Disarming Prohibited Persons in Texas

Posted on August 14, 2015

In 2013, Texas enacted a law authorizing a peace officer who takes certain mentally ill persons into custody because they pose a substantial risk of serious harm to self or others to immediately seize any firearm found in possession of the person.1

The officer who seizes the firearm is required to immediately provide the person a written copy of the receipt for the firearm and a written notice of the procedure for the return of a firearm.2 The law enforcement agency holding the firearm must then, as soon as possible, but not later than the 15th day after the date the person is taken into custody, provide written notice of the procedure for the return of a firearm to the last known address of the person’s closest immediate family member as identified by the person or reasonably identifiable by the law enforcement agency, sent by certified mail, return receipt requested.3 The written notice must state the date by which a request for the return of the firearm must be submitted to the law enforcement agency.4 The clerk of the court is required to subsequently advise the law enforcement agency, upon request, whether the person taken into custody was released.5

Not later than the 30th day after the clerk of the court informs the law enforcement agency that the person taken into custody was released, the law enforcement agency must (1)  conduct a background check of state and national criminal history record information to verify whether the person may lawfully possess a firearm under 18 U.S.C. Section 922(g); and (2)  provide written notice to the person by certified mail that the firearm may be returned to the person on verification that the person may lawfully possess the firearm.6

If the clerk of the court informs the law enforcement agency that the person taken into custody was ordered to receive inpatient mental health services, the law enforcement agency must provide written notice to the person by certified mail that the person: (1)  is prohibited from owning, possessing, or purchasing a firearm under 18 U.S.C. Section 922(g)(4); (2) may petition the court that entered the commitment order for relief from the firearms disability; and (3) may dispose of the firearm in the manner provided by Tex. Code Crim. Proc. Art. 18.191(f).7

Texas has no other law requiring the removal of firearms from persons who have become prohibited from possessing them.

  1. Tex. Health & Safety Code § 573.001(g).  Under Texas law, a peace officer may take a person into custody without a warrant if the officer: (1)  has reason to believe and does believe that (A)  the person is a person with mental illness; and (B) because of that mental illness there is a substantial risk of serious harm to the person or to others unless the person is immediately restrained; and (2) believes that there is not sufficient time to obtain a warrant before taking the person into custody. Tex. Health & Safety Code § 573.001(a). []
  2. Tex. Code Crim. Proc. Art. 18.191(a). []
  3. Tex. Code Crim. Proc. Art. 18.191(b). []
  4. Id. []
  5. Tex. Code Crim. Proc. Art. 18.191(c). []
  6. Tex. Code Crim. Proc. Art. 18.191(d). []
  7. Tex. Code Crim. Proc. Art. 18.191(e). []