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The gaps in Texas’ background check law

From Pro Publica:

In the spring of 2009, Elliott Naishtat persuaded his colleagues in the Texas Legislature to pass a bill that he believed would require the state to report court-ordered mental health hospitalizations for Texans of all ages to the national firearms background check system.

Nearly two years had passed since a student with a history of serious mental illness had gone on a deadly shooting rampage that left 32 dead at Virginia Tech. And Naishtat, then a Democratic state representative from Austin, argued that Texas was as vulnerable as Virginia had been to such mass shootings because it didn’t require the reporting of involuntary mental health commitments to the FBI’s National Instant Criminal Background Check System, known as NICS. Federally licensed dealers are required to check the system before they sell someone a firearm.

“This bill will ultimately save lives, and I hope you’ll give it your most serious consideration,” Naishtat said when he introduced the measure.

But 13 years after the legislation became law, following a string of mass shootings carried out by troubled young men, an investigation by ProPublica and The Texas Tribune has uncovered a major gap in the law and its implementation.

Despite language in Naishtat’s bill that says local courts should report to the state’s top law enforcement agency any time a judge orders any person, regardless of age, to receive inpatient mental health treatment, the news organizations found that they are not reporting juvenile records because of problems with the way the law was written, vague guidance from the state and conflicts with other Texas laws.

[…]

When it comes to the reporting of adult mental health records, the Texas law has been highly effective. By the end of 2021, the state had sent more than 332,000 mental health records — the sixth-highest number in the country — to the national background check system, according to FBI data.

Unlike adult records, juvenile records are tightly controlled under state law, which includes criminal penalties for officials who release them unlawfully. That has likely contributed to widespread confusion about the reach of the 2009 law, which does not differentiate between adults and minors, said Dru Stevenson, a South Texas College of Law professor whose research focuses on gun violence and regulation.

“Anybody dealing with either health records or juveniles are super skittish about preserving privacy and confidentiality,” he said.

Mike Schneider, a former Harris County juvenile court judge, said the 2009 law fails to account for nuances in the juvenile code. For example, the law requires the reporting of all court-ordered mental health commitments. But Schneider and other juvenile officials say that in many cases juveniles end up in inpatient treatment not through a judge’s order, but via treatment plans agreed to by mental health professionals working on their cases. Additionally, Schneider said he interprets the law to directly address only the mental health commitments of juveniles already in lockup, not those first entering the system.

As a result, he estimated that some 99% of juvenile mental health commitments in the state are not the result of the kinds of judicial orders spelled out in the 2009 law.

“It’s just a really, really, really tiny sliver and would miss most of the people who are juveniles who have court-ordered mental health services,” he said.

The Office of Court Administration convened a task force of clerks, judges and various state officials more than a decade ago to figure out how to increase the number of all mental health records being sent to DPS.

The resulting report, published in 2012, found that “DPS lacks the resources to assist the district and county clerks with reporting mental health information.” It made a number of recommendations for ensuring better reporting across the state, including that OCA distribute a reporting manual to clerks detailing the law’s exact requirements. But neither the report nor the resulting manual addressed the reporting of juvenile records.

The agency has since moved to remedy that.

“Recently, because of increased questions, we decided to update the quick reference table to make it even more clear that juvenile records should be included under those provisions, and an updated FAQ section will be going in the manual,” spokesperson Megan LaVoie wrote in an email last month.

Amid a lack of clear direction, courts across the state aren’t following the law as Naishtat intended.

[…]

Schneider, the former Harris County juvenile judge, said the Legislature should address the narrowness and ambiguity that has resulted in the widespread failure to report juvenile mental health records, though he said such an effort will require lawmakers to answer difficult questions about how to handle sensitive records. In his mind, the law should cover young Texans with troubling histories of bullying, animal cruelty and sexual assault, behavior that foreshadows what experts call “future dangerousness.”

“What do you do with kids who have tortured a cat or a dog or done something really cruel, sexually or not, to another kid?” he said. “Those are, I think, the ones that people really worry about, because that seems to be so strongly correlated with really, really bad outcomes in the future.”

This is a long story with a lot of detail, so go read the rest for yourself. I think I’ve captured the main points in my excerpts, so the real question is whether the Lege is even interested in trying to address the gaps in that law. On that score, there was no comment from either Dan Patrick or Dade Phelan, so at the least there’s a lot of work to be done to even get it on the radar. And in keeping with what I’ve suggested before, this isn’t a whole solution but a part of one. Combining a fix to the Naishtat law with a ban on most types of gun purchases by anyone under the age of 21 would be a start. But first, the will to act has to be there. We can have a say in that this November.

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