Texas Gun Background Checks Omit Mental Health Records for Minors

Gun and bullets confiscated by Texas law enforcement

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The Texas Tribune reports that, in 2009, state lawmakers attempted to require that all court-ordered mental health hospitalizations be reported to a federal system for gun background checks – in an effort to help keep guns out of the hands of this population.

While juveniles were not left out of this requirement, they were not specifically mentioned, and it has led to concerns – especially in light of the Uvalde shooting deaths. Many believe that this tragedy could have been prevented if this oversight or omission regarding teen mental health records had received earlier attention.

Crimes involving guns can be very serious. If you are facing charges of gun-related crimes (or any other criminal charge), you need skilled legal representation. Contact a Killeen criminal defense attorney to start building your strongest possible defense.

The Backstory

In 2009, a member of the Texas Legislature – Elliott Naishtat – moved a bill forward that he believed would require the state to report all court-ordered mental health hospitalizations – regardless of the person’s age – to the FBI’s National Instant Criminal Background Check System (NICS).

At the time of Naishtat’s push, it had been almost two years since a student with a long history of serious mental health concerns killed 32 people in a shooting spree on the campus of Virginia Tech.

The Texas legislator’s motivation was Texas’s vulnerability to similar mass shootings – due to its lack of required reporting for court-ordered mental health hospitalizations. Federally licensed gun dealers are all obligated to check NICS before selling anyone a firearm.

Thirteen years later, a flaw in the very legislation Naishtat helped to pass has made itself glaringly apparent – the names of minors who are court-ordered into mental health hospitalizations are not being reported. This issue is especially troubling in the face of the spate of mass shootings the State of Texas (and the nation at large) has experienced in recent years.

Slipping through the Cracks

Although the original bill requires reporting whenever someone receives court-ordered inpatient treatment for mental health – regardless of his or her age – an investigation into the law’s application finds that minors have not been included in this mandatory reporting. The glitch stems from problems in all the following areas:

  • Ambiguity in relation to how the law is written

  • Ambiguity in relation to guidance from the state

  • Conflicts with other state laws in relation to juvenile rights

Post-Uvalde Requirements

The systematic failure to report the court-ordered hospitalization of minors has become a glaring problem in the aftermath of the Uvalde school shooting, which left 21 people dead.

Congress has since passed national legislation – called The Bipartisan Safer Communities Act – that, among other things, requires mandatory checks of specific databases in each state for anyone under the age of 21 who is attempting to purchase a gun. And these requirements include those juvenile mental health records that may or may not show up in Texas’s reporting.

The Concern

The problem is that when a Texas minor’s mental health issues lead to an involuntary commitment, the state does not share that record with NICS. This means that when the minor in question reaches the age of 18, he or she can purchase a gun from a federally licensed gun dealer without being flagged (as long as he or she does not have a criminal record).

Failure to Report

The Texas Tribune reports that the district court and county court clerks – as well as juvenile probation officers – in most of the state’s largest counties have not been reporting juvenile commitments as a matter of protocol (and in the absence of a direct requirement).

Naishtat has shared his own concerns regarding why the 2009 bill was not “implemented in the way that it was clearly intended to be implemented,” and went on to say that the “legislation with respect to juveniles is probably more important today than ever.” The law requires all mandatory mental health hospitalizations to be reported – regardless of age.

The Reporting Gap

The age-based gap in state reporting of court-ordered mental health hospitalizations came to light only after the Tribune and ProPublica began looking into the state’s juvenile reporting requirements (after the Uvalde shootings).

The shooter in this massacre was an eighteen-year-old male who passed the background check to purchase two semi-automatic rifles in Texas. Because reporting is spotty at best regarding involuntary mental health commitments for minors in Texas, it is unclear whether the shooter had ever been committed by the court or experienced verified mental health concerns.

The Texas Department of Public Safety

The Texas Department of Public Safety (DPS) is tasked with providing the FBI with the mental health records it collects from courts throughout the state, which are included in NICS. DPS officials do routinely report on juvenile criminal records, but not juvenile mental health records. Further, DPS does not receive mental health information from the courts.

Experts on the juvenile justice system in Texas share that juveniles are entitled to considerable protections related to their mental health data and that the state’s 2009 law failed to address the innate complexities of these rights in terms of which records can be reported.

The Office of Court Administration (OCA) is updating its official guidance for court clerks to help ensure that mandatory mental health reporting applies to minors as well as adults moving forward.

Consider the following statement by the OCA spokesperson: “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 in the manual.”

Mental Health Reporting for Adults

While Texas’s record for reporting requirements regarding the mental health records of minors is subpar, it’s been far more successful regarding adult records. By the end of 2021, NICS included more than 332,000 such records, which is higher than all but five other states.

The Longarm of the Law

One of the primary reasons that juvenile mental health records are not being reported is the fact that they are highly controlled under state law (unlike their adult counterparts). In fact, releasing a minor’s records unlawfully can lead to criminal penalties.

Because the law requiring reporting that went into effect in 2009 did not specifically address the legal issues related to juveniles, concerns about remaining on the right side of the law very likely played a primary role in the resulting confusion and the paltry reporting on teen records.

There are considerable rules and regulations on the books about health records and minors' rights, and when the topics converge, erring on the side of caution is not uncommon.

The Juvenile Code

According to many at the state level, the 2009 law fails to consider nuanced information in the state’s juvenile code.

While the law calls for mandatory reporting of all involuntary commitments, this leaves out all those teens who receive inpatient mental health treatment that is negotiated by mental health professionals on their cases (instead of receiving court-ordered inpatient treatment).

Further, many juvenile judges interpret the 2009 law to address the mental health commitments of juveniles who are already locked up – not the mental health commitments of those who are ordered into treatment upon first entering the juvenile detention system.

In the end, the vast majority of juveniles who experience mental health commitments do not correspond with the requirements laid out in the 2009 reporting law.

Interest Groups Weigh In

Advocates of gun rights always urge caution when it comes to curtailing gun rights, and they take the same stance when it comes to juveniles. Their goal is to help ensure that an avenue for restoring the gun rights of young adults who were previously barred from ownership remains open.

In addition, mental health advocates have spoken out against equating mental illness with gun violence. According to the American Psychiatric Association, the preponderance of gun violence is not associated with mental illness. To argue otherwise, they point out, can do more harm than good for both mental health awareness and rooting out the true cause of gun violence.

The Federal Mandate

The recently passed federal legislation regarding mandatory mental health reporting has received mostly positive feedback from groups that are intent on gun control. A good deal of the praise focuses on its intent in terms of juvenile records.

The new federal law will ensure that the FBI can take up to ten full business days (instead of the three days currently allotted) to determine if there are any juvenile records on the books that would trigger disqualification for those under the age of 21 attempting to purchase firearms. If the FBI doesn’t find any records within ten days, the dealer can move forward with the sale.

It is important to point out, however, that commitments prior to the age of 16 do not disqualify gun purchases.

Checking with Local Law Enforcement

The 2022 federal law allows those federal agencies conducting gun background checks to search databases for juvenile criminal histories and to reach out to state regulators of mental health records and local law enforcement agencies for any disqualifying information.

However, the way the law currently stands in the State of Texas, this brand of investigation does not rise to the level necessary to reveal most court-ordered juvenile commitments.

Most states do require mental health reporting at some level, but the majority of gun control advocate agencies do not track the number of states that require juvenile searches prior to purchase, and the FBI does not either.

There are thirteen states, called “point of contact states,” that carry out their own statewide background checks, and these states are generally more thorough when it comes to juvenile searches. These states also provide more straightforward guidance on the matter.

Gun Laws in Texas

According to The New York Times (regarding Texas), “lenient gun laws are woven into the fabric of the state.” Texas takes pride in having some of the least-restrictive gun laws out there, and more than a million of its citizens own guns.

In fact, in 2021, the state did away with pesky requirements related to obtaining a license to carry. This change means that virtually anyone who is over the age of 21 and is not barred from gun ownership in the first place can carry a gun, which is known as “constitutional carry.” Texas also ousted belt and shoulder harness restrictions, but holsters remain a requirement.

The Court of Public Opinion

The Times points out that the state’s decision to ease requirements for gun licensing was not entirely well received. In a comprehensive poll conducted by the University of Texas in conjunction with The Texas Tribune, 60 percent of voters in the state voiced their opinion that an adult should not be allowed to carry a gun without obtaining a license.

Many in law enforcement have also been very vocal about the state’s loose interpretation of gun control – especially in light of the recent dramatic uptick in gun violence.

An Experienced Killeen Criminal Defense Attorney Can Help

If you are facing a gun possession charge – or any criminal charge – in the State of Texas, the stakes are high, and you are well advised to have professional legal guidance in your corner.

Brett Pritchard at The Law Office of Brett H. Pritchard in Killeen, Texas, is a formidable criminal defense attorney who takes great pride in his impressive track record of successfully guiding cases like yours toward advantageous outcomes. We are on your side and here to help, so please do not wait to contact us online or call us at (254) 781-4222 for more information today.

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