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On April 13, 2015, Jim Willi provided oral and written testimony before the Texas Senate Committee on Public Affairs in support of Senate Bills 473 and 476. Senate Bill 473 changes Texas law to make it more clear that possession of Title II firearms, or NFA firearms, is legal in Texas. Senate Bill 476 provides that Chief Law Enforcement Officers (“CLEOs”) must approve ATF paperwork submitted by an individual within 15 days or provide written reasons why such paperwork will not be approved. Senate Bill 476 also provides review of a CLEO’s denial in Texas district courts with the possibility of the award of attorney’s fees to the challenger. Both Senate bills were voted on and were reported favorably without amendment by the Committee on Public Affairs the next day. The Senate bills will move to the next stage for a vote by the Senate.
Even though NFA firearms are legal in Texas, current Texas law presumes that a person in possession of such firearms is illegally is possession. This is a third degree felony. Only as a “defense to prosecution,” can the individual later prove that the NFA firearm was legally registered with the ATF. This is an important distinction, because it affects the burden of proof associated with a felony charge of possession of a prohibited weapon. As a defense to prosecution, a prosecuting attorney is not required to negate the existence of the defense. Instead, the defendant is required to present evidence to affirmatively prove that the NFA firearm was legally registered. Only then would a judge instruct a jury to even consider the defense. Senate Bill 473 changes the burden of proof so that a prosecuting attorney would be required to prove as an element of the State’s case that an individual in possession of an NFA firearm was illegally in possession. In other words, it would presume that the individual was innocent until proven guilty. This bill presents a much-needed correction to Texas law.
When an individual wants to legally purchase or manufacture an NFA firearm, Federal law requires the individual to first submit to a background check with his or her Chief Law Enforcement Officer. Only after being approved by the Chief Law Enforcement Officer can the individual then submit an application to the ATF. It is well-known in the industry that many Chief Law Enforcement Officers throughout Texas refuse to sign-off on ATF paperwork submitted to them by individuals whose reside in their jurisdiction. This creates a barrier for law-abiding Texans to be able to apply to the ATF for permission to purchase or manufacture NFA firearms. Under current Texas law, when a Chief Law Enforcement Officer refuses to approve an individual’s ATF paperwork, there is absolutely no recourse administratively or in the courts. As a result, those Texas residents are effectively barred from even requesting permission from the ATF to purchase or manufacture an NFA firearm.
A Chief Law Enforcement Officer can refuse to sign for any reason, including a personal disagreement with Texas law allowing individuals to be able to possess NFA firearms, a fear of liability if an individual later commits an offense with one of these firearms, or perhaps, just a personal dislike of that particular individual. Senate Bill 476 is common-sense legislation. It ensures accountability so that individuals who are complying with Federal law are treated fairly and justly under Texas law. It ensures that Texas law permitting legal ownership of NFA firearms is not obstructed by the personal views of law enforcement officers. It also provides law enforcement officers with immunity, so that any certification granted in good faith cannot be used against them. The passage of this bill benefits all Texas residents.