TEXAS STATE COUNCIL OF DEFENSE | The Handbook of Texas Online| Texas State Historical Association (TSHA)
TEXAS STATE COUNCIL OF DEFENSE. The Texas State Council of Defense, a branch of the National Council of Defense, established on August 29, 1916, resulted from a request of Secretary of War Newton D. Baker to Governor James E. Ferguson on April 9, 1917, to have a state council formed to meet the national emergency resulting from World War I. After the declaration of war, the need of a central Washington organization to be a clearinghouse between the states resulted in the group called the Section on Cooperation between the States, which called a conference in Washington in May 1917 to formulate plans for organization of state councils. The Texas State Council, composed of thirty-eight members appointed by Governor Ferguson, met first in Dallas on May 10, 1917. Given legal status by the Thirty-fifth Legislature on May 14, 1917, its final organization was completed when O. E. Dunlap was made chairman, Thomas H. Ballqv, vice chairman, J. F. Carl secretary, and Royal A. Ferris, treasurer. State council meetings were held in Dallas, Austin, San Antonio, and Galveston. The council placed at the disposal of the nation the entire resources of the state, centralized and coordinated state war work, organized and directed local councils, and sponsored independent state defense activities. It worked through ten committees: finance, publicity, legal, transportation, coordination, sanitation and medicine, labor, food supply and conservation, military affairs, and state protection. With over 240 county councils and about 15,000 community councils, its organization was at the disposal of each war loan drive and each Red Cross drive. It also sponsored the Texas Division of the Woman’s Committee that promoted health, provided recreation, and aided in war drives. The local councils set up programs to generate patriotism, sell war bonds, recruit soldiers, and maintain enthusiasm and support for the war effort in general. Most groups established Home Guards-organizations to promote patriotism and provide militia support if necessary. The Texas State Council of Defense existed through World War I. Council work was also conducted for six months after the Armistice to render aid to returning soldiers. The last council meeting was on June 7, 1919.
BIBLIOGRAPHY:
Texas War Records Collection, Dolph Briscoe Center for American History, University of Texas at Austin. Oran Elijah Turner, History of the Texas State Council of Defense (M.A. thesis, University of Texas, 1926).
Citation
The following, adapted from the Chicago Manual of Style, 15th edition, is the preferred citation for this article.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
Enclosed is the response to your request for an opinion letter signed by the then Acting Wage and Hour Administrator Alexander J. Passantino on January 16, 2009. It does not appear that this response was placed in the mail for delivery to you after it was signed. In any event, we have decided to withdraw it for further consideration by the Wage and Hour Division. We will provide a further response in the near future.
The enclosed opinion letter, and this withdrawal, are issued as official rulings of the Wage and Hour Division for purposes of the Portal-to-Portal Act, 29 U.S.C. § 259. See 29 C.F.R. §§ 790.17(d), 790.19; Hultgren v. County of Lancaster, Nebraska, 913 F.2d 498, 507 (8th Cir. 1990). Our letter to you dated January 16, 2009 is withdrawn and may not be relied upon as a statement of agency policy. Please note that Wage and Hour Opinion Letter FLSA2009-29 (Jan. 16, 2009), a copy of which was attached to our letter to you, has also been withdrawn.
Sincerely,
John L. McKeon
Deputy Administrator for Enforcement
FLSA2009-36
This Opinion Letter is withdrawn.
January 16, 2009
Dear Name*:
This is in response to your request for an opinion regarding whether employees of homebuilders who supervise construction of multiple new homes, townhomes, and/or condominiums each year qualify for an exemption under section 13(a)(1) of the Fair Labor Standards Act (FLSA).* We believe the attached opinion letter recently issued by the United States Department of Labor Wage and Hour Division adequately responds to your inquiry.
Sincerely,
Alexander J. Passantino
Acting Administrator
* Note: The actual name(s) was removed to preserve privacy in accordance with 5 U.S.C. § 552(b)(7).
FLSA2009-29
This Opinion Letter is withdrawn.
January 16, 2009
Dear Name*:
This is in response to your request for an opinion regarding whether a project supervisor in the residential homebuilding industry qualifies for an exemption under section 13(a)(1) of the Fair Labor Standards Act (FLSA).* You ask specifically whether the project supervisor qualifies as an employee employed in a bona fide administrative capacity. It is our opinion that the position is exempt from the minimum wage and overtime requirements of the FLSA.
You indicate that project supervisors are employed by homebuilding companies to supervise and coordinate the construction of residential homes. Often the homebuilding company will outsource the actual construction of the home to various subcontractors, and the project supervisor will serve as the company’s representative at the worksite in dealings with subcontractors, suppliers, customers, and government inspectors. A project supervisor spends more than half of his/her time directing, scheduling, managing, and paying subcontractors and suppliers. Additionally, the project supervisor reviews and modifies new home plans; interacts with building inspectors; ensures each home is ready for each required inspection; responds to customer concerns and complaints; reviews the initial home construction budget to ensure the estimates are reasonable; inspects the work of subcontractors and suppliers; tracks the home costs against original estimates as construction progresses; acts as the company safety inspector at the worksite; works with subcontractors to ensure compliance with all federal and state safety procedures and regulations; and takes appropriate and necessary action if an accident occurs.
Section 13(a)(1) of the FLSA exempts from its minimum wage and overtime pay provisions “any employee employed in a bona fide executive, administrative, or professional capacity.” 29 U.S.C. § 213(a)(1). The exemption is determined not by occupational title or job classification, but rather by the duties and salary of the individual employee involved. See 29 C.F.R. § 541.2.
The term “employee employed in a bona fide administrative capacity” in section 13(a)(1) of the FLSA includes “any employee:”
(1) Compensated on a salary or fee basis at a rate of not less than $455 per week . . . exclusive of board, lodging, or other facilities;
(2) Whose primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and
(3) Whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.
29 C.F.R. § 541.200.
Regarding the first requirement that the project supervisor is compensated on a salary or fee basis at a rate of not less than $455 per week, exclusive of board, lodging, or other facilities, you request that we assume the project supervisor meets this requirement and is paid accordingly. Therefore, we focus on whether the position also meets the primary duty test in determining whether the project supervisor qualifies for the administrative exemption. To satisfy the primary duty test, the project supervisor’s primary duty must include both the performance of office or non-manual work directly related to the management or general business operations of the employer and the exercise of discretion and independent judgment with respect to matters of significance.
As stated in 29 C.F.R. § 541.201(a):
To qualify for the administrative exemption, an employee’s primary duty must be the performance of [office or non-manual] work directly related to the management or general business operations of the employer or the employer’s customers . . . To meet this requirement, an employee must perform work directly related to assisting with the running or servicing of the business, as distinguished, for example, from working on a manufacturing production line or selling a product in a retail or service establishment.
Additionally, as stated in 29 C.F.R. § 541.201(b):
Work directly related to management or general business operations includes, but is not limited to, work in functional areas such as tax; finance; accounting; budgeting; auditing; insurance; quality control; purchasing; procurement; advertising; marketing; research; safety and health; personnel management; human resources; employee benefits; labor relations; public relations; government relations; computer network; internet and database administration; legal and regulatory compliance; and similar activities.
We recently issued an opinion, Wage and Hour Opinion Letter January 16, 2009, in which we concluded that project superintendents employed by a commercial construction company qualify as exempt administrative employees because their primary duties appeared “to relate directly to the management or general business operation of [the employer], i.e., they are responsible for overseeing a commercial construction project from start to finish.” (citing 29 C.F.R. § 541.201(a)-(c)). As we explained in Wage and Hour Opinion Letter January 16, 2009, recent decisions in the federal courts demonstrate that the application of these requirements is highly fact specific. See Gottlieb v. Construction Servs. & Consultants, Inc., No. 05-14139, 2006 WL 5503644, at *6-7 (S.D. Fla. July 24, 2006) (project superintendents whose primary duty “involved producing the product their company existed to market” rather than servicing the company itself, and where “all ‘matters of significance’ were determined by [the project supervisor’s] superiors” were not exempt administrators).
In Gottlieb, the project superintendent did not qualify for the administrative exemption because, in part, his duties were primarily to inspect the work of subcontractors to ensure compliance with the builder’s plans to schedule the subcontractors and supplies to ensure they were both in place at the proper time. See 2006 WL 5503644, at *6; 29 C.F.R. § 541.203(g) (“[o]rdinary inspection work generally does not meet the duties requirements for the administrative exemption”); 29 C.F.R. § 541.202(e) (“the exercise of discretion and independent judgment must be more than the use of skill in applying well-established techniques, procedures, or specific standards described in manuals or other sources”). The fact that the project superintendent’s work was important to the company, affecting its profitability and reputation, was not dispositive. See Gottlieb, 2006 WL 5503644, at *6 (citing Sack v. Miami Helicopter Svc., Inc., 986 F. Supp. 1456, 1469 (S.D. Fla. 1997)); 29 C.F.R. § 541.202(f).
From your letter describing the project supervisor’s duties, it appears that an overwhelming majority of his/her work is non-manual work directly related to the management or general business operations of the employer, a homebuilding company, and includes tasks such as budgeting, auditing, quality control, purchasing, procurement, safety and health, personnel management, human resources, labor relations, public relations, government relations, legal and regulatory compliance, and similar activities.
To begin, the actual manual work of constructing the home is outsourced to subcontractors and suppliers. As previously stated, the project supervisor supervises and coordinates the construction of the home and serves as the homebuilding company’s representative at the work-site in dealings with subcontractors, suppliers, customers, and government inspectors.
In your letter, you indicate that the project supervisor spends more than half of his/her time directing, managing, scheduling, and paying subcontractors and suppliers. In discharging these duties, the project supervisor evaluates the quality and efficiency of the subcontractors’ and suppliers’ work, is authorized to stop their work to correct any observed deficiencies, and may require them to remove any of their employees from the worksite. If necessary, the project supervisor may recommend the dismissal of subcontractors and suppliers whose work is not satisfactory. When a particular subcontractor’s contract is up for renewal, the project supervisor provides significant input as to who will be re-contracted for future services.
Additionally, the project supervisor reviews and modifies new home plans, making sure there are no conflicts between the plans and the actual construction of the home. The project supervisor ensures that each home meets all safety, quality, and legal requirements; ensures each home is ready for inspection; and negotiates the best solution for any issue that may arise with a building inspector, subcontractor, or supplier. Also, the project supervisor schedules the subcontractors and suppliers and commits the homebuilding company to pay when appropriate.
Furthermore, the project supervisor serves as each homebuyer’s primary contact in dealing with the construction of the home and also meeting with prospective customers to explain the construction process. The project supervisor reviews the initial home construction budget to ensure the estimates are reasonable and tracks the construction costs against the original estimates once construction begins. Finally, the project supervisor is not typically subject to any on-site supervisors by any other company employee. It appears that, like the project superintendents in Wage and Hour Opinion Letter January 16, 2009, the project supervisors oversee the commercial construction project from start to finish, using a similar amount of discretion and independent judgment when carrying out their duties. The exercise of discretion and independent judgment implies that the project supervisors make independent choices concerning matters of significance, such as whether to depart from prescribed standards or permitted tolerances. See 29 C.F.R. § 541.202(a)-(c). Unlike in Gottlieb, the primary duties of the project supervisors seem to be more involved than just inspecting work to ensure compliance with the builders’ plans and scheduling subcontractors and supplies. Therefore, it appears the project supervisor’s primary duties meet the requirement of being office or non-manual work directly related to the management or general business operations of the employer as stated in 29 C.F.R. § 541.200(a)(2) and further described in 29 C.F.R § 541.201.
As stated in 29 C.F.R. §541.202(a):
To qualify for the administrative exemption, an employee’s primary duty must include the exercise of discretion and independent judgment with respect to matters of significance. In general the exercise of discretion and independent judgment involves the comparison and the evaluation of possible courses of conduct, and acting or making a decision after the various possibilities have been considered. The term “matters of significance” refers to the level of importance or consequence of the work performed.
Additionally, as stated in 29 C.F.R. § 541.202(b):
Factors to consider when determining whether an employee exercises discretion and independent judgment with respect to matters of significance include, but are not limited to: whether the employee has authority to formulate, affect, interpret, or implement management policies or operating practices; whether the employee carries out major assignments in conducting the operations of the business; whether the employee performs work that affects business operations to a substantial degree, even if the employee’s assignments are related to operation of a particular segment of the business; whether the employee has authority to commit the employer in matters that have significant financial impact; whether the employee has authority to waive or deviate from established policies and procedures without prior approval; whether the employee has authority to negotiate and bind the company on significant matters; whether the employee provides consultation or expert advice to management; whether the employee is involved in planning long- or short-term business objectives; whether the employee investigates and resolves matters of significance on behalf of management; and whether the employee represents the company in handling complaints, arbitrating disputes or resolving grievances.
“The exercise of discretion and independent judgment implies that the employee has authority to make an independent choice, free from immediate direction or supervision. However, employees can exercise discretion and independent judgment even if their decisions or recommendations are reviewed at a higher level.” 29 C.F.R. § 541.202(c).
It appears the project supervisor’s primary duties involve the exercise of discretion and independent judgment with respect to matters of significance. For example, in your letter, you indicate that the project supervisor has significant authority to adjust the construction process as necessary when, in his/her opinion, such a change is needed to meet any safety, quality, or legal requirements, or to ensure a high quality home is provided within the estimated budget, and to commit the homebuilding company to any payments that are required to complete such an alteration; to negotiate solutions to issues raised by the building inspector, subcontractors, or suppliers; to schedule subcontractors or suppliers; to stop their work when it is unsatisfactory; to order the removal of their employees when necessary; to recommend the dismissal of a subcontractor or supplier if appropriate; to commit the homebuilding company to any payments to subcontractors or suppliers for any work or building materials provided; and to stop payment to any subcontractor or supplier when appropriate. Additionally, as previously stated the project supervisor serves as the homebuilding company’s sole representative at the worksite and must deal with any issues, concerns, unforeseen events, or problems that may arise during the entire homebuilding process. Thus, the project supervisor has the authority to formulate, affect, interpret, and implement management policies and operating practices; carry out major assignments in conducting the operations of the homebuilding company; perform work that affects business operations to a substantial degree; commit the employer in matters that have significant financial impact; waive or deviate from established policies and procedures without prior approval; negotiate and bind the company on significant matters; and investigate and resolve matters of significance on behalf of the company. Therefore, it appears the project supervisor’s primary duties meet the requirement of including the exercise of discretion and independent judgment with respect to matters of significance as stated in 29 C.F.R. § 541.200(a)(3) and further described in 29 C.F.R § 541.202.
It is our opinion that the project supervisor position is exempt from the FLSA’s minimum wage and overtime requirements as an employee employed in a bona fide administrative capacity, provided that the salary basis requirement is met.
This opinion is based exclusively on the facts and circumstances described in your request and is given based on your representation, express or implied, that you have provided a full and fair description of all the facts and circumstances that would be pertinent to our consideration of the question presented. Existence of any other factual or historical background not contained in your letter might require a conclusion different from the one expressed herein. You have represented that this opinion is not sought by a party to pending private litigation concerning the issue addressed herein. You have also represented that this opinion is not sought in connection with an investigation or litigation between a client or firm and the Wage and Hour Division or the Department of Labor.
We trust that this letter is responsive to your inquiry.
Sincerely,
Alexander J. Passantino
Acting Administrator
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
Texas Administrative Code Rule Section 5.11
A certificate of assumption may be attached only to an automobile insurance policy issued for an insurer for which a reinsurance assumption agreement has been approved by a commissioner’s order pursuant to 28 Texas Administrative Code §7.604. For utilization under this section, the Texas Department of Insurance adopts by reference a certificate of assumption form which is published by the Texas Department of Insurance and available from the Automobile Division, P.O. Box 149104, Mail Code 104-1A, Austin, Texas 78714-9104.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
Multiple Employment Employee.[Cross-reference: Multi employment AWW dispute (W06); Entitlement to multi employer benefits (I25)]. For employees injured on or after July 1, 2002, when an IW is employed by more than one employer on the DOI, the IC shall calculate the AWW for that IW using the wages from all of the employers. For this purpose, the IW is required to submit a Multiple Employment Wage Statement to the IC. Section 128.1(h).
Claim Employers.The claim employer is the employer with whom the IW filed a claim for workers’ compensation benefits, and for whom the IW was working at the time of the injury. Section 122.5(a)(1). The portion of the AWW based on employment with the claim employer shall be calculated according to how the IW’s AWW would be determined if the IW did not have multiple employment. Section 128.1(h)(1).
Non-Claim Employers. A non-claim employer is any employer other than the claim employer, who the IW was employed by on the DOI. Section 122.5(a)(2). An IW who was employed by a non-claim employer, in addition to the claim employer, at the time of the injury is allowed an adjustment in income benefits based on this employment.
The portion of the IW’s AWW that is based on employment with a non-claim employer shall be calculated by adding together the wages paid to the IW during the 13 weeks immediately preceding the injury and dividing that result by 13. If the IW has not worked for 13 weeks or more prior to the DOI, the wages used to determine AWW are those paid by the employer to a similar employee who performs similar services and earned wages during the previous 13 weeks. If there is no similar employee at the employer’s business, the AWW is determined using the wages earned by a similar employee who performed similar services in the same vicinity. The wages paid to that person during the 13 weeks prior to the DOI are added together and divided by 13. Section 128.1(h)(2). Wages used to determine AWW from a non-claim employer shall include only those wages reported for federal income tax purposes. Section 408.042(e); Section 128.1(h)(2). The IW must have earned income from the non-claim employer during the 13 weeks prior to the DOI or there can be no adjustment to the AWW for multiple employment. APD 030164-s. The IW has the burden to establish the wages earned from the non-claim employer. APD 052864-s.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
Texas Division of Workers’ Compensation Releases an Educational Video for the Transition to ICD-10 Code Sets
AUSTIN, TX — The Division of Workers’ Compensation (DWC) reminds all Texas workers’ compensation system participants that beginning October 1, 2015, the system will follow federal regulations and transition to the use of the International Classification of Diseases, 10th Edition, Clinical Modification and Procedure Coding System, (ICD-10). The DWC has created a new training video on the transition from current ICD-9 to ICD-10 code sets available to system participants.
The video explains and reminds health care providers, insurance carriers, clearinghouses, and billing services participating in the Texas workers’ compensation system how important it is to prepare in advance for this transition.
Any questions regarding information provided in the video, please contact DWC Comp Connection for Health Care Providers at (800) 252-7031, option #3, via email at medben@tdi.texas.gov , or for the local Austin area at (512) 804-4000.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
The recorded history of insurance law in Texas and the predecessors of the Texas Department of Insurance date back to 1876. The Texas Constitution adopted that year authorized the Legislature to create the Office of Insurance Commissioner when it deemed necessary.
Following are key events in Texas insurance regulation:
1876 – 15th Legislature creates TDI’s predecessor-the Department of Insurance, Statistics and History. In addition to his insurance-related duties, the commissioner is charged with keeping information and statistics on the state’s population, wealth and general resources. He is also the state historian, state librarian, and superintendent of public grounds and buildings.
1887 – 20th Legislature expands the commissioner’s authority to include agriculture and renames the agency the Department of Agriculture, Insurance, Statistics and History. The commissioner also is made an ex-officio member of the Texas A&M College Board of Directors.
1905 – the first state banking act is passed, adding the regulation and supervision of state banks to the office of the Commissioner of Agriculture, Insurance, Statistics and History.
1907 – 30th Legislature creates the office of Commissioner of Agriculture and renames TDI’s predecessor the Department of Insurance and Banking.
1909 – Commissioner of Insurance and Banking is made chair of the newly created Fire Insurance Rating Board. The commissioner also becomes supervisor of all building and loan associations in Texas.
1910 – Fire rating board is replaced by the State Insurance Board and given authority to promulgate fire rates.
1913 – State Insurance Board’s name is changed to the State Fire Insurance Commission and its authority is broadened. Workers’ compensation law is passed and Texas Employers Insurance Association (TEIA) is created.
1923 – 38th Legislature separates insurance and banking functions by creating the Department of Insurance and the Banking Department, each headed by a separate commissioner. The Legislature transfers rate-making authority in the area of workers’ compensation from TEIA to the State Fire Insurance Commission.
1927 – 40th Legislature creates the Board of Insurance Commissioners, composed of the Life Insurance Commissioner, the Fire Insurance Commissioner and Casualty Insurance Commissioner. The Legislature also gives the insurance commissioner the power to approve or disapprove auto insurance rates and to promulgate uniform policy forms.
1951 – Insurance laws are codified as Texas Insurance Code.
1954 – 1958 — Insurance industry in Texas is rocked by domestic scandals. As a result, the Legislature passes at least 16 insurance-related bills, among them measures strengthening examination laws, increasing minimum capital and surplus requirements, and giving more control to the Board for the issuing of certificates of authority.
1957 – Modern Board — the State Board of Insurance — takes shape as a result of changes mandated in the agency’s operation by the 55th Legislature. The three-member Board is given responsibility for hiring a Commissioner of Insurance to serve at its pleasure as chief administrative officer.
1975 – The Legislature creates a separate State Fire Marshal’s Office (SFMO).
1987 – 70th Legislature creates the Office of Consumer Protection (OCP) under the SBI.
1988 – National County Mutual insolvency — largest ever in Texas — leads to resignation of Commissioner, many changes at SBI and reform legislation passed by the 71st Legislature in 1989.
1989 – Legislature enacts major workers’ compensation reform law.
1991 – 72nd Legislature passes the most comprehensive insurance reform legislation (HB2 and HB62) in Texas history, affecting everything from ratemaking to the compulsory auto insurance liability law. The State Board is renamed the Texas Department of Insurance. OCP is made independent of TDI, renamed the Office of Public Insurance Counsel (OPIC) and its powers broadened. The SFMO becomes part of new Texas Commission on Fire Protection.
1993 – 73rd Legislature passes legislation giving most of Board’s authority to a Commissioner to be appointed by the Governor in odd-numbered years to a two-year term and confirmed by the Texas Senate. It allows Board to continue its authority over rates, policy forms and related matters until August 31, 1994. On November 18, 1993, however, the Board votes unanimously to turn over all remaining authority to the Commissioner as of December 16, 1993.
2003 – In response to rising homeowners insurance premiums, the Legislature provides TDI with new authority to regulate all property and casualty insurance rates in Texas, eliminating exemptions for Lloyd’s and County Mutual companies. The Legislature also shifts the method of automobile and property insurance regulation from a benchmark system to a file-and-use system.
2005 – The Legislature abolishes the Texas Workers’ Compensation Commission and transfers its duties to TDI.
2008 – The Texas coast is struck by two hurricanes: Hurricane Dolly hits South Padre Island on July 23rd and Hurricane Ike, the most destructive storm in Texas history, makes landfall on Galveston Island on September 13th. Agency response includes consumer assistance with resolving claims and disputes, investigation of fraud and administrative violations by agents and companies, financial monitoring of companies, and direct informational assistance to consumers in the field at disaster response centers.
2011 – The Texas Windstorm Insurance Association is placed under Administrative Oversight following both a financial examination and a limited scope examination. The large number of Hurricane Ike claims had stretched the Association’s resources resulting in customer service problems, questionable personnel actions, and financial irregularities.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
AUSTIN – Commissioner of Insurance David Mattax has appointed four members to serve on a Workers’ Compensation Appeals Panel, which helps interpret and apply National Council on Compensation Insurance rules to disputes brought by policyholders.
Jim Gavin of Austin is the director of insurance information for the Independent Insurance Agents of Texas where he provides ongoing training to insurance agents. He is a volunteer for the Wichita Falls Area Food Bank, United Regional Healthcare Foundation, Camp Fire Boys & Girls and Notre Dame Catholic School Board. Mr. Gavin is a graduate of St. Edward’s University.
Thomas Glasson of Dallas is the state government affairs officer for American International Group where he serves as the primary legislative and Department of Insurance contact in five southeastern states. He is a member of the Chartered Property Casualty Underwriting Society and Dallas Fort Worth Risk Management Society. He volunteers for the Arthritis foundation, Senior Source, and Junior Achievement Toys for Tots. Mr. Glasson received his degree from the University of Texas at Austin.
Thomas Veitch of San Antonio is an attorney and senior shareholder for Langley & Banak. He holds the Certified Insurance Counselors, Chartered Life Underwriter, and Chartered Property Casualty Underwriting designations and has more than 50 years’ experience in insurance related fields. Mr. Veitch is a life member of the Texas Bar foundation, and a member of the State Bar of Texas and American Bar Association. He is a graduate of Central Michigan University and has a law degree from St. Mary’s University.
David Voldan of Arlington is a Field Audit Manager for Liberty Mutual Insurance Company where he is responsible for the completion of premium audits in a territory that includes Texas, Oklahoma, Arkansas and Louisiana. He has worked as a premium auditor or manager in the casualty insurance business for 24 years. Mr. Voldan is a member of Premium Audit Advisory Services, National Society of Insurance Premium Auditors and Insurance Auditors Association of the Southeast. He is a graduate of Sam Houston State University.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
“They were singing in French, but the melody was freedom and any American could understand.”
-Audie Murphy
“Let us have liberty of speech and action in our land, I say, but not gross abuse and calumny.”
-Sarah Morgan
“I am firmly established in that standard of political faith that holds to a plain, simple government, with. severe limitations upon delegated powers, honestly and frugally administered, as the noblest and truest outgrowth of the wisdom taught by its founders, and which has proven through all vicissitudes the most valuable safeguard to public liberty, freedom of conscience, and a noble manhood, limiting the domain of its authority in the social compact to the preservation of public local agencies, and the administration of justice with the view of protecting every real and substantive right, while leaving all else to the unfettered enterprise of the citizen under the regulation of that moral power which springs from self-reliance, enlightened conscience, and a cultivated intelligence, crystallized into a devoted patriotism.” Inaugural Address, January 15, 1889
-Lawrence Sullivan Ross, Governor of Texas
“In Prosperity Our Friends Know Us. In Adversity We Know Our friends.”
-Colin Powell
“Rights, privileges and duties under the Constitution must be fully restored.”
-George McClellan, Democrat Candidate for the U.S. Presidency, 1864
“To suppress free speech is a double wrong. It violates the rights of the hearer as well as those of the speaker.”
-Frederick Douglass
“The cowards never start and the weak die along the way.”
-Kit Carson
“We can not overestimate the fervent love of liberty, the intelligent courage, and the sum of common sense with which our fathers made the great experiment of self-government.”
-James A. Garfield
“The basis, the corner-stone of this Government, was the perfect equality of the free, sovereign, and independent States which made it.”
-Robert Toombs
“I love freedom. I love freedom of expression. I love economic freedom. I don’t want the government to tell me what to do with my kids. I want the government to leave me alone.”
-Kennedy, former V.J. at MTV
“There may be times when we are powerless to prevent injustice, but there must never be a time when we fail to protest.”
-Elie Wiesel, Holocaust Survivor
“It is necessary to curb the power of government. This is the task of all constitutions, bills of rights and laws. This is the meaning of all struggles which men have fought for liberty.”
-Ludwig von Mises
“The forbearing use of power does not only form a touchstone, but the manner in which an individual enjoys certain advantages over others is a test of a true gentleman. The power which the strong have over the weak, the employer over the employed, the educated over the unlettered, the experienced over the confiding, even the clever over the silly — the forbearing or inoffensive use of all this power or authority, or a total abstinence from it when the case admits it, will show the gentleman in a plain light. The gentleman does not needlessly and unnecessarily remind an offender of a wrong he may have committed against him. He cannot only forgive, he can forget; and he strives for that nobleness of self and mildness of character which impart sufficient strength to let the past be but the past. A true man of honor feels humbled himself when he cannot help humbling others.” Definition of a Gentleman
-R. Edward Lee
“Subsidies create more of whatever is being subsidized.”
-Lew Rockwell
“Massive centralization of power in the name of liberty can be put to quite illiberal purposes. The French Revolution produced the first massive centralization, destroying all independent social authorities in the name of the “rights of man.” It also produced the first totalitarian reign of terror. For the first time in European history, universal male conscription was ordered, allowing the new French state to raise an army beyond anything of which eighteenth-century monarch could have dreamed. Whereas Louis XVI did well to raise an army of 200,000, the French Republic would eventually run through over three million troops—at that time the largest army ever assembled in the history of the world. Napoleon used this unprecedented concentration of power to plunder Europe, legitimating his brutal conquests with the Enlightenment mask of the “rights of man..The French state became the model for other European countries…”
-Donald W. Livingston
“Many remark justice is blind; pity those in her sway, shocked to discover she is also deaf.” A Testament of Hope
-Martin Luther King, Jr.
“I would rather be exposed to the inconveniences attending too much liberty than those attending too small a degree of it.” Letter to Archibald Stuart, December 23, 1791
-Thomas Jefferson
“The liberty of all Americans is in the balance…if someone claims they will be “offended,” is that sufficient reason to restrict free speech? Offended? Bills have been filed in the Texas Legislature to allow those who have a concealed handgun license to carry openly and one of the major objections comes from those who are offended by the mere sight of a firearm. Is there a constitutional right to go through life unoffended? In my view we have a constitutional right TO be offended because without that freedom the 1st amendment guarantee of free expression is gutted.”
-Jerry Patterson
“A right without an attendant responsibility is as unreal as a sheet of paper which has only one side.”
-Felix Morley, American Journalist, Educator and Author
“It is thus that I believe the heroic spirit of liberty …will in generations to come inspire Americans to fight for the high ideals of freedom and self-government which the men … have alike inherited from their forefathers. And so it will come to pass that the glorious valor and steadfast devotion to liberty which characterized our soldier will be acknowledged as a part of the national inheritance, to be treasured and guarded by every American who loves his country and values, the traditions of her glory. Thus the fame … will shine with imperishable lustre: “Immota manet, sæcula vincit.”
-Randolph H. McKim
“He loves righteousness and justice; The earth is full of the loving kindness of the Lord.”
-Psalms 33:5
“Those who corrupt the public mind are just as evil as those who steal from the public purse.”
-Adlai E. Stevenson
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
RETENTION SCHEDULE FOR RECORDS OF PUBLIC SAFETY AGENCIES
This schedule establishes mandatory minimum retention periods for records commonly found in public safety agencies. No local government office may dispose of a record listed in this schedule prior to the expiration of its retention period. A records control schedule of a local government may not set a retention period that is less than that established for the record in this schedule. Original paper records listed in this schedule may be disposed of prior to the expiration of their minimum retention periods if they have been microfilmed or electronically stored pursuant to the provisions of the Local Government Code, Chapter 204 or Chapter 205, as applicable, and rules of the Texas State Library and Archives Commission adopted under authority of those chapters. Actual disposal of such records by a local government is subject to the policies and procedures of its records management program.
Destruction of local government records contrary to the provisions of the Local Government Records Act of 1989 and administrative rules adopted under it, including this schedule, is a Class A misdemeanor and, under certain circumstances, a third degree felony (Penal Code, Section 37.10). Anyone destroying local government records without legal authorization may also be subject to criminal penalties and fines under the Public Information Act (Government Code, Chapter 552). P. O. Box 12927 • Austin, Texas • 78711-2927 • (512) 421-7200
Effective August 14, 2011
Introduction
The Government Code, Section 441.158, provides that the Texas State Library and Archives Commission shall issue records retention schedules for each type of local government, including a schedule for records common to all types of local government. The law provides further that each schedule must state the retention period prescribed by federal or state law, rule of court, or regulation for a record for which a period is prescribed; and prescribe retention periods for all other records, which periods have the same effect as if prescribed by law after the records retention schedule is adopted as a rule of the Commission.
The retention period for a record applies to the record regardless of the medium in which it is maintained. Some records listed in this schedule are maintained electronically in many offices, but electronically stored data used to create in any manner a record or the functional equivalent of a record as described in this schedule must be retained, along with the hardware and software necessary to access the data, for the retention period assigned to the record, unless backup copies of the data generated from electronic storage are retained in paper or on microfilm for the retention period. This includes electronic mail (email), websites and electronic publications.
Unless otherwise stated, the retention period for a record is in calendar years from the date of its creation. The retention period applies only to an official record as distinct from convenience or working copies created for informational purposes. Where several copies are maintained, each local government should decide which shall be the official record and in which of its divisions or departments it will be maintained. Local governments in their records management programs should establish policies and procedures to provide for the systematic disposal of copies.
A local government record whose retention period has expired may not be destroyed if any litigation, claim, negotiation, audit, public information request, administrative review, or other action involving the record is initiated; its destruction shall not occur until the completion of the action and the resolution of all issues that arise from it.
A local government record whose retention period expires during any litigation, claim, negotiation, audit, public information request, administrative review, or other action involving the record may not be destroyed until the completion of the action and the resolution of all issues that arise from it.
If a record described in this schedule is maintained in a bound volume of a type in which pages were not meant to be removed the retention period, unless otherwise stated, dates from the date of last entry.
If two or more records listed in this schedule are maintained together by a local government and are not severable, the combined record must be retained for the length of time of the component with the longest retention period. A record whose minimum retention period on this schedule has not yet expired and is less than permanent may be disposed of if it has been so badly damaged by fire, water, or insect or rodent infestation as to render it unreadable, or if portions of the information in the record have been so thoroughly destroyed that remaining portions are unintelligible. If the retention period for the record is permanent in this schedule, authority to dispose of the damaged record must be obtained from the Director and Librarian of the Texas State Library and Archives Commission. The Request for Authority to Destroy Unscheduled Records (Form SLR 501) should be used for this Local Schedule PS Page 2 of 56
Effective August 14, 2011
purpose.
Certain records listed in this schedule are assigned the retention period of AV (as long as administratively valuable). This retention period affords local governments the maximum amount of discretion in determining a specific retention period for the record described.
Use of Asterisk (*)
The use of an asterisk in this third edition of Local Schedule PS indicates that the record is either new to this edition, the retention period for the record has been changed, or substantive amendments have been made to the description of or remarks concerning the record. An asterisk is not used to indicate minor amendments to grammar or punctuation.
ABBREVIATIONS USED IN THIS SCHEDULE
AV – As long as administratively valuable
CE – Calendar year end
CFR – Code of Federal Regulations
FE – Fiscal year end
LA – Life of asset
TAC – Texas Administrative Code
U.S.C. – United State Code
US – Until superseded Local Schedule PS Page 3 of 56
Effective August 14, 2011
Table of Contents
Part 1: Records Common to Public Safety Agencies _____________________________________________________________________ page 6
Section 1-1: General Operations Records ____________________________________________________________________________ page 6
Section 1-2: Vehicle, Equipment, and Animal Records __________________________________________________________________ page 8
Section 1-3: Personnel Records __________________________________________________________________________________ page 12
Section 1-4: Emergency Communications Records ___________________________________________________________________ page 13
Part 2: Law Enforcement Records __________________________________________________________________________________ page 14
Section 2-1: Arrest and Offense Records ___________________________________________________________________________ page 14
Section 2-2: Incident Records ____________________________________________________________________________________ page 17
Section 2-3: Operational Support Records __________________________________________________________________________ page 19
Section 2-4: Jail Records ________________________________________________________________________________________ page 23
Section 2-5: Juvenile Records ____________________________________________________________________________________ page 26
Section 2-6: Records of Writs and Process __________________________________________________________________________ page 37
Section 2-7: Permit Records and Associated Documentation ____________________________________________________________ page 38
Section 2-8: Financial Records ____________________________________________________________________________________ page 39
Section 2-9: Personnel and Training Records ________________________________________________________________________ page 40
Section 2-10: Miscellaneous Records ______________________________________________________________________________ page 41
Part 3: Records of County Medical Examiners ________________________________________________________________________ page 42
Section 3-1: Death Investigation Records ___________________________________________________________________________ page 42
Section 3-2: Laboratory Records _________________________________________________________________________________ page 44 Local Schedule PS Page 4 of 56
Effective August 14, 2011
Section 3-3: Miscellaneous Records _______________________________________________________________________________ page 45
Part 4: Records of Fire Fighting and Emergency Medical Service Agencies ___________________________________________________ page 45
Section 4-1: Fire and Emergency Medical Response Records ____________________________________________________________ page 45
Section 4-2: Fire Prevention and Inspection Records __________________________________________________________________ page 46
Section 4-3: Apparatus and Equipment Records _____________________________________________________________________ page 49
Section 4-4: Training Records ___________________________________________________________________________________ page 50
Section 4-5: Miscellaneous Records _______________________________________________________________________________ page 51
Part 5: Records of Community Supervision and Corrections (Adult Probation) Departments _____________________________________ page 51
Part 6: Records of County, District, and Criminal District Attorneys ________________________________________________________ page 52
Section 6-1: Case Records ______________________________________________________________________________________ page 52
Section 6-2: Administrative and Financial Records ____________________________________________________________________ page 55
Local Schedule PS Page 5 of 56
Effective August 14, 2011
RECORDS OF PUBLIC SAFETY AGENCIES
Retention Notes: a) The term “public safety agency” means any local law enforcement, fire fighting, emergency medical services, or emergency communications department, district, or office; and the offices of the county medical examiner, district attorney, county attorney, and community supervision and corrections.
b) For administrative, financial, personnel, and support service records not included in this schedule, see Local Schedule GR (Records Common to All Governments).
PART 1: RECORDS COMMON TO PUBLIC SAFETY AGENCIES
Retention Note: This part provides retention periods for records common to two or more of the public safety agencies included in this schedule.
SECTION 1-1: GENERAL OPERATIONS RECORDS
Record Number
Record Title
Record Description
Retention Period
Remarks
PS4025-01
ACTIVITY AND STATISTICAL REPORTS
Narrative and/or statistical activity reports prepared by shift supervisors, unit heads, or other public safety personnel on daily or other periodic activities, except reports of the types included in other records groups in this schedule.
PS4025-01a
ACTIVITY AND STATISTICAL REPORTS
Daily and weekly reports.
1 year.
PS4025-01b
ACTIVITY AND STATISTICAL REPORTS
Monthly, bimonthly, quarterly, or semi-annual reports.
3 years.
PS4025-01c
ACTIVITY AND STATISTICAL REPORTS
Annual reports.
PERMANENT.
PS4025-01d
ACTIVITY AND STATISTICAL REPORTS
Chronological logs or registers of activities, usually kept at station, company, or unit level, of daily activities such as roll calls, briefings, visitors, drills, inspections, except for records of similar types noted elsewhere in this schedule.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
(1) “Club” means an instrument that is specially designed, made, or adapted for the purpose of inflicting serious bodily injury or death by striking a person with the instrument, and includes but is not limited to the following:
(A) blackjack;
(B) nightstick;
(C) mace;
(D) tomahawk.
(2) “Explosive weapon” means any explosive or incendiary bomb, grenade, rocket, or mine, that is designed, made, or adapted for the purpose of inflicting serious bodily injury, death, or substantial property damage, or for the principal purpose of causing such a loud report as to cause undue public alarm or terror, and includes a device designed, made, or adapted for delivery or shooting an explosive weapon.
(3) “Firearm” means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use. Firearm does not include a firearm that may have, as an integral part, a folding knife blade or other characteristics of weapons made illegal by this chapter and that is:
(A) an antique or curio firearm manufactured before 1899; or
(B) a replica of an antique or curio firearm manufactured before 1899, but only if the replica does not use rim fire or center fire ammunition.
(4) “Firearm silencer” means any device designed, made, or adapted to muffle the report of a firearm.
(5) “Handgun” means any firearm that is designed, made, or adapted to be fired with one hand.
(6) “Illegal knife” means a:
(A) knife with a blade over five and one-half inches;
(B) hand instrument designed to cut or stab another by being thrown;
(C) dagger, including but not limited to a dirk, stiletto, and poniard;
(D) bowie knife;
(E) sword; or
(F) spear.
(7) “Knife” means any bladed hand instrument that is capable of inflicting serious bodily injury or death by cutting or stabbing a person with the instrument.
(8) “Knuckles” means any instrument that consists of finger rings or guards made of a hard substance and that is designed, made, or adapted for the purpose of inflicting serious bodily injury or death by striking a person with a fist enclosed in the knuckles.
(9) “Machine gun” means any firearm that is capable of shooting more than two shots automatically, without manual reloading, by a single function of the trigger.
(10) “Short-barrel firearm” means a rifle with a barrel length of less than 16 inches or a shotgun with a barrel length of less than 18 inches, or any weapon made from a shotgun or rifle if, as altered, it has an overall length of less than 26 inches.
(11) “Switchblade knife” means any knife that has a blade that folds, closes, or retracts into the handle or sheath and that opens automatically by pressure applied to a button or other device located on the handle or opens or releases a blade from the handle or sheath by the force of gravity or by the application of centrifugal force. The term does not include a knife that has a spring, detent, or other mechanism designed to create a bias toward closure and that requires exertion applied to the blade by hand, wrist, or arm to overcome the bias toward closure and open the knife.
(12) “Armor-piercing ammunition” means handgun ammunition that is designed primarily for the purpose of penetrating metal or body armor and to be used principally in pistols and revolvers.
(13) “Hoax bomb” means a device that:
(A) reasonably appears to be an explosive or incendiary device; or
(B) by its design causes alarm or reaction of any type by an official of a public safety agency or a volunteer agency organized to deal with emergencies.
(14) “Chemical dispensing device” means a device, other than a small chemical dispenser sold commercially for personal protection, that is designed, made, or adapted for the purpose of dispensing a substance capable of causing an adverse psychological or physiological effect on a human being.
(15) “Racetrack” has the meaning assigned that term by the Texas Racing Act (Article 179e, Vernon’s Texas Civil Statutes).
(16) “Zip gun” means a device or combination of devices that was not originally a firearm and is adapted to expel a projectile through a smooth-bore or rifled-bore barrel by using the energy generated by an explosion or burning substance.
Sec. 46.02. UNLAWFUL CARRYING WEAPONS.
(a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not:
(1) on the person’s own premises or premises under the person’s control; or
(2) inside of or directly en route to a motor vehicle that is owned by the person or under the person’s control.
(a-1) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle that is owned by the person or under the person’s control at any time in which:
(1) the handgun is in plain view; or
(2) the person is:
(A) engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic;
(B) prohibited by law from possessing a firearm; or
(C) a member of a criminal street gang, as defined by Section 71.01.
(a-2) For purposes of this section, “premises” includes real property and a recreational vehicle that is being used as living quarters, regardless of whether that use is temporary or permanent. In this subsection, “recreational vehicle” means a motor vehicle primarily designed as temporary living quarters or a vehicle that contains temporary living quarters and is designed to be towed by a motor vehicle. The term includes a travel trailer, camping trailer, truck camper, motor home, and horse trailer with living quarters.
(b) Except as provided by Subsection (c), an offense under this section is a Class A misdemeanor.
(c) An offense under this section is a felony of the third degree if the offense is committed on any premises licensed or issued a permit by this state for the sale of alcoholic beverages.
Sec. 46.03. PLACES WEAPONS PROHIBITED.
(a) A person commits an offense if the person intentionally, knowingly, or recklessly possesses or goes with a firearm, illegal knife, club, or prohibited weapon listed in Section 46.05(a):
(1) on the physical premises of a school or educational institution, any grounds or building on which an activity sponsored by a school or educational institution is being conducted, or a passenger transportation vehicle of a school or educational institution, whether the school or educational institution is public or private, unless pursuant to written regulations or written authorization of the institution;
(2) on the premises of a polling place on the day of an election or while early voting is in progress;
(3) on the premises of any government court or offices utilized by the court, unless pursuant to written regulations or written authorization of the court;
(4) on the premises of a racetrack;
(5) in or into a secured area of an airport; or
(6) within 1,000 feet of premises the location of which is designated by the Texas Department of Criminal Justice as a place of execution under Article 43.19, Code of Criminal Procedure, on a day that a sentence of death is set to be imposed on the designated premises and the person received notice that:
(A) going within 1,000 feet of the premises with a weapon listed under this subsection was prohibited; or
(B) possessing a weapon listed under this subsection within 1,000 feet of the premises was prohibited.
(b) It is a defense to prosecution under Subsections (a)(1)-(4) that the actor possessed a firearm while in the actual discharge of his official duties as a member of the armed forces or national guard or a guard employed by a penal institution, or an officer of the court.
(c) In this section:
(1) “Premises” has the meaning assigned by Section 46.035.
(2) “Secured area” means an area of an airport terminal building to which access is controlled by the inspection of persons and property under federal law.
(d) It is a defense to prosecution under Subsection (a)(5) that the actor possessed a firearm or club while traveling to or from the actor’s place of assignment or in the actual discharge of duties as:
(1) a member of the armed forces or national guard;
(2) a guard employed by a penal institution; or
(3) a security officer commissioned by the Texas Private Security Board if:
(A) the actor is wearing a distinctive uniform; and
(B) the firearm or club is in plain view; or
(4) a security officer who holds a personal protection authorization under Chapter 1702, Occupations Code, provided that the officer is either:
(A) wearing the uniform of a security officer, including any uniform or apparel described by Section 1702.323(d), Occupations Code, and carrying the officer’s firearm in plain view; or
(B) not wearing the uniform of a security officer and carrying the officer’s firearm in a concealed manner.
(e) It is a defense to prosecution under Subsection (a)(5) that the actor checked all firearms as baggage in accordance with federal or state law or regulations before entering a secured area.
(f) It is not a defense to prosecution under this section that the actor possessed a handgun and was licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code.
(g) An offense under this section is a third degree felony.
(h) It is a defense to prosecution under Subsection (a)(4) that the actor possessed a firearm or club while traveling to or from the actor’s place of assignment or in the actual discharge of duties as a security officer commissioned by the Texas Board of Private Investigators and Private Security Agencies, if:
(1) the actor is wearing a distinctive uniform; and
(2) the firearm or club is in plain view.
(i) It is an exception to the application of Subsection (a)(6) that the actor possessed a firearm or club:
(1) while in a vehicle being driven on a public road; or
(2) at the actor’s residence or place of employment.
Sec. 46.04. UNLAWFUL POSSESSION OF FIREARM.
(a) A person who has been convicted of a felony commits an offense if he possesses a firearm:
(1) after conviction and before the fifth anniversary of the person’s release from confinement following conviction of the felony or the person’s release from supervision under community supervision, parole, or mandatory supervision, whichever date is later; or
(2) after the period described by Subdivision (1), at any location other than the premises at which the person lives.
(b) A person who has been convicted of an offense under Section 22.01, punishable as a Class A misdemeanor and involving a member of the person’s family or household, commits an offense if the person possesses a firearm before the fifth anniversary of the later of:
(1) the date of the person’s release from confinement following conviction of the misdemeanor; or
(2) the date of the person’s release from community supervision following conviction of the misdemeanor.
(c) A person, other than a peace officer, as defined by Section 1.07, actively engaged in employment as a sworn, full-time paid employee of a state agency or political subdivision, who is subject to an order issued under Section 6.504 or Chapter 85, Family Code, under Article 17.292 or Chapter 7A, Code of Criminal Procedure, or by another jurisdiction as provided by Chapter 88, Family Code, commits an offense if the person possesses a firearm after receiving notice of the order and before expiration of the order.
(d) In this section, “family,” “household,” and “member of a household” have the meanings assigned by Chapter 71, Family Code.
(e) An offense under Subsection (a) is a felony of the third degree. An offense under Subsection (b) or (c) is a Class A misdemeanor.
(f) For the purposes of this section, an offense under the laws of this state, another state, or the United States is, except as provided by Subsection (g), a felony if, at the time it is committed, the offense:
(1) is designated by a law of this state as a felony;
(2) contains all the elements of an offense designated by a law of this state as a felony; or
(3) is punishable by confinement for one year or more in a penitentiary.
(g) An offense is not considered a felony for purposes of Subsection (f) if, at the time the person possesses a firearm, the offense:
(1) is not designated by a law of this state as a felony; and
(2) does not contain all the elements of any offense designated by a law of this state as a felony.
Sec. 46.041. UNLAWFUL POSSESSION OF METAL OR BODY ARMOR BY FELON.
(a) In this section, “metal or body armor” means any body covering manifestly designed, made, or adapted for the purpose of protecting a person against gunfire.
(b) A person who has been convicted of a felony commits an offense if after the conviction the person possesses metal or body armor.
(c) An offense under this section is a felony of the third degree.
Sec. 46.05. PROHIBITED WEAPONS.
(a) A person commits an offense if he intentionally or knowingly possesses, manufactures, transports, repairs, or sells:
(1) an explosive weapon;
(2) a machine gun;
(3) a short-barrel firearm;
(4) a firearm silencer;
(5) a switchblade knife;
(6) knuckles;
(7) armor-piercing ammunition;
(8) a chemical dispensing device; or
(9) a zip gun.
(b) It is a defense to prosecution under this section that the actor’s conduct was incidental to the performance of official duty by the armed forces or national guard, a governmental law enforcement agency, or a correctional facility.
(c) It is a defense to prosecution under this section that the actor’s possession was pursuant to registration pursuant to the National Firearms Act, as amended.
(d) It is an affirmative defense to prosecution under this section that the actor’s conduct:
(1) was incidental to dealing with a switchblade knife, springblade knife, or short-barrel firearm solely as an antique or curio; or
(2) was incidental to dealing with armor-piercing ammunition solely for the purpose of making the ammunition available to an organization, agency, or institution listed in Subsection (b).
(e) An offense under this section is a felony of the third degree unless it is committed under Subsection (a)(5) or (a)(6), in which event, it is a Class A misdemeanor.
(f) It is a defense to prosecution under this section for the possession of a chemical dispensing device that the actor is a security officer and has received training on the use of the chemical dispensing device by a training program that is:
(1) provided by the Commission on Law Enforcement Officer Standards and Education; or
(2) approved for the purposes described by this subsection by the Texas Private Security Board of the Department of Public Safety.
(g) In Subsection (f), “security officer” means a commissioned security officer as defined by Section 1702.002, Occupations Code, or a noncommissioned security officer registered under Section 1702.221, Occupations Code.
Sec. 46.06. UNLAWFUL TRANSFER OF CERTAIN WEAPONS
.
(a) A person commits an offense if the person:
(1) sells, rents, leases, loans, or gives a handgun to any person knowing that the person to whom the handgun is to be delivered intends to use it unlawfully or in the commission of an unlawful act;
(2) intentionally or knowingly sells, rents, leases, or gives or offers to sell, rent, lease, or give to any child younger than 18 years any firearm, club, or illegal knife;
(3) intentionally, knowingly, or recklessly sells a firearm or ammunition for a firearm to any person who is intoxicated;
(4) knowingly sells a firearm or ammunition for a firearm to any person who has been convicted of a felony before the fifth anniversary of the later of the following dates:
(A) the person’s release from confinement following conviction of the felony; or
(B) the person’s release from supervision under community supervision, parole, or mandatory supervision following conviction of the felony;
(5) sells, rents, leases, loans, or gives a handgun to any person knowing that an active protective order is directed to the person to whom the handgun is to be delivered; or
(6) knowingly purchases, rents, leases, or receives as a loan or gift from another a handgun while an active protective order is directed to the actor.
(b) In this section:
(1) “Intoxicated” means substantial impairment of mental or physical capacity resulting from introduction of any substance into the body.
(2) “Active protective order” means a protective order issued under Title 4, Family Code, that is in effect. The term does not include a temporary protective order issued before the court holds a hearing on the matter.
(c) It is an affirmative defense to prosecution under Subsection (a)(2) that the transfer was to a minor whose parent or the person having legal custody of the minor had given written permission for the sale or, if the transfer was other than a sale, the parent or person having legal custody had given effective consent.
(d) An offense under this section is a Class A misdemeanor, except that an offense under Subsection (a)(2) is a state jail felony if the weapon that is the subject of the offense is a handgun.
Sec. 46.07. INTERSTATE PURCHASE
.
A resident of this state may, if not otherwise precluded by law, purchase firearms, ammunition, reloading components, or firearm accessories in another state. This authorization is enacted in conformance with 18 U.S.C. Section 922(b)(3)(A).
Sec. 46.10. DEADLY WEAPON IN PENAL INSTITUTION
.
(a) A person commits an offense if, while confined in a penal institution, he intentionally, knowingly, or recklessly:
(1) carries on or about his person a deadly weapon; or
(2) possesses or conceals a deadly weapon in the penal institution
.
(b) It is an affirmative defense to prosecution under this section that at the time of the offense the actor was engaged in conduct authorized by an employee of the penal institution.
(c) A person who is subject to prosecution under both this section and another section under this chapter may be prosecuted under either section.
(d) An offense under this section is a felony of the third degree.
Sec. 46.11. PENALTY IF OFFENSE COMMITTED WITHIN WEAPON-FREE SCHOOL ZONE
.
(a) Except as provided by Subsection (b), the punishment prescribed for an offense under this chapter is increased to the punishment prescribed for the next highest category of offense if it is shown beyond a reasonable doubt on the trial of the offense that the actor committed the offense in a place that the actor knew was:
(1) within 300 feet of the premises of a school; or
(2) on premises where:
(A) an official school function is taking place; or
(B) an event sponsored or sanctioned by the University Interscholastic League is taking place.
(b) This section does not apply to an offense under Section 46.03(a)(1).
(c) In this section:
(1) “Institution of higher education” and “premises” have the meanings assigned by Section 481.134, Health and Safety Code.
(2) “School” means a private or public elementary or secondary school.
Sec. 46.12. MAPS AS EVIDENCE OF LOCATION OR AREA
.
(a) In a prosecution of an offense for which punishment is increased under Section 46.11, a map produced or reproduced by a municipal or county engineer for the purpose of showing the location and boundaries of weapon-free zones is admissible in evidence and is prima facie evidence of the location or boundaries of those areas if the governing body of the municipality or county adopts a resolution or ordinance approving the map as an official finding and record of the location or boundaries of those areas.
(b) A municipal or county engineer may, on request of the governing body of the municipality or county, revise a map that has been approved by the governing body of the municipality or county as provided by Subsection (a).
(c) A municipal or county engineer shall file the original or a copy of every approved or revised map approved as provided by Subsection (a) with the county clerk of each county in which the area is located.
(d) This section does not prevent the prosecution from:
(1) introducing or relying on any other evidence or testimony to establish any element of an offense for which punishment is increased under Section 46.11; or
(2) using or introducing any other map or diagram otherwise admissible under the Texas Rules of Evidence.
Sec. 46.13. MAKING A FIREARM ACCESSIBLE TO A CHILD
.
(a) In this section:
(1) “Child” means a person younger than 17 years of age.
(2) “Readily dischargeable firearm” means a firearm that is loaded with ammunition, whether or not a round is in the chamber.
(3) “Secure” means to take steps that a reasonable person would take to prevent the access to a readily dischargeable firearm by a child, including but not limited to placing a firearm in a locked container or temporarily rendering the firearm inoperable by a trigger lock or other means.
(b) A person commits an offense if a child gains access to a readily dischargeable firearm and the person with criminal negligence:
(1) failed to secure the firearm; or
(2) left the firearm in a place to which the person knew or should have known the child would gain access.
(c) It is an affirmative defense to prosecution under this section that the child’s access to the firearm:
(1) was supervised by a person older than 18 years of age and was for hunting, sporting, or other lawful purposes;
(2) consisted of lawful defense by the child of people or property;
(3) was gained by entering property in violation of this code; or
(4) occurred during a time when the actor was engaged in an agricultural enterprise.
(d) Except as provided by Subsection (e), an offense under this section is a Class C misdemeanor.
(e) An offense under this section is a Class A misdemeanor if the child discharges the firearm and causes death or serious bodily injury to himself or another person.
(f) A peace officer or other person may not arrest the actor before the seventh day after the date on which the offense is committed if:
(1) the actor is a member of the family, as defined by Section 71.003, Family Code, of the child who discharged the firearm; and
(2) the child in discharging the firearm caused the death of or serious injury to the child.
(g) A dealer of firearms shall post in a conspicuous position on the premises where the dealer conducts business a sign that contains the following warning in block letters not less than one inch in height:
“IT IS UNLAWFUL TO STORE, TRANSPORT, OR ABANDON AN UNSECURED FIREARM IN A PLACE WHERE CHILDREN ARE LIKELY TO BE AND CAN OBTAIN ACCESS TO THE FIREARM.”
Sec. 46.14. FIREARM SMUGGLING
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(a) A person commits an offense if the person knowingly engages in the business of transporting or transferring a firearm that the person knows was acquired in violation of the laws of any state or of the United States. For purposes of this subsection, a person is considered to engage in the business of transporting or transferring a firearm if the person engages in that conduct:
(1) on more than one occasion; or
(2) for profit or any other form of remuneration.
(b) An offense under this section is a felony of the third degree, unless it is shown on the trial of the offense that the offense was committed with respect to three or more firearms in a single criminal episode, in which event the offense is a felony of the second degree.
(c) This section does not apply to a peace officer who is engaged in the actual discharge of an official duty.
(d) If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section, the other law, or both.
Sec. 46.15. NONAPPLICABILITY.
(a) Sections 46.02 and 46.03 do not apply to:
(1) peace officers or special investigators under Article 2.122, Code of Criminal Procedure, and neither section prohibits a peace officer or special investigator from carrying a weapon in this state, including in an establishment in this state serving the public, regardless of whether the peace officer or special investigator is engaged in the actual discharge of the officer’s or investigator’s duties while carrying the weapon;
(2) parole officers and neither section prohibits an officer from carrying a weapon in this state if the officer is:
(A) engaged in the actual discharge of the officer’s duties while carrying the weapon; and
(B) in compliance with policies and procedures adopted by the Texas Department of Criminal Justice regarding the possession of a weapon by an officer while on duty;
(3) community supervision and corrections department officers appointed or employed under Section 76.004, Government Code, and neither section prohibits an officer from carrying a weapon in this state if the officer is:
(A) engaged in the actual discharge of the officer’s duties while carrying the weapon; and
(B) authorized to carry a weapon under Section 76.0051, Government Code;
(4) a judge or justice of a federal court, the supreme court, the court of criminal appeals, a court of appeals, a district court, a criminal district court, a constitutional county court, a statutory county court, a justice court, or a municipal court who is licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code;
(5) an honorably retired peace officer or federal criminal investigator who holds a certificate of proficiency issued under Section 1701.357, Occupations Code, and is carrying a photo identification that:
(A) verifies that the officer honorably retired after not less than 15 years of service as a commissioned officer; and
(B) is issued by a state or local law enforcement agency;
(6) a district attorney, criminal district attorney, county attorney, or municipal attorney who is licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code;
(7) an assistant district attorney, assistant criminal district attorney, or assistant county attorney who is licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code;
(8) a bailiff designated by an active judicial officer as defined by Section 411.201, Government Code, who is:
(A) licensed to carry a concealed handgun under Chapter 411, Government Code; and
(B) engaged in escorting the judicial officer; or
(9) a juvenile probation officer who is authorized to carry a firearm under Section 142.006, Human Resources Code.
(b) Section 46.02 does not apply to a person who:
(1) is in the actual discharge of official duties as a member of the armed forces or state military forces as defined by Section 431.001, Government Code, or as a guard employed by a penal institution;
(2) is traveling;
(3) is engaging in lawful hunting, fishing, or other sporting activity on the immediate premises where the activity is conducted, or is en route between the premises and the actor’s residence or motor vehicle, if the weapon is a type commonly used in the activity;
(4) holds a security officer commission issued by the Texas Private Security Board, if the person is engaged in the performance of the person’s duties as an officer commissioned under Chapter 1702, Occupations Code, or is traveling to or from the person’s place of assignment and is wearing the officer’s uniform and carrying the officer’s weapon in plain view;
(5) acts as a personal protection officer and carries the person’s security officer commission and personal protection officer authorization, if the person:
(A) is engaged in the performance of the person’s duties as a personal protection officer under Chapter 1702, Occupations Code, or is traveling to or from the person’s place of assignment; and
(B) is either:
(i) wearing the uniform of a security officer, including any uniform or apparel described by Section 1702.323(d), Occupations Code, and carrying the officer’s weapon in plain view; or
(ii) not wearing the uniform of a security officer and carrying the officer’s weapon in a concealed manner;
(6) is carrying a concealed handgun and a valid license issued under Subchapter H, Chapter 411, Government Code, to carry a concealed handgun of the same category as the handgun the person is carrying;
(7) holds an alcoholic beverage permit or license or is an employee of a holder of an alcoholic beverage permit or license if the person is supervising the operation of the permitted or licensed premises; or
(8) is a student in a law enforcement class engaging in an activity required as part of the class, if the weapon is a type commonly used in the activity and the person is:
(A) on the immediate premises where the activity is conducted; or
(B) en route between those premises and the person’s residence and is carrying the weapon unloaded.
(c) The provision of Section 46.02 prohibiting the carrying of a club does not apply to a noncommissioned security guard at an institution of higher education who carries a nightstick or similar club, and who has undergone 15 hours of training in the proper use of the club, including at least seven hours of training in the use of the club for nonviolent restraint. For the purposes of this subsection, “nonviolent restraint” means the use of reasonable force, not intended and not likely to inflict bodily injury.
(d) The provisions of Section 46.02 prohibiting the carrying of a firearm or carrying of a club do not apply to a public security officer employed by the adjutant general under Section 431.029, Government Code, in performance of official duties or while traveling to or from a place of duty.
(e) The provisions of Section 46.02 prohibiting the carrying of an illegal knife do not apply to an individual carrying a bowie knife or a sword used in a historical demonstration or in a ceremony in which the knife or sword is significant to the performance of the ceremony.
(f) Section 46.03(a)(6) does not apply to a person who possesses a firearm or club while in the actual discharge of official duties as:
(1) a member of the armed forces or state military forces, as defined by Section 431.001, Government Code; or
(2) an employee of a penal institution.
(g) The provisions of Sections 46.02 and 46.03 prohibiting the possession or carrying of a club do not apply to an animal control officer who holds a certificate issued under Section 829.006, Health and Safety Code, and who possesses or carries an instrument used specifically for deterring the bite of an animal while the officer is in the performance of official duties under the Health and Safety Code or is traveling to or from a place of duty.
(h) Repealed by Acts 2007, 80th Leg., R.S., Ch. 693, Sec. 3(1), eff. September 1, 2007.
(i) Repealed by Acts 2007, 80th Leg., R.S., Ch. 693, Sec. 3(2), eff. September 1, 2007.
(j) The provisions of Section 46.02 prohibiting the carrying of a handgun do not apply to an individual who carries a handgun as a participant in a historical reenactment performed in accordance with the rules of the Texas Alcoholic Beverage Commission.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
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