Critical Omissions Plague Texas Gun Background Check Law

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.

The widespread reporting failures are all the more important today because Congress passed legislation last month that requires checks of various state databases that should include juvenile mental health records for would-be gun buyers under 21. The bipartisan measure was passed swiftly after the May 24 school shooting in Uvalde that left 21 dead.

Currently, Texans who were involuntarily committed to a mental institution as minors aren’t ending up in NICS, so as soon as they turn 18 they can walk into a federally licensed gun shop and legally acquire a rifle because they will pass the required background check, assuming they do not have criminal records. (Americans typically have to be 21 to purchase handguns.)

County and district court clerks and juvenile probation officials in five of the state’s six largest counties, as well as Uvalde County, told the news organizations they weren’t reporting juvenile mental health commitments, either as a matter of policy or because they didn’t think they had to. These include Harris, Tarrant, Bexar, Travis and Collin.

“In light of what is happening too many times these days and in recent years, it bothers me tremendously to hear that this law may not have been implemented in the way that it clearly was intended to be implemented,” Naishtat said in an interview. “That legislation with respect to juveniles is probably more important today than ever.”

The gap came to light only after the Uvalde massacre, when ProPublica and the Tribune started asking questions about reporting requirements for juveniles. The shooter was an 18-year-old who had passed a background check before buying two AR-15 semi-automatic rifles, despite what officials have described as a troubled mental health history. It is unclear if he was ever committed.

Officials with the Texas Department of Public Safety, which under the 2009 law is charged with collecting mental health records from local courts and passing them along to the FBI for inclusion in NICS, said that the agency routinely reports juvenile criminal records but not juvenile mental health records. Local courts do not provide DPS with juvenile mental health data, agency officials said.

“There are a lot of protections that surround mental health data and juvenile mental health data,” ML Calcote, assistant general counsel for DPS, said in a statement.

Experts, including county juvenile probation department officials and a former longtime juvenile judge, say the 2009 state law did not take into account the complexities of the juvenile justice system in Texas, which places strict limits on what records can be reported.

Following questions about reporting requirements from ProPublica and the Tribune, the state agency tasked with helping local courts abide by new laws moved to update its official guidance to clerks to make clear that the mental health reporting requirement applies to juveniles as well. A spokesperson for the Office of Court Administration shared a draft version of supplementary guidance that she said the office would put on its website and incorporate into future manuals.

ProPublica and the Tribune presented a summary of their findings to the offices of Lt. Gov. Dan Patrick and House Speaker Dade Phelan, who control the legislative agenda. They did not respond to questions about whether the issue is a priority for discussion in the next legislative session, which begins in January.

Dysfunctional Reporting

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.

In Uvalde County, for instance, Chief Juvenile Probation Officer Mary Lou Ruiz said “there’s no specific way for us to report that to DPS.” When asked why, Ruiz cited limitations of electronic reporting tools.

Travis County Probate Judge Guy Herman, who was a driving force behind the 2009 law and also chaired the OCA task force, said that his court has reported juvenile mental health commitments to DPS in the past, but that it hasn’t had such a case in several years. Juvenile department and district clerk officials in the county say they operate under the belief that state guidelines don’t require juvenile mental health reporting, according to a county spokesperson.

In Harris County, which oversees the largest juvenile justice system in Texas, district clerk spokesperson Al Ortiz told the publications no juvenile mental health records are reported to the state, citing what he described as long-standing guidance from the OCA and DPS.

On the other hand, the Dallas County District Clerk Felicia Pitre said her office reports juvenile mental health records to DPS, in accordance with state law. Pitre declined to say how many commitments have been sent. She did not respond to a request for comment about DPS’ statement that Texas courts are not reporting juvenile mental health records.

LaVoie, the OCA spokesperson, said in an email that the office communicated to clerks that they had to report certain juvenile mental health commitments to DPS but declined to say when or provide specifics about its messaging. DPS’ press office has not responded to questions about what reporting guidance it has provided to clerks.

Juvenile advocates and gun rights groups have urged caution in the reporting of juvenile records, calling for avenues to allow young adults to have their gun rights restored.

And mental health advocates have warned against using mental illness as a scapegoat when it comes to gun violence. “A vast majority of firearm violence is not attributed to mental illness,” the American Psychiatric Association said in a statement after the Uvalde shooting. “Rhetoric that argues otherwise will further stigmatize and interfere with people accessing needed treatment without addressing the root causes of firearm violence.”

But recent shootings have again raised questions about whether it is too easy for young people with histories of mental illness to obtain firearms.

As in Texas, questions emerged about New York’s mental health reporting laws following the May 14 supermarket shooting in Buffalo that killed 10 people, most of them Black.

The gunman, an 18-year-old New York man, had been taken into custody as a juvenile for a psychiatric evaluation after he threatened to commit a murder-suicide. But under the state’s mental health reporting law, because the gunman wasn’t ordered into treatment, the psychiatric evaluation alone did not trigger a report to the background check system. A 2013 New York law requires mental health professionals in the state to report patients who in their “reasonable professional judgment” are likely to harm themselves or others, but no such report was made.

It’s unclear whether Texas’ law would have prevented the Uvalde gunman from purchasing two semi-automatic rifles at a federally licensed local gun shop.

DPS has said the 18-year-old Uvalde shooter, who killed 19 children and two teachers, didn’t have a mental health record, but agency officials also have consistently added a caveat: “That we know of.”

Critical Omissions Plague Texas Gun Background Check Law 1

A memorial for the 21 victims of the May 24 school shooting in Uvalde.


Credit:
Evan L’Roy for The Texas Tribune

In news reports, the gunman’s acquaintances have alleged that he had a history of truancy, cruelty to animals and violence at home and at school.

Texas Sen. John Cornyn, the GOP negotiator in the recently passed federal legislation, has implied the shooter had mental health issues as a juvenile.

“Enhanced background checks of juvenile court, police, and mental health records likely would have disclosed what everyone in the community knew,” he wrote on Twitter on June 12. “The shooter was a ticking time bomb.”

Eliminating Ambiguity

The new federal legislation was mostly met with praise from gun control groups, especially for its provisions on juvenile records.

Lindsay Nichols, federal policy director with the Giffords Law Center, which is the legal arm of a national gun safety group created by Gabrielle Giffords, a former Democratic congresswoman who survived a shooting in 2011, said the measure now gives the background check system enough time to “make an accurate determination about whether the person is eligible to purchase guns.”

The new federal law gives the FBI up to 10 business days — seven more than are allotted under current rules — to investigate if an initial background check on a would-be firearm purchaser under 21 flags potentially disqualifying juvenile records. If the agency doesn’t find anything during that time frame, dealers are legally able to make the sale. Any mental health commitments ordered before the person is 16 would not disqualify them from purchasing a firearm.

The law also directs federal investigators conducting background checks to contact local law enforcement agencies and state-level custodians of mental health records, as well as search juvenile criminal history databases, for information that would disqualify a person from purchasing a firearm. Yet as it stands today in Texas, checks with such entities would fail to reveal many court-ordered juvenile commitments.

While most states now require some level of mental health reporting, gun control advocates like Giffords and Everytown for Gun Safety don’t track how many states require searches of juvenile mental health records before gun purchases. An FBI spokesperson said the bureau doesn’t keep track of it either. According to the Giffords Law Center, the 13 states that carry out their own background checks tend to conduct more comprehensive searches on juvenile records. And several of those so-called “point of contact” states appear to offer clearer guidance on the issue.

Like Texas, Florida has a mental health reporting law that doesn’t explicitly mention juveniles. But a spokesperson for the Florida Department of Law Enforcement, David Fierro, made clear that the law applies to people who are under 18.

“There are no age limitations or exemptions. All court orders are required to be submitted,” he said. “The subject of these orders is disqualified from the transfer of a firearm.”

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.”

Asked if more clarity from the Legislature would make the law more effective, LaVoie, the OCA spokesperson, said: “Eliminating ambiguity is always helpful.”