Texas is unlikely to adopt key provision of bipartisan gun bill — a red flag law to take guns away from people deemed dangerous

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The bipartisan gun bill that is on a fast track through Congress and backed by U.S. Sen. John Cornyn includes new state grants to incentivize red flag laws, which allow judges to temporarily seize firearms from people who are deemed dangerous.

That means it’ll be up to states as to whether they want to take advantage of one of the key provisions of the landmark gun legislation. But despite last month’s Uvalde school shooting being the inspiration for the bill, Texas is unlikely to get on board.

Red flag laws likely remain a nonstarter among Republican leaders in Texas, where Gov. Greg Abbott already faced a conservative backlash after he asked the Legislature to consider them four years ago.

Lt. Gov. Dan Patrick, who oversees the Senate and wields tremendous sway over what legislation is considered, indicated Wednesday he still opposes such an effort.

“After the Santa Fe shooting, we had the same move to do this and we did not support it,” he said in a radio interview. “I did not support [that], the Senate did not support that.”

Patrick said that if he were in the U.S. Senate, he would have been among the 36 Republicans — including Texas’ junior senator Ted Cruz — who sided against the bipartisan gun bill in an initial vote Tuesday. Patrick added that he was “very, very concerned about that and where that goes.”

Abbott did not respond to a request for comment on the potential for red flag laws in Texas under the federal proposal. State House Speaker Dade Phelan declined to comment. Neither has publicly suggested red flag laws as a legislative solution in the wake of the Uvalde shooting, and the opposition of the Patrick-led Senate all but dooms the prospect.

Cornyn, the lead Republican negotiator on the legislation, has had to walk a political tightrope. He was loudly booed last week while addressing the Texas GOP convention, where delegates approved a resolution rebuking him over the bipartisan gun talks, citing the party’s opposition to red flag laws.

Cornyn previously told The Texas Tribune that the gunmen in Uvalde and at the 2012 Sandy Hook Elementary School shooting in Connecticut both “have a pretty recognizable profile” and should not have had access to firearms.

The legislation, titled the Bipartisan Safer Communities Act, is the most significant congressional action taken on gun control in decades. It includes $750 million that states can use to implement and maintain red flag programs. Generally, red flag laws allow the authorities to ask a court to take guns away from someone they believe is an imminent danger. In some cases, people beside the police — family members, for example, can petition a court.

But the funding could also be used for other crisis-intervention programs in states that do not currently have red flag laws or are unlikely to enact them anytime soon — like Texas.

Cornyn has emphasized that distinction while shepherding the bill.

“Some of our colleagues wanted to focus this money solely on the 19 states that passed some form of red flag law, and frankly, that’s the choice that’s up to the state,” Cornyn said Tuesday on the Senate floor. “But we are not introducing a national red flag law, but we are providing the availability of law enforcement-related grants to crisis intervention programs, whether you adopted a red flag program or not.”

Besides red flag laws, the funding can go toward mental health courts, drug courts, veterans courts and assisted outpatient treatment courts. Assisted outpatient treatment is community-based mental health treatment ordered by a court. Cornyn said on the Senate floor last week that assisted outpatient treatment is “one great example” of how states could use the funding rather than for red flag laws.

In addition to incentivizing red flag laws, the legislation also would do things like beef up background checks for people younger than 21 and clarify who needs to register as a federal firearms dealer. It also closes the “boyfriend loophole,” which refers to the fact that federal law bars firearm purchases for those convicted of domestic violence against someone they’re married to, but left out dating partners.

The National Rifle Association came out against the bill Tuesday, saying in part that it would “use federal dollars to fund gun control measures being adopted by state and local politicians.” At the state level, gun rights advocates remain on high alert about any red flag proposal.

“Anything that eliminates due process we will be fighting tooth and nail against,” said Andi Turner, legislative director of the Texas State Rifle Association.

The anti-Cornyn resolution that Texas GOP convention delegates passed was unequivocal about red flag laws. It said they “violate one’s right to due process and are a pre-crime punishment of people not adjudicated guilty.”

Far-right state Rep. Bryan Slaton was the most explicit in a statement Wednesday that accused Cornyn of being a Republican traitor. The Royse City legislator vowed to “​​ensure Texas never even considers taking [Cornyn’s] bribe to pass red flag laws or any other gun control policies.”

Abbott already got a taste of the sensitive politics around red flag laws following the 2018 Santa Fe school shooting, where 10 people were killed 13 others wounded. The governor then released a school safety plan that included a call for the Legislature to “consider the merits of adopting a red flag law.” But before long, the idea ran into stiff intraparty opposition and Abbott found himself on the defensive, arguing that he had not personally endorsed red flag laws by requesting that lawmakers explore them.

Patrick ultimately helped put the nail in the coffin, releasing a statement at the time in which he said he has “never supported these policies, nor has the majority of the Texas Senate.” A few days later, Abbott acknowledged there had been a “coalescence” against red flag laws and has since steered clear of them.

Red flag laws are nonetheless popular with Texas voters. A poll released Tuesday found that 75% of the state’s voters support laws that “give family members or law enforcement a way to ask a judge to issue an order temporarily removing guns from someone who poses a violent threat to themselves or others.” The survey was conducted by Third Way, a centrist think tank, and GS Strategy Group, a GOP polling firm.

“I think it would be, first of all, difficult for the state to not take advantage if this gun safety bill actually passes, and it looks like it’s going to, based on everything I’m seeing,” said state Rep. Lina Ortega, D-El Paso. “How can Texas refuse to actually take some of that money and use it, especially with all the gun violence that has taken place in our state?”

Ortega was among the El Paso lawmakers who had hoped the state would do more to combat gun violence after the 2019 massacre at a Walmart in the city. But they were greatly disappointed as the Legislature went in the opposition direction last year, passing laws that expanded gun rights like permitless carry of handguns.

“Now we’re talking about 19 innocent children that were massacred and two teachers,” Ortega said. “Maybe seeing what’s occurring on the federal level, there’s gonna be reconsideration on the state side as to the approach they need to take.”

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