Federal law generally prohibits possession of firearms and ammunition by people who have been found by a court, board, commission, or other lawful authority to be a danger to themselves or others, or to “lack the mental capacity to contract or manage [their] own affairs,” as a result of their mental condition or illness.1 Federal law also generally prohibits people from possessing firearms if they have been involuntarily hospitalized or committed to a mental health or substance abuse treatment facility by a court, board, commission, or other lawful authority.2
No federal law, however, requires states to report the identities of these individuals when they become ineligible to possess firearms to the National Instant Criminal Background Check System (“NICS”) database, which the FBI uses to perform background checks prior to firearm transfers. As a result, state record reporting laws are critical to ensuring the accuracy and effectiveness of the background check system.
A law adopted in Texas in 2009 requires the Department of Public Safety (“Department”) to establish a rule for the submission of information to the FBI for use in NICS. The law requires the clerk of a court to prepare and submit information to the Department within 30 days whenever the court:
- Orders a person to receive inpatient mental health services;
- Acquits a person in a criminal case by reason of insanity or lack of mental responsibility;
- Commits a person determined to have mental retardation for long-term placement in a residential care facility;
- Appoints a guardian of the incapacitated adult individual, based on the determination that the person lacks the mental capacity to manage the person’s affairs;
- Determines a person is incompetent to stand trial; or
- Finds a person is entitled to relief from disabilities.3
The information that must be submitted is:
- The complete name, race, and gender of the person;
- Any known identifying number of the person, including social security number, driver’s license number, or state identification number;
- The person’s date of birth; and
- The information that causes the person to be prohibited from possessing firearms.4
If an order previously reported to the Department is reversed by an appellate court, it is the duty of the clerk of the court to notify the Department of the reversal.5
The law requires the clerk of the court to forward this information to the Department in an electronic format as prescribed by the Department, if practicable.6 The law requires the Department to establish a procedure, by a rule, for submission of this information to NICS.7
This information is “confidential,” and the Department may disseminate this information only to the extent necessary to allow the FBI to collect and maintain a list of persons prohibited from possessing firearms.8 However, the Department must grant access to this information to the person who is the subject of the information.9
The 2009 law also provides a process by which a person who has been discharged from court ordered mental health services may obtain relief from the federal firearms disability,10 and requires the Department to establish a rule for submission of this information to NICS.11
For general information on the background check process and categories of prohibited purchasers or possessors, see the Texas Background Check Procedures section and the section entitled Firearm Prohibitions in Texas .
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- Federal law, enacted in 1968, still uses archaic and offensive terminology to prohibit firearm access by people who have been “adjudicated as a mental defective.” 18 USC 922(g)(4). Federal regulations define that term to mean:
(a) A determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease
(1) Is a danger to himself or to others; or
(2) Lacks the mental capacity to contract or manage his own affairs.Federal regulation also expressly clarifies that this firearm prohibition applies to:
(1) A finding of insanity by a court in a criminal case; and
(2) Those persons found incompetent to stand trial or found not guilty by reason of lack of mental responsibility pursuant to [specified articles] of the Uniform Code of Military Justice. 27 CFR § 478.11.
- Federal law generally prohibits firearm access by people who have previously been “committed to a mental institution.” 18 USC 922(g)(4). Federal regulations define this term to mean: “A formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority. The term includes a commitment to a mental institution involuntarily. The term includes commitment for mental defectiveness or mental illness. It also includes commitments for other reasons, such as for drug use. The term does not include a person in a mental institution for observation or a voluntary admission to a mental institution.” 27 C.F.R. § 478.11.
- Tex. Gov’t Code § 411.0521(a).
- Tex. Gov’t Code § 411.0521(b).
- Tex. Gov’t Code § 411.0521(d).
- Tex. Gov’t Code § 411.0521(c).
- Tex. Gov’t Code § 411.052 (b). See 37 Tex. Admin. Code § 27.141 for the relevant rule.
- Tex. Gov’t Code § 411.052(b), (d).
- Tex. Gov’t Code § 411.052(c).
- Tex. Health & Safety Code § 574.088.
- Tex. Gov’t Code § 411.052(e).