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Senate Select Committee on Violence in Schools & School Security met on July 24 to hear invited and public testimony regarding interim charges related to protective order laws and “Red Flag” laws in connection with school violence prevention. Chair Larry Taylor noted that this would be the last Select Committee meeting of the interim and that the Committee report would be submitted in the first week of August. 47 witnesses provided public testimony, with nearly a 2 to 1 ratio providing testimony against “Red Flag” laws.

This report is intended to give you an overview and highlight of the discussions on the various topics the committee took up. This report is not a verbatim transcript of the hearing; it 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 Remarks

  • This is the final hearing for the committee
  • Reviewed the exact wording of the interim charge

 

Examine whether current protective order laws are sufficient or whether the merits of Extreme Risk Protective Orders, or “Red Flag” laws, should be considered for seeking a temporary removal of firearms from a person who poses an immediate danger to themselves or others, only after legal due process is provided with a burden of proof sufficient to protect Second Amendment rights guaranteed by the United States Constitution.

 

David Slayton, Texas Office of Court Administration (OCA)

  • Need to consider other protective order statutes in Texas and other states
    • Specifically noted domestic violence protective orders
    • Noted specific – Extreme Risk Protective Orders (ERPOs)– to reduce access to fire arms
  • ERPO – varies state by state
  • Some states allow family members to seek ERPOs
  • Only 1 state allows mental health physicians to request ERPOs
  • Usually require petitioner to include information related to firearms possession of the individual
  • Temporary ex parte orders are cases in which the respondent has not had the opportunity to contest the order
    • Many times, only valid for 14 days
    • Noted Maryland orders that have 3 timelines for ex parte orders
    • Most states that implement these orders for 12 months and often allow extensions given appropriate evidence of need
  • Discussed burden of proof of clear and convincing evidence
  • Should consider which type of court should hear these types of cases
    • Would reduce confusion and increase efficiency
    • Florida has not specified and has been problematic
  • Should consider if council should be appointed to the respondent
    • If so, who would pay the cost? Etc.
  • Recommendations for procedural protections: notification to the respondent, harassment petitions and reporting of false information
  • Discussed potential need for the procedures for surrendering firearms
  • Most other sates require law enforcement to immediately return the firearms at the order expiration but many also require the respondent to initiate that process with a request
  • Discussed impact on the courts
    • Connecticut has had 155 cases in 2016
    • Other states have between 34 and 155 cases per year
  • Written testimony shows cases that were contested
    • 2 challenges to state laws
    • Both were upheld and found constitutional
  • Huffman – one item in the charge is to look at current protective laws, can you speak to that, specifically in relation to access to firearms?
    • Federal law provides for certain individuals who have been involuntarily committed to mental health facilities are ineligible to purchase firearms, those with mental retardation and have been placed in long term housing, those who have been found incompetent to stand trial and those who have been acquitted because of insanity, convicted felons and those convicted of domestic violence case
    • Federal prohibition ends 5 years after release or probation
    • State laws also extends to ammunition
    • In state law is more expansive
  • Huffman – how is DPS notified of the prohibition?
    • The court offices are required to notify DPS and then DPS is required to report applicable prohibitions to the federal level
    • Some counties have automated systems
  • Huffman – the common practice is that the judge informs them that they can no longer possess a firearm?
    • That is correct, either written or orally
  • Huffman – can you speak to the mental illness prohibitions?
    • An application has to be filed by the court for involuntary commitment
    • If they are taken into protective custody, firearms can be removed from the home
  • Huffman – what are the police officer’s authority related to when they arrive at a scene?
    • Will defer that question to another witness
  • For the most part, the people that are involuntarily committed are deemed to be a danger to themselves or others
  • Huffman – how does involuntary versus voluntary commitment affect the possession of firearms?
    • Voluntary treatment is not a disqualifier for firearm possession
    • Involuntary commitment is when it becomes reportable
  • Huffman – do you have any data on voluntary versus involuntary numbers?
    • Roughly 7,000 involuntary inpatient commitment but will check those numbers
  • Huffman – which convictions disqualify possession of firearms and how to you get a protective order without a conviction?
    • At the federal level it is all related to convictions, including domestic assault
  • West – related to the magistrate, can a magistrate order firearms or ammunition to be taken?
    • That is not clear in state law
    • Dallas County has done some work with firearm confiscation
    • Should be clarified in statute
  • Huffman – in that case there would not be a search warrant, right?
    • As part of a protective order, there is nothing that says that a search warrant has to be issued
    • It would likely require other factors related to probable cause
  • Described the process of filing a family violence protective order
  • Final protective order lasts for 2 years and would be a disqualifier for firearms and ammunition
  • Huffman – does that only last two years for the disqualifier or is it like felonies where it is longer?
    • Believe it is only for 2 years but will verify and get back to the committee

 

Shannon Edmonds, Texas District and County Attorney’s Association

  • State and federal law are different in a few areas
    • If convicted of family violence misdemeanor, after the 5-year prohibition you may possess a firearm under the penal code
    • If there was no criminal conviction, then you can possess the firearm as soon as the protective order is lifted
  • Protective orders allow the protected persons to call police to the scene before something happens
  • Huffman – is there anything we can do to make the law clearer?
    • A judge can order a person to not possess a firearm, but we cannot enforce the surrender and confiscation very well
    • All states struggle to enforce the confiscation and surrender of firearms
    • Do not have something in the family violence area that speaks to giving the weapons to another person who is eligible
  • Huffman – noted that there are somethings that are different in the health and safety code versus the penal code. There is a process to claim the weapons after the disability has been removed?
    • That is correct
    • Slayton – it would be good to require them to go to court on domestic violence class c so a judge could clearly explain the law to them
  • West – a lot of the class c’s get deferred, correct?
    • That is correct

 

Chris Ponder, Harris County District Attorney’s Office

  • There is statutory authority for an officer to seize a firearm at the time of arrest or commitment
  • The initial detention period of 48 hours, the hospital makes a determination on if it is needed to hold them longer, if so an order of protective custody is required
  • Discussed the hearing process after the protective custody petition
  • Very few individuals are actually committed statewide for inpatient commitment
    • It is only at that point that the firearm prohibition takes effect
  • West – who has the burden and what is it in the restoration of rights?
    • The state statute is silent on that, it is ultimately up to the judge to make the determination
    • There is very little law on that statute
  • Huffman – under current law, do you have any recommendations?
    • Do not have any specific recommendations
  • Rodriguez – are the risk protective orders sufficient to address those individuals who have not acted or been subjected to the mental health system?
    • Slaton – the process is trying to predict future behavior, that is up to the legislators to address
  • Rodriguez – do you think the current law addresses the mass shooting instances in schools?
    • Edmonds – current law addresses family violence and does not really speak to neighbor on neighbor instances or workplace violence situations
    • Edmonds – do not know if that loophole is significant or if a protective order would have prevented a school shooting
    • Edmonds – noted that many of the actors in these situations are not by definition “mentally ill”

 

Dana Haff, Moms Demand Action

  • Working for public safety measures that protect the 2nd amendment
  • Supports Red Flag Laws
  • Have had personal experience with family violence
  • Red flag laws are proven to keep guns out of the hands of dangerous people
  • Red flags help to reduce suicidal attempts
  • Discussed impacts of red flag laws on temporary crisis situations
  • Can be an effective tool to help prevent domestic violence, school shootings and suicide
  • West – do you have models that we should take into consideration?
    • Will provide that information to the committee

 

Gary Wells, Texas Rifle Association

  • Clear that mental illness does not cause mass shootings
  • Any form of detention or restraining orders will not prevent mass shooting
  • The problem includes temporary psychotic breakdown
  • ERPOs fail to address and treat the persons immediate condition
  • There is no gap in current law
  • Reviewed current law for detention due to suspected mental illness
  • West – is your organization opposed to red flag laws or is there any middle ground?
    • No, there is no need for red flag laws
  • Furthered reviewed current state law

 

Gyl Switzer, Texas Gun Sense

  • Described Texas Gun Sense
  • Have supported ERPOs for many years
  • Written testimony includes many statistics and laws from other states
  • Noted fed flag laws are a civil process not a criminal process which includes an appeal process and the ability to get the firearms back
  • Domestic violence orders are in every state and have held up
  • 13 states have some form of ERPO
  • The petition should require indication of firearm possession
  • Many states allow the voluntary release of firearms
  • Discussed potential qualifiers for ERPOs (cruelty to animals, domestic violence, etc.)
  • Recommends against using psychiatric diagnoses in the protective order
  • Reviewed instances of ERPOs in other states
  • Red flag laws can help fill the gaps in current law

 

Edwin Walker, Attorney

  • Does not believe a new protective order is the appropriate solution
  • Current protective orders are sufficient and follow due process
  • Previous red flag legislation did not sufficiently address second amendment issues, clearly define terms like “dangerous”
  • Concerned with use for ending disruptive behavior but not specifically criminal activity
  • Penal code already allows for detainment of a dangerous person and the confiscation of their firearms
  • Does not support any legislation that allows for confiscation of firearms without a conviction
  • Need to look at current law to solve this

 

Public Testimony

 

Joseph Mire, Self

  • Red flag laws would reduce mass shootings

 

John Bolgiano, Self

  • Against red flag laws
  • Would not do anything to prevent the individual from using a different form of violence
  • If they are too dangerous to have a firearm they are too dangerous to be on the streets
  • Amendments to current health and safety code would be better suited to help solve the problem

 

Donna Schmidt, Self

  • Supports red flag laws
  • Has proven effective in Indiana and Connecticut
  • Recent FBI Study validate need for tools like red flag laws

 

Mark Tippetts, Libertarian Candidate for Governor of Texas

  • Supports gun safety
  • Does not support red flag laws
  • Sees this as infringements to constitutional rights

 

Jim Barnes, Self

  • Opposes taking away firearms with no crime being committed
  • Concerned with lack of due process
  • Other states laws do not exemplify due process

 

David Carter, Self

  • Should be looking at securing the schools by searching each red flagged student
  • Access to classrooms should be considered
  • Armed staff should be considered

 

Terry Holcomb, Republican Party of Texas

  • Believes there are many things in law currently that address suicide
  • Concerned with where these (laws will go (into thought police, etc.)
  • Need to be very careful in expanding protective orders into what people may do
  • West – you have no objections to confiscating firearms in domestic violence situations?
    • Cannot speak to that today
  • Rodriguez – have spoken a lot about mental health, it is important to keep that in mind that it is not only mental health issues that cause this kind of problem

 

Christopher Lewis, Self

  • Opposed to red flag laws

 

Jerry Patterson, Former State Senator

  • Believes that many gun control proposals will not make much of a difference in the overall situation
  • Have had family violence orders and mental illness protective orders and have not had any complaints related to those
  • Believes that school violence protective orders can be operated the same way
  • ERPOs needs to have narrow applicability, needs to have definitive dates associated

 

Tracy Everly, Texas Council on Family Violence

  • Supports red flag laws

 

Alma Lynch, Self

  • Need to be sure not to work against 2nd amendment rights
  • Need to not punish the law-abiding citizens

 

Kimberly Edwards, Texas Association of Pediatrics

  • Firearm death is high cause of death in youth
  • Decreasing children’s access to firearms
  • Current child access prevention laws should be amended and expanded
  • Should promote safe storage campaign

 

Rachel Malone, Gun Owners of America

  • Opposes red flag laws
  • No probable cause is necessary to remove constitutional rights
  • End gun free zones to better defend against gun violence

 

Joe Murphy, Self

  • Does not support red flag laws
  • Concerned about loss of constitutional rights

 

Dan Gast, Self

  • Opposes red flag laws to solve school violence
  • Shooters all have shown different types if any of preemptive signs

 

Richard Baker, Self

  • Laws need to ensure that children cannot access firearms
  • Red flag laws need to allow for risk assessment of access to guns by caregivers

 

John De La Garza, Self

  • Victim of false allegation which led to loss of access to firearms
  • Opposes red flag laws
  • West – curious about the burden you had financially?
    • Monthly bond fees and attorney fees
  • West – you felt the burden was on you and not the state?
    • Not in my specific case but in many others that has seen

 

Tom Glass, Self

  • Opposes red flag laws
  • Believes this will clog civil courts
  • Believes they would be inconsistent

 

Alice Tripp, Texas State Rifle Association

  • Opposes red flag laws
  • Does not support changes to existing law

 

Ed Scruggs, Texas Gun Sense

  • Supports red flag laws
  • Cited specific examples of instances which could have been curbed by red flag laws
  • Do not believe the laws are adequate

 

Tara Mica, National Rifle Association

  • Does not support red flag laws
  • Hancock – noted that all of the statistics referenced in testimony should be provided for further clarification
  • Lucio – requested additional information on reforms to current law to better solve the issue
    • Noted Texas school safety center as a resource as well as NRA’s School Shield program

 

Rebecca De Feliz, Self

  • Described personal experience with gun violence
  • Supports red flag laws

 

John Greer, Self

  • Opposes red flag laws
  • Opposes any legislation that would subvert due process

 

  1. Allen Miller, Libertarian Party of Texas
  • Concerned with going around due process
  • Opposes red flag laws

 

Tony Seale, Lone Star Gun Rights

  • Opposes red flag laws
  • Should remove all gun free zones

 

Anthony Duke, Self

  • Opposes red flag laws
  • Violates basic essential liberties

 

Daniella Salazar, Children’s Defense Fund of Texas

  • Supports red flag laws

 

Sheryl Walker, Self

  • Does not support red flag laws

 

Joseph Robert Walker, Self

  • Does not support red flag laws

 

Aimee Mobley, League of Women Voters

  • Supports red flag law
  • Described personal experience

 

Megan Bates, Self

  • Opposes red flag laws
  • Concerned with retaliation

 

Rick Briscoe, Open Carry Texas

  • Opposes red flag laws
  • Concerned with second amendment rights

 

Susan Dansler, Self

  • Opposes red flag laws
  • Concerned with revenge

 

Paul Luker, Self

  • Supports any legislation that can lead to higher school safety
  • Need to create a comprehensive multi-tier plan
  • Provided recommendations in written testimony
  • School need guidance from the state as to what safety and security should look like

 

Amos Postell, Lone Star Gun Rights

  • Described personal experience with temporary restraining orders
  • Concerned with retaliation
  • Opposes red flag laws

 

Columba Wilson, Self

  • Concerned with mental illness and trauma

 

Amy Hedke, Self

  • Concerned with the unintended consequences
  • Does not support red flag laws
  • Supports passing constitutional carry as a better deterrent to school violence

 

Jennifer Cooper, Self

  • Children attend Santa Fe High School
  • Does not believe that the shooting was a gun control issue
  • Should better secure schools
  • Does not support red flag laws
  • Lucio – thanked the witness for testifying

 

Ruth York, Self

  • Opposes red flag laws
  • Concerned with exploitation of the system

 

Alissa Sughrue, National Alliance on Mental Illness

  • Supports red flag laws
  • Supports safe storage best practices

 

Gabriel Nela, Self

  • Does not support red flag laws
  • Believes there are other better methods of identifying and reacting to students in a fragile mental state

 

Gail Galloway Sampley, Self

  • Former teacher
  • The only person that should carry a weapon on campus is a licensed peace officer
  • Need to treat causes not react to effects
  • Need to hire additional staff that work on the mental well being

 

Phyllis Greer, Self

  • Legislation is not the answer to the problem
  • Needs to do away with gun free zones
  • Does not support red flag laws

 

Robert Novak, Self

  • Does not support red flag laws

 

Kimberly Engle, Self

  • Does not support red flag laws
  • Concerned with freedoms being taken away

 

Don Rutledge, Self

  • Opposes red flag laws

 

Leslie Urban, Self

  • Described personal experiences with warnings to police about a dangerous person that did not have any recourse while still having access to firearms
  • Supports red flag laws

 

Closing Remarks

  • This was the 4th and final hearing for the Select Committee
  • Committee report will be submitted in the first week of August