Overview of Texas Suppressor Law
Suppressors have enjoyed some hot-button controversy across the country. Some states, like California, have clamped down on suppressors, taking issue with their silence and association with criminal activity, and effectively banning them. Other states like Texas have relaxed their suppressor laws, seeing relatively recently that suppressors are not inherently problematic. They can come with their own issues, but they are not by default linked to crime or illicit activity. In 2015 Texas passed a bill allowing for the sale of Texas-made suppressors without the need to pay a tax stamp to the ATF , and in 2017 passed another law allowing Texas residents to purchase suppressors from Texas manufacturers without paying the federal tax stamped required by the National Firearms Act (NFA). This diminished the tax stamp fees that a Texas resident getting a suppressor would need to pay. A Texas resident purchasing a Texas made suppressor may be able to avoid the tax stamp fee entirely, while the tax stamp fee will still exist for Texas residents getting suppressors from outside Texas, and any non-Texas resident getting a suppressor. These suppressors would still need to go through the long NFA process.
Federal Law vs. State Law- Potential Conflicts
Federal law determines the legality of suppressors in most states including Texas. Under federal law suppressors are legal to own in all 50 states without the need for a permit, tax stamp, background check, or other waiting period. That is, if the suppressor is purchased within the law. Under federal law it is illegal to buy or sell an unregistered suppressor which may be punishable with a prison term of up to 10 years and an up to $10,000 fine.
Texas law on suppressors state that suppressors are expressly subject to the state’s prohibition on illegal weapons. Under Texas law it is a class A misdemeanor which could result in up to a year in jail and a fine up to $4,000. Generally the penalty remains at that level unless there are additional violations involved.
The conflict between federal and state law comes into play in section 486.616 of the Texas Government Code, where it reads: "a state agency, locality, [or] public campus … may not… [e]nforce, attempt to enforce, administer, or cooperate with the enforcement of any federal law, rule, or regulation relating to a suppressor." Federal law however does not require isolation or nullification of federal law. It simply states the terms under which a suppressor is able to be owned by an individual. The two laws can therefore coexist in Texas because the Texas Law nullifies one portion of a federal law while keeping the other.
Texas-Made Suppressors
The idea behind the ability to purchase a "Texas-made" suppressor is that suppressors can be made mostly on the Texas side of the state line that separates Texas and Oklahoma. The intention is that the suppressor would then be more in the nature of a totally Texas-made product than a commercially made suppressor that is assembled from parts that have been manufactured and/or assembled outside Texas. There are some considerations as to what is necessary for a suppressor to be deemed a Texas-made suppressor, such as that it must be made primarily of steel and or aluminum. Of course, there is the obvious additional restriction in that the suppressor must be manufactured in such a way that it can accept a firearm barrel (i.e., through which the firearm can be fired). For example, should a person put a suppressor on a rifle, the rifle must be a centerfire rifle. A 22 LR rifle can use a suppressor, but a cap gun cannot accept a suppressor.
As mentioned earlier, for a suppressor to be a Texas-made suppressor, it must be made primarily of steel and or aluminum. Other alloys may make the suppressor but the suppressor needs to be made of steel and/or aluminum such that it is not simply a plastic suppressor. Plastic suppressors may be okay per the BATFE, but to the extent that there is any intent to sell military or police models of suppressors, it just wouldn’t do for a Texas-made suppressor to be made of plastic.
In addition to being made out of steel or aluminum, the suppressor must meet a minimal 15 – 25% Texas made requirement under Texas law. The bottom line is this Texas-made suppressors are aiming for a suppressor that meets Texas and federal requirements so that Texans can shoot with total compliance with both federal and local laws. The main point is this Texas-made suppressors are made to be a Texas engineered, Texas made product that complies with Texas law.
Suppressor Ownership Rule Requirements
Should an individual wish to choose to go the NFA route for purchasing a suppressor then they would complete the following requirements; First, you need to complete the ATF Form 4 "Application for Tax Paid Transfer". The ATF requires two forms of personal identification (I226 or I212, and copies of the ID cards), fingerprint cards with 2 forms of fingerprints in duplicate, photocopies of your Trust form a check for $200 dollars made out to the Bureau of Alcohol, Tobacco, Firearms, and Explosives. It will take the ATF anywhere from 5 months to one year to process the Form 4 application. Once it is approved and sent back to the applicant then the applicant may place their order with that manufacturer and the purchase will now be considered in compliance with federal law. Also, your trust can be used to purchase any NFA item (legally created by United States Law). This also includes Full Automatics, Short Barreled Rifles (SBS), Short Barreled Shotguns (SBS), and Silencers (NFA weapons). The only other thing to remember is that silencers are registered under the GCA (Gun Control Act – Title 15, Chapter 39) and not the NFA (National Firearms Act – Title 26, Chapter 53). In order for a NFA weapon to be sold it must go through a dealer. The dealer is the one to submit the Form 4 application to the ATF and once it has been approved, may complete the sale to the purchaser.
How This Affects Firearm Owners and Manufacturers
The new Texas law will have a significant impact on gun owners and manufacturers alike. The immediate effect for gun owners is the ability to purchase and own suppressors, as well as the knowledge that they will not be criminally liable under state law for doing so. To the extent they have to worry about criminal liability, they should only need to worry about federal liability if they follow the new Texas law and federal law properly.
For manufacturers, and to a lesser degree dealers , the new law opens up a new avenue for doing business. Under federal law, suppressors are heavily regulated and carry several requirements for registration and payment of a large tax. However, the Texas law exempts the weapon from state law because there will be no transfer of possession in Texas. This means that a Texas manufacturer, while still subject to federal law, is no longer subject to state law. As such, without any change in its federal obligations a Texas manufacturer can now produce a suppressor with no state obligations whatsoever.
Controversy and Opposition
Not surprisingly, the passage of HB 1805 was not without controversy. Numerous advocacy groups representing gun control or gun safety had some strong opinions about the bill in the weeks leading up to its passage. Their general argument is that the passage of Chapter 77 would lead to an increase in noise pollution due to misused suppressors. There was almost an effort to create the impression suppressors are already legal in Texas, and their practicality and ease of use will lead to an uptick in crime – as if the criminals were just sitting around waiting for suppressors to come unto the marketplace to enact their nefarious plots.
Interestingly enough, there were legal challenges aimed at preventing HB 1805 from becoming law. One organization, The Coalition of New Mexico Taxpayers, actually filed a writ of mandamus designed to stop the Texas legislature from taking up HB 1805. The crux of the argument was that HB 1805 was too similar to a then-unpassed bill in New Mexico: SB 171. In particular, the Coalition argued that the new Texas law would prevent Texas from using 4473s, which could be used to identify illegal purchasers under the Gun Control Act of 1968 (the framework of federal law that governs the sale and transfer of firearms). Put another way, the Coalition argued that Chapter 77 would effectively prevent Texas from enforcing federal laws on quieting devices.
That contention, however, did not pass judicial muster. In fact, the United States Supreme Court in Bourjaily v. United States made clear that legislative intent trumps technical interpretation of state statutes. In Bourjaily, the Supreme Court ruled that state law in West Virginia, which that state argued prohibited the introduction of hearsay into evidence, did not apply in federal prosecutions where federal law permitted the introduction of such evidence under certain conditions. Following that precedent, the Texas Court of Appeals rejected the Coalition’s argument that Chapter 77 should be invalidated and dismissed the case.
Future Texas Suppressor Legislation
The recent legislative activity in Texas has some law-abiding residents concerned about the future of suppressor use in the Lone Star State. Notably, the enactment of SB 550, which was signed into law by Governor Abbott on June 17, 2015, exempted Texas-made suppressors from NFA provisions. Remarkably, it also authorized Texas law enforcement and criminal justice agencies to take control of and destroy federal agents’ unlawfully possessed suppressors, and permitted a district attorney to sue such agencies in a court of law if a federal agency unlawfully took possession of one. That provision, however, was removed from the bill before it was sent to the governor.
Although SB 550 was a minor victory for gun rights proponents, that victory may be short-lived. Predictably, the same producer of SB 550, state Senator Brian Birdwell, plans to "request [the bill] again" next year. Given that the current Republican-controlled Texas legislature has voted twice this calendar year for the bill, the odds are good that it will probably be back.
To further support their efforts, Texas legislators may point to the work of their cousins across the pond: last March, in response to similar bills signed into law in Texas and other states, a three-judge panel of the 5th Circuit U.S . Court of Appeals issued a ruling that upheld Louisiana’s right to protect its citizens from federal law and the law’s encroachment upon their state right to manufacture firearms. Because Louisiana’s statute mirrored the language of SB 550, the 5th Circuit’s ruling bodes well for the future of the Lone Star State’s rights under SB 550.
Likewise, another positive indication may be the fact that the Texas Public Safety Commission, along with the Department of Public Safety director Steven McCraw, recommended that the Texas legislature act to ratify SB 550. Suggestively, the Department of Public Safety agreed that even limited California-style auditing would be too much of a burden for the state’s roughly 9,000 federally licensed firearm dealers (FFLs) to bear.
Next year’s election may also expedite SB 550’s success. While state legislators have spent hours of debate over SB 550, the Democrats running for the presidency have been curiously silent on the issue of suppressors. Even presumptive nominee Hillary Clinton has failed to offer voters a position on their legal rights with respect to suppressor use.
While gun rights proponents can’t be certain about the future of suppressors in America, one thing is for sure: Texas legislators are determined to go Texas-tough on the matter.