.
  • Mental health disqualifiers are things like civilly committed to in-patient mental health treatment, the person has received an appointed guardian, etc.
  • In FY18 there were over 47,000 applications filed for involuntary mental health commitments.
    • 44,000 orders for custody.
    • The significant majority of these were released before the final hearing.
    • Over 7,000 people were involuntarily committed to treatment.
  • Texas has been recognized at the federal level for our efforts to increase mental health reporting.
  • Magistrate’s protective orders protect the victim short term.
  • Ex Parte protective orders are entered by a judge without a hearing – these are temporary.
  • Full protective orders were covered earlier.
  • Clerks are required to enter protective orders into the DPS system within one business day of issuance.
  • Law enforcement must upload that information within 3 days.
  • There is inconsistency with state law concerning similar conduct
  • There is no specific statute that gives judges the authority to order the surrender of a firearm.
  • SB 325 dealt with a protective order registry – rather than having to go to each county, they will be held in a single database.
  • HB 328 dealt with family violence Class C cases – this bill requires the person to plea in person and receive the proper notice that they can no longer possess a firearm.
  • SB 1804, which was vetoed, concerned access to domestic violence bond conditions – this bill was vetoed due to a House amendment, not because of the law enforcement component.
  • There are not standardized forms for orders, but there ought to be.
  • There is no ability for individuals to verify that orders have been uploaded to NICS – there ought to be.
  • There is a continued need for data entry in this process.
  • Zaffirini: What is the compliance rate with reporting requirements?
    • DPS says the compliance is good and most clerks are meeting the time frame.
  • Zaffirini: Would appropriations cover the case management system?
  • Zaffirini: Regarding the lack of standardized orders, do we need legislation for that?
    • There could be legislation, or it could be done on its own.
    • We are already looking at it.
  • Zaffirini: Will the appropriation cover the expense of the forms, orders, and training you recommend?
    • There is no appropriation for the forms and orders, that is a part of our normal process.
    • There is no appropriation for training – it is a grant funded position under review by the Governor’s office.
    • We would like that to be a permanently funded position.
  • Nelson: Are mental health commitments increasing?
    • That is one of the fastest growing case types we have in the state.
    • I will get you the chart.
  • Nelson: Are there additional tools the court needs to help prevent a domestic violence offender from becoming a mass violence offender?
    • Increased training for judges, prosecutors, clerks, law enforcement, etc. to identify domestic violence and take proper action.
    • There are parts of the state that have not filed protective orders in years – that is very unusual.
    • I think legislation to give judges the authority to require the surrender of a firearm would be helpful in these situations.
  • Perry: Children of family members involved in domestic violence go on to become those who commit family violence. If we are looking for family violence in mass shooters, we should monitor people in those households.
  • Perry: A local jurisdiction has so many days to upload their data, correct?
    • Yes, when NICS does the queries it checks if there is a disqualifier.
  • Perry: Why is there a delay from local to DPS getting it to NICS? With today’s technology, it ought to be instant.
    • Court case management technology is a local expenditure.
    • At last count, there are nine court offices that have nothing but paper.
  • Perry: Information required to give DPS is standardized. It does not require customized data systems. There is no excuse for county and city officials not to get that information in real time.
    • Funding was provided by the legislature to provide real time reporting in counties.
  • Perry: There is no requirement that they use the real time system which we funded?
    • That is correct.
  • Campbell: Is there a correlation between certain types of domestic violence and carrying out mass violence?
    • The grant funded position on our staff will get that information to you.

 

Sonja Gaines, health and Human Services Commission

  • Because of your work this past session, we have nearly eliminated our waitlist and can provide immediate access to services.
  • We have expanded access to in-patient services across the state.
  • Statistically, less than 5% of violence occurrences happen with someone who has a mental health condition.
  • Whitmire: Is it possible that those beyond the 5% have not been diagnosed with a mental health condition?
    • Yes, but when we look at the offenders, we find no history or interaction with mental health professionals.
    • Sometimes there are people who do bad things.
  • Huffman: We must remove the stigma from mental disability.
  • Taylor: In many cases, these are not mentally ill but emotionally disturbed people.
  • Whitmire: I imagine there remain many people who go undiagnosed.
    • We have many rural areas in which people can become isolated and not get services.
    • However, in the past decade we have done a lot of things to improve the situation for rural areas.
    • We have tremendous partnerships between law enforcement and local mental health authorities.
    • We should take pause and credit for the advancements we are doing.
  • Nelson: We need more mental health professionals.
  • Campbell: Is there data on the intake of violence in media and carrying out acts of violence?
    • Social media has a huge impact on our children today.
  • Campbell: I personally think its poisoning the minds of our children.
  • Rodriguez: Do you, as an agency, determine how to characterize a person with mental health issues that may lead to a shooting?
    • SAMHSA, the Substance Abuse and Mental Health Services Administration, looks at these points on a national level.
    • We are constantly assessing risk factors related to violence.
  • Zaffirini: Could you tell us how the agency interacts with law enforcement past a mass violence incident?
    • Our interaction with police is not just when a mass violence occurs.
    • Many local mental health authorities have critical incident response teams made up of mental health professionals and law enforcement.
  • Zaffirini: If there is an incident, what does your agency do?
    • Chance Freeman, HHSC: Within 24-48 hours in Midland and El Paso we deployed and found what services were available to victims and first responders, their families, and the community in general.
  • Zaffirini: What about Sutherland Springs?
    • We did not deploy at that time, but we worked closely with our local mental health authority there.
    • As soon as these events happen, I’m speaking with all relevant points of contact to begin coordination and strategic planning.
    • We don’t want only state services to come in and create a vacuum by leaving – we want to work with local services.
  • Perry: Is it fair to say the mind is a mystery? We don’t understand the spiritual state, mental state, physical, etc. Can you identify something that is tangible in a mind that is a problem we can identify in the system before it is a problem in mass violence?
    • All of these incidents we are discussing had early signs.
    • Usually the sign is made known to those closest to the individual.
    • It is not unusual for us to get a call from a neighbor who saw something odd.
    • When there is a cry for help, we need the resources to respond.
    • Not all of our crisis response teams are fully funded across the state.
    • But where we have a robust team, the response is pretty good.
  • Rodriguez: We’ve had shootings in mosques, in synagogues, in El Paso, etc. It’s hate and its racism.
    • You are correct, some of these cannot be categorized in mental illness.