Gun Control? In Texas?
Lawmakers consider Governor’s modest proposals to tackle gun violence in schools
"We've got to do something." So says Travis County Probate Judge Guy Herman, on a subject where Texas has become excellent at doing nothing – reducing the frequency and toll of gun violence. Since 1995, when then-Gov. George W. Bush signed the state's concealed-carry law, lawmakers, politicians, and activists have striven ever harder to out-Second-Amendment each other, and even minor regulatory moves to make Texas safer have gone nowhere.
The massacres of churchgoers in tiny Sutherland Springs and of high school kids in suburban Santa Fe have, at least for now, changed the terms of debate. "There's definitely some movement," says Herman, a veteran judge who, as part of his duties, oversees the mental health docket (e.g., involuntary commitment) for dozens of counties in addition to Travis.
That movement began under the pink dome with Gov. Greg Abbott's unveiling in late May of his "School and Firearm Safety Action Plan." While most of the 43-page document has much more to do with schools than with guns, Abbott – informed by the work of a citizen and expert task force – added a call for the Legislature to explore modifications to the state's gun laws.
In late June, the state House Committee on Criminal Jurisprudence took Abbott up on his offer with an all-day Capitol hearing focused on the two most volatile ideas floated by the governor: stronger safe storage laws to keep guns out of the hands of minors, and so-called "red flag" laws to allow, in the words of the action plan, "law enforcement, a family member, school employee, or a district attorney to file a petition seeking the removal of firearms from a potentially dangerous person only after legal due process is provided."
In theory, Texas already has both safe storage and gun surrender provisions on the books. It's a class C misdemeanor to allow a child 16 or younger access to a "readily dischargeable" firearm; that's enhanced to a class A (which could mean a year in jail) if the child hurts or kills with the gun. Abbott wants to enhance that further to a third-degree felony, raise the age limit to 18 (the Santa Fe shooter was 17), and extend the law to include both loaded and unloaded weapons.
What the law doesn't require is any proactive measures to ensure that gun owners have and use trigger locks, gun safes, separate storage for ammunition, or the like. (There is a requirement that gun dealers post a sign highlighting the existence of the law.) Former Land Commissioner Jerry Patterson, who as a state senator both authored the 1995 concealed-carry law and carried the safe-storage law (by Houston Rep. Al Edwards) in his chamber, told the House committee that the Lege felt, and he still feels, that what "different adults ... believe to be safe storage should be their decision, not the government's decision."
As for red flag laws, family violence protective orders (generally issued after a case is adjudicated) allow for the removal of firearms from those convicted. According to testimony from law enforcement and family law judges before the House committee, enforcement of these provisions is less than optimal. Dallas County is the only county in the state that has a defined protocol for getting guns out of the hands of convicted abusers, and even that was only made possible by a grant from Abbott's office in 2015, combined with funding from the county. (Harris County plans to have a similar procedure in place by the end of the year, after being delayed by Hurricane Harvey.)
There's no equivalent in Texas law regarding people who require mental health intervention, even though federal law makes it illegal for people who've been committed or are in guardianship to possess firearms. Herman, who has dealt with plenty of cases where taking the guns from a disturbed person would be a good idea, sees this as a major opportunity for Texas to tighten up its laws.
"It's not uncommon for federal prosecutors to not want to deal with these issues; they have a lot of stuff on their plate," Herman says. "They ask why we don't file in state court, which we can't do, because it's not state law. If it was, the state's attorney could come to state court, say we have evidence, and get a search warrant to enter the premises and seize weapons from people who are already violating federal law."
The need for police or prosecutors to go before a judge to invoke a red flag law, and for gun owners to have a chance in court to get the guns back – part of Abbott's insistence on "legal due process" – are bound to be part of any bill that makes it out of committee next session. Another widely cited concern is the prospect of false claims of dangerousness intended to harm a gun owner; the red flag bill filed in 2017 by Rep. Joe Moody of El Paso (the chairman of the House committee) made such claims a class A misdemeanor, which Patterson argued was not harsh enough.
Before the House committee, mental health advocates pushed back firmly on the (now reflexive) equation of "violent" and "mentally ill," and called for any development of a protective order to include provisions for treatment. They also noted that the major danger posed by firearm violence is not homicide (which is declining in Texas) but suicide (which is increasing rapidly) and asked lawmakers to strengthen suicide prevention efforts where firearms are concerned (for example, in concealed handgun classes).
Many, perhaps most, of those testifying – from Patterson to Herman to doctors and educators – noted that they were themselves gun owners and supported the Second Amendment, which in a normal political environment might tamp down the inevitable eruption of outrage were Texas actually to tighten its gun laws in any way. "There will be people who'll say [proposals] go too far," Herman says, "and those who say they don't go far enough."