Opinion
05-22-00878-CV
03-19-2024
IN RE THE STATE OF TEXAS FOR THE BEST INTEREST AND PROTECTION OF J.M.P. JR.
On Appeal from the Probate Court No. 3 Dallas County, Texas Trial Court Cause No. MI-92-1623
Before Justices Partida-Kipness, Reichek, and Miskel
OPINION
EMILY A. MISKEL, JUSTICE
J.M.P. Jr. appeals the trial court's order denying his petition to remove his firearms disability and restore his right to purchase and possess firearms. The Dallas County District Attorney's Office represented the State in opposing J.M.P. Jr.'s petition.
J.M.P. Jr. is a prospective gun purchaser who, thirty years ago, before his senior year of high school, was involuntarily committed to a mental health facility for a week to ten days. Since that time, J.M.P. Jr. has been stable, married for over fourteen years with three children, industrious in business, and involved in his church and multiple local charities. J.M.P. Jr. learned of his firearms disability when he attempted to purchase a hunting rifle. As a result, he filed a petition seeking relief from his firearms disability and restoration of his right to purchase and possess firearms under Texas Mental Health Code (TMHC) § 574.088. See Tex. Health & Safety Code Ann. §§ 571.001, 574.088. The State opposed his petition.
The THMC is Title 7, Subtitle C of the Texas Health and Safety Code, encompassing Chapters 571- 79 of that Code.
On appeal, J.M.P. Jr. raises two issues arguing that: (1)(a) the trial court abused its discretion by denying his petition, and (b) the federal and state relief-from-disabilities statutes are unconstitutional as applied; and (2) the trial court erred when it failed to make findings of fact and conclusions of law.
We conclude the trial court abused its discretion by denying J.M.P. Jr.'s petition to remove his firearms disability, because J.M.P. Jr. conclusively established every element required to show that he was entitled to relief under § 574.088 of the TMHC. We reverse the trial court's order and render an order that: (1) states that J.M.P. Jr. qualifies for relief from a firearms disability; (2) declares that J.M.P. Jr. is not a prohibited person under 18 U.S.C. § 922(g)(4); and (3) restores J.M.P. Jr.'s right to ship, transport, possess, or receive firearms and ammunition.
We publish this opinion because this case involves issues of first impression. See Tex. R. App. P. 47.4. Relief from a firearms disability involves the intersection of federal and state laws and raises issues of first impression in this Court as well as the State of Texas with respect to the proper application of § 574.088 of the TMHC and related federal statutes.
I. Factual and Procedural Background
The following facts are based on the pleadings and the evidence adduced at the hearing on J.M.P. Jr.'s petition.
The record in this case was filed under seal. We must hand down a public opinion explaining our decisions based on the record, which we cannot do without mentioning certain specific facts. Kartsotis v. Bloch, 503 S.W.3d 506, 510 (Tex. App.-Dallas 2016, pet. denied) (citing Tex.R.App.P. 47.1, 47.3, and Tex. Gov't Code Ann. § 552.022(a)(12). We have nonetheless strived to preserve the confidentiality of the materials by avoiding discussion of details where possible and making some portions deliberately vague. See id.
A. The 1992 Commitment
J.M.P. Jr. had always excelled in school and sports, but around age seventeen in his junior year of high school, his personality changed. He started failing classes and lost interest in things. J.M.P. Jr. went to outpatient counseling, but it did not resolve his issues. In one incident where J.M.P. Jr. was not getting along with his parents, he ran away from home and went to stay with a friend a mile away for a few days. J.M.P. Jr. would not talk to his father about what had changed and would not agree to a mental health evaluation. J.M.P. Sr. believed that J.M.P. Jr. needed to be evaluated, and he was advised to obtain a court-ordered evaluation.
On August 12, 1992, J.M.P. Sr. completed an application to have J.M.P. Jr. temporarily committed. The form came preprinted with allegations that the subject of the form-J.M.P. Jr.-was mentally ill and that as a result of mental illness, either (1) was likely to cause serious harm to himself or others, or (2) would continue to suffer severe and abnormal mental, emotional, or physical distress and would continue to experience deterioration of his ability to function independently. It also included a preprinted request that J.M.P. Jr. be examined by two physicians. The certificate stated that J.M.P. Jr. had been diagnosed with major depressive disorder, his condition was deteriorating in outpatient treatment, he needed an intensive inpatient evaluation, and he was likely to cause harm to himself, but not likely to cause serious harm to others. The State also filed a motion seeking an order of protective custody. A physician's certificate of medical examination dated August 11, 1992, was attached in support of the State's motion.
None of the documents relating to the 1992 commitment were admitted into evidence at the 2022 hearing that is the basis of this appeal. We summarize the facts for narrative clarity only.
On August 17, 1992, a second physician from the public mental health facility submitted a certificate of medical examination. After evaluating J.M.P. Jr., both physicians concluded that he was angry, defiant, and depressed, and he was a danger to himself but not to others. They also diagnosed J.M.P. Jr. with "major depressive disorder." However, neither of the examining physicians concluded that J.M.P. Jr.'s condition was expected to continue for more than 90 days.
On August 20, 1992, after a non-jury hearing, the trial judge signed a judgment for court-ordered in-patient mental health services. The trial court found that J.M.P. Jr. was mentally ill and likely to cause harm to himself but not to others and, if not treated, he would continue to suffer and experience deterioration of his ability to function independently. However, the trial court also found that J.M.P. Jr. was able to make a rational and informed decision as to whether to submit to treatment. The trial court ordered that J.M.P. Jr. receive temporary in-patient mental health services for a period not to exceed 90 days.
J.M.P. Jr. was hospitalized for a week to ten days. At the 2022 hearing, J.M.P. Jr. testified that he did not recall having been placed on any medication during his 1992 hospitalization, and the physicians' certificates do not reflect that he was prescribed medication. It is undisputed that J.M.P. Jr. was completely discharged from court-ordered mental health treatment in 1992 and that there was no recommendation or requirement that he continue to receive mental health treatment.
B. History Between 1992-2022
Soon after his discharge, J.M.P. Jr. began and completed his senior year of high school without incident. He attended university and, after graduating, worked for a real estate developer for nine years. At some point, he changed companies and was eventually promoted to chief operating officer (COO) and was made part owner. Later, the board of directors promoted him to president and chief executive officer (CEO). In approximately 2020, he purchased the other owners' interest in the company and became the sole owner of the business. He currently employs approximately forty-five people.
J.M.P. Jr. prospered in his personal life as well. He has been married for over fourteen years, has three children, and has been involved in extended family life with his father, his siblings, and their children. He has volunteered with his church and multiple charities, and he coached his children's youth sports teams.
In 2021, approximately thirty years after he was involuntarily committed, J.M.P. Jr. attempted to purchase a hunting rifle, in part to hunt wild hogs on his ranch, but he was denied. He investigated the reason for his denial and learned from the Federal Bureau of Investigation that he matched a prohibiting record under 18 U.S.C. § 922(g)(4) as a person who was adjudicated mentally defective or who had been committed to a mental institution and was therefore prohibited from possessing a firearm or ammunition. In compliance with the law, J.M.P. Jr gave his firearms-a Beretta twin-gauge semiautomatic shotgun for duck and quail hunting, a 12-gauge Remington 1100 shotgun for duck and turkey hunting, and a 243-caliber Ruger M-77 rifle for deer hunting-back to J.M.P. Sr. who had purchased them for J.M.P. Jr. when he was fifteen years old. J.M.P. Jr. had passed a hunter safety class when he was in his twenties and had been hunting for a major part of his life-he owns hunting dogs, it was a big part of his social relationships, and he wanted to teach his son.
C. The 2022 Petition for Relief from Firearms Disability
In 2022, J.M.P. Jr. filed a petition with the probate court that had entered the original involuntary commitment order to lift his firearms disability and restore his right to purchase and possess firearms. The State filed an answer requesting that the trial court deny J.M.P. Jr.'s claim for relief from his firearms disability.
During the hearing, the trial court heard testimony from J.M.P. Sr., a licensed professional counselor, and J.M.P. Jr. The trial court admitted two letters from friends of J.M.P. Jr. attesting to his good reputation. The evidence admitted showed that following his involuntary commitment, J.M.P. Jr. has been an upstanding citizen; his mental health and criminal history has been spotless for thirty years; and his father and two friends attested to his sterling reputation, good character, and positive involvement in family, business, and community affairs. The State offered no exhibits and called no witnesses during the trial. Instead, the State asked the trial court to take judicial notice of the documents associated with the 1992 involuntary commitment, including the application form completed by J.M.P. Sr. and the certificates of mental health examination. The trial court took judicial notice of the documents but did not admit them into evidence. The State cross-examined witnesses with quotations from these documents and their allegations that J.M.P. Jr. ran away from home and had problems with his siblings and parents as a youth.
After hearing the evidence, the trial judge denied J.M.P. Jr.'s petition and explained her reasons for doing so. The trial judge stated that the 1992 involuntary-commitment documents, which were not in evidence, led her to believe that J.M.P. Jr. was unable at that time to make rational decisions due to depression. Then, based on no evidence within the record, the trial judge further expressed her personal belief that no one can ever recover from a mental health condition:
This contradicts an express finding in the 1992 order that J.M.P. Jr. was able to make a rational and informed decision about his treatment.
Our system of justice does not allow courts to make decisions based solely on the personal opinions of a judicial officer, entirely unsupported by evidence. "[C]itizens should be governed by clear laws consistently applied, not personal whims." In re State, 489 S.W.3d 454, 454 (Tex. 2016) (orig. proceeding). The integrity of our constitutional system of government relies on society believing that bedrock principles are founded in the law rather than in the proclivities of individuals. See Vasquez v. Hillary, 474 U.S. 254, 265 (1986). We are a government of laws, not of men. See Phillips v. McNeill, 635 S.W.3d 620, 628 (Tex. 2021); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803).
Trial Judge: I have done mental health for a long time, over 20 years, and I have never heard of someone being healed of a mental illness. Never.
J.M.P. Jr.'s Counsel: I'm sorry?
Trial Judge: I said I have never heard of anyone being healed of a mental illness. It is treatable, but to be cured of it and then not to receive treatment afterwards, I don't understand how that happened when someone is having a depression.
On the same day as the hearing, the trial judge also signed an order denying J.M.P. Jr.'s petition as follows:
[J.M.P. Jr.'s] Petition should be denied as removal of the firearms disability is not in the public interest.
It is therefore ORDERED, ADJUDGED AND DECREED that the Petition for Relief from Firearms Disability filed by [J.M.P. Jr.] is hereby DENIED.
IT IS FURTHER ORDERED THAT PURSUANT TO 18 U.S.C. 922(g)(4), [J.M.P. Jr.] IS NO LONGER ELIGIBLE TO PURCHASE OR POSSESS A FIREARM OR AMMUNITION.
The trial court's order does not state that J.M.P. Jr.'s petition should be denied on the basis that he is likely to act in a manner dangerous to public safety.
J.M.P. Jr. timely requested findings of fact and conclusions of law and timely filed a notice of past due findings and conclusions to which the trial court did not respond. See Tex. R. Civ. P. 297. He also filed a motion for new trial, which the trial court denied by written order without a hearing on August 2, 2022.
Attached to his motion for new trial was a letter from a psychiatrist that appears to have been an attempt to respond to the personal beliefs announced by the trial judge when rendering her decision. The letter was from a psychiatrist who evaluated J.M.P. Jr. after the trial judge's comments, concluding that J.M.P. Jr. "has good insight, is well-adjusted, and displays no impairment due to any mental health issues." The psychiatrist also stated in part that "it is not uncommon for a person who may have had mental health issues as a teenager to recover from or mature out of such issues as an adult." However, that letter was not admitted into evidence during the trial, and there was no hearing on J.M.P. Jr.'s motion for new trial.
II. It Was an Abuse of Discretion to Deny the Petition for Relief from a Firearms Disability
In the first part of issue one, J.M.P. Jr. argues the trial court abused its discretion when it denied his petition to remove his firearms disability. He makes three arguments in support of his contention: (1) under federal statutory law, which has been incorporated into § 574.088(a) of the TMHC, he is no longer disqualified from possessing or purchasing a firearm; (2) under a legal sufficiency standard of review, the undisputed evidence establishes, as a matter of law, all vital facts in support of his petition; and (3) under a factual sufficiency standard, trial court's adverse finding is against the great weight and preponderance of the evidence.
The State responds that it does not dispute much of the evidence submitted by J.M.P. Jr. concerning what occurred in his life after his involuntary civil commitment. The State argues that the trial court did not abuse its discretion because J.M.P. Jr. failed to establish by clear and convincing evidence that the removal of his firearms disability is in the public interest; he admitted only evidence of his personal reasons for wanting his firearms disability removed. Also, the State maintains that J.M.P. Jr.'s contested evidence was inconsistent and not credible.
The statute does not impose a clear and convincing evidentiary standard. "Only in extraordinary circumstances, such as when we have been mandated to impose a more onerous burden, has this Court abandoned the well established preponderance of the evidence standard." Ellis Cnty. State Bank v. Keever, 888 S.W.2d 790, 792 (Tex. 1994). The State has not supported its proposed heightened evidentiary standard with analysis or with citations to authority.
A. Standard of Review
The general test for abuse of discretion is whether the trial court acted without regard to any guiding rules or principles. See Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004). This occurs when either: (1) the trial court fails to analyze or apply the law correctly; or (2) with regard to factual issues or matters committed to its discretion, the trial court could reasonably reach only one decision and failed to do so. See VSDH Vaquero Venture, Ltd. v. Gross, No. 05-19-00217-CV, 2020 WL 3248481, at *4 (Tex. App.-Dallas June 16, 2020, no pet.) (mem. op.). Another way of stating the test is whether the act was arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985). Under an abuse of discretion standard, an appellate court defers to the trial court's factual determinations if they are supported by evidence, but it reviews the trial court's legal determinations de novo. Stockton v. Offenbach, 336 S.W.3d 610, 615 (Tex. 2011).
Under an abuse of discretion standard of review, legal and factual sufficiency claims are not independent, reversible grounds of error, but rather merely factors to consider in assessing whether the trial court abused its discretion. See Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991); IKB Indus. Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 445 (Tex. 1997) (Baker, J., dissenting); Tex. Dep't of Pub. Safety v. Randolph, No. 02-13-00025-CV, 2014 WL 1875826, at *2 (Tex. App.- Fort Worth May 8, 2014, pet. denied) (mem. op. on reh'g) (concluding evidence was sufficient to establish applicant was not disqualified under federal law from purchasing handgun based on mental health adjudication). For both legal and factual sufficiency challenges, an appellate court ordinarily defers to the fact-finder's determination regarding the witnesses' credibility and the weight accorded their testimony. See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005) (legal sufficiency); Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003) (factual sufficiency). If there are conflicts in the testimony, an appellate court must presume the fact-finder resolved them in favor of the ruling if reasonable human beings could do so. See Jackson v. Axelrad, 221 S.W.3d 650, 653 (Tex. 2007) (citing City of Keller, 168 S.W.3d at 819). Of course, the fact-finder's decisions regarding credibility must be reasonable. City of Keller, 168 S.W.3d at 820. A fact-finder cannot ignore undisputed testimony that is clear, positive, direct, otherwise credible, free from contradictions and inconsistencies, and could have been readily controverted, and a fact-finder is not free to believe testimony that is conclusively negated by undisputed facts. Id.
When a party attacks the legal sufficiency of an adverse finding on which it had the burden of proof, it must demonstrate on appeal that the evidence conclusively establishes, as a matter of law, all vital facts in support of the issue. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam). An appellate court conducting a legal sufficiency review cannot disregard undisputed evidence that allows only one logical inference. City of Keller, 168 S.W.3d at 814. The fact-finder is not free to reach a verdict contrary to such evidence. Id. The reviewing court must otherwise assume the fact-finder resolved disputed facts in favor of the finding. See In re A.C., 560 S.W.3d 624, 630-31 (Tex. 2018). In reviewing a "matter of law" challenge, the reviewing court must first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. See Dow Chem., 46 S.W.3d at 241. If there is no evidence to support the finding, the reviewing court will then examine the entire record to determine if the contrary proposition is established as a matter of law. Id. The issue should be sustained only if the contrary proposition is conclusively established. Id.
When there are no findings of fact despite a timely request, an appellate court presumes that a trial court made all the findings necessary to support its judgment. See Ad Villarai, LLC v. Chan Il Pak, 519 S.W.3d 132, 135 (Tex. 2017). A party may rebut this presumption by demonstrating that the record evidence does not support a presumed finding. Id.
B. Applicable Law
The State has not identified any basis under Texas state law for imposing a firearms disability on J.M.P. Jr. The pleadings, the trial court's order, Texas law,and the briefing all point to federal law 18 U.S.C. § 922(g)(4) as being the sole source of J.M.P. Jr.'s firearms disability.
The law relating to relief from a federal firearms disability involves the intersection of federal and state laws, including:
(1) 18 U.S.C. § 922(g)(4) (firearms-unlawful acts);
(2) 34 U.S.C. § 40911(c)(2)(B) (enhancement of requirement that federal departments and agencies provide relevant information to national instant criminal background check system);
(3) 34 U.S.C. § 40913 (implementation assistance to the states);
(4) 34 U.S.C. § 40915 (relief from disabilities program required as condition for participation in grant programs);
(5) Tex. Const. art. 1, § 15-a (commitment of persons of unsound mind); and
(6) TMHC § 574.088 (relief from disabilities in mental health cases).
1. Texas Law Relating to Mental Health Commitments
A mental-health facility's authority to detain a patient against his will is subject to constitutional limitations. Loya v. Hickory Trail Hosp., L.P., 673 S.W.3d 1, 12 (Tex. App.-Dallas 2022, no pet.). Each person in Texas has a federal and state constitutional right not to be involuntarily committed except upon sufficient evidence. Id.; Tex. Const. art. I, § 15-a ("No person shall be committed as a person of unsound mind except on competent medical or psychiatric testimony."). To safeguard these rights while also ensuring that those with severe mental illness have access to humane care, the legislature enacted the TMHC. Loya, 673 S.W.3d at 12; Health & Safety § 571.002 (stating purpose of TMHC).
The facility administrator of a facility to which a patient was committed or from which a patient was required to receive temporary or extended inpatient or outpatient mental health services shall discharge the patient when the court order expires. Health & Safety § 574.085. However, under § 574.086 of the TMHC, a patient committed for court-ordered mental health services may be discharged at any time before the expiration of the court order if the "facility administrator or person determines that the patient no longer meets the criteria for court-ordered mental health services" and such a discharge terminates the court order and the discharged person may not be required to submit to further involuntary mental health services unless a new court order is entered. Id. § 574.086(a), (c); Randolph, 2014 WL 1875826, at *5. The facility administrator of a facility to which the patient was involuntarily committed for inpatient mental health services shall consider before discharging the patient whether the patient should receive outpatient court-ordered mental health services in accordance with: (1) a furlough under § 574.082 or (2) a modified order under § 574.061 that directs the patient to participate in outpatient mental health services. Health & Safety § 574.086(b). The facility administrator or the person responsible for outpatient care who discharges a patient shall prepare a discharge certificate and file it with the court that entered the order requiring mental health services. Id. § 574.087.
2. Federal Law Imposing Firearms Disability
The duties pertaining to the sale of a firearm are regulated by the Gun Control Act of 1968, as amended by the Brady Handgun Violence Prevention Act of 1993 ("Brady Act"). See 18 U.S.C. §§ 921-34; Reyna v. Academy Ltd., No. 01-15-00988-CV, 2017 WL 3483217, at *5 (Tex. App.-Houston [1st Dist.] Aug. 16, 2017, no pet.) (mem. op.). Before a federally licensed firearms dealer may sell a firearm, the would-be purchaser must provide certain personal information, show photo identification, and pass a background check. Reyna, 2017 WL 3483217, at *5. Pursuant to 18 U.S.C. § 922(g)(4), certain classes of people, including the mentally ill, are disqualified from purchasing or possessing firearms. 18 U.S.C. § 922(g)(4); Reyna, 2017 WL 3483217, at *5; accord Abramski v. United States, 573 U.S. 169, 172 (2014). Section 922(g)(4) states as follows:
It shall be unlawful for any person who has been adjudicated as a mental defective or who has been committed to a mental institution to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.18 U.S.C. § 922(g)(4).
"Committed to a mental institution" means "a formal commitment to a mental institution by a court, board, commission, or other lawful authority." 27 C.F.R. § 478.11. The term includes commitment to a mental institution involuntarily, but it does not include a person in a mental institution for observation or a voluntary admission to a mental institution. Id.
3. Relief from Federal Firearms Disability
However, federal law also includes a process through which individuals who have been involuntarily committed can restore their rights under the National Instant Criminal Background Check System Improvement Amendments Act (NIAA). 34 U.S.C. § 40911. The NIAA specifically cross-references 18 U.S.C. § 922(g)(4) and:
(1) requires federal agencies that impose mental health adjudications or involuntary commitments to provide a process for relief from the disabilities described in 18 U.S.C. § 922(g)(4), and
(2) provides grant money to states that implement a disability relief program under 34 U.S.C. § 40915.34 U.S.C. §§ 40911(c)(2), 40913(c); see also Randolph, 2014 WL 1875826, at *3 (noting Congress passed amendment that allows states to establish their own programs to provide relief from firearm disabilities).
4. Texas State Law for Relief from Federal Firearms Disability
Texas has further adopted a state program to provide relief from federal firearms disabilities. The program Texas adopted appears in § 574.088 of the TMHC. Randolph, 2014 WL 1875826, at *3. That section provides as follows:
(a) A person who is furloughed or discharged from court-ordered mental health services may petition the court that entered the commitment order for an order stating that the person qualifies for relief from a firearms disability.
(b) In determining whether to grant relief, the court must hear and consider evidence about:
(1) the circumstances that led to imposition of the firearms disability under 18 U.S.C. § 922(g)(4);
(2) the person's mental history;
(3) the person's criminal history; and
(4) the person's reputation.
(c) A court may not grant relief unless it makes and enters in the record the following affirmative findings:
(1) the person is no longer likely to act in a manner dangerous to public safety; and
(2) removing the person's disability to purchase a firearm is in the public interest.
C. J.M.P. Jr. Conclusively Established All Vital Facts in Support of His Petition
J.M.P. Jr. argues that the trial court abused its discretion because (1) under a legal sufficiency standard of review, the undisputed evidence establishes, as a matter of law, all vital facts in support of his petition, and alternatively (2) under a factual sufficiency standard, the trial court's adverse finding is against the great weight and preponderance of the evidence. Here, J.M.P. Jr. had the burden of proof on his petition to remove his firearms disability and restore his right to purchase and possess firearms.
1. Lack of Evidence to Support the Trial Court's Findings
We begin with J.M.P. Jr.'s legal sufficiency challenge by examining the record for evidence that supports the trial court's implied findings, while ignoring all evidence to the contrary. See Dow Chem., 46 S.W.3d at 241.
In adjudicating a petition under § 574.088 of the TMHC, the trial court must hear and consider the evidence described by (b)(1)-(4). Health & Safety § 574.088. Then, to grant relief under the statute, the trial court must make two statutory findings: (c)(1) the person is no longer likely to act in a manner dangerous to public safety; and (c)(2) removing the person's disability to purchase a firearm is in the public interest. Id. In denying J.M.P. Jr.'s petition, the trial court did not make any findings relating to the evidence presented pursuant to (b)(1)-(4) and did not find that J.M.P. Jr. is likely to act in a manner dangerous to public safety, but it expressly found that "[J.M.P. Jr.'s] Petition should be denied as removal of the firearms disability is not in the public interest."
During the trial, the State offered no evidence and called no witnesses. The State did request, and the trial court agreed to take, judicial notice of the documents associated with the 1992 involuntary commitment, including the application form filled out by J.M.P. Sr. and the certificates of mental health examination. A court may take judicial notice that pleadings have been filed. See Gruber v. CACV of Colo., LLC, No. 05-07-00379-CV, 2008 WL 867459, at *2 (Tex. App.-Dallas Apr. 2, 2008, no pet.) (mem. op.). But the trial court may not take judicial notice of the truth of factual statements and allegations contained in the pleadings, affidavits, or other documents in the file, nor may it take the pleadings to be true, absent testimony, other proof, or admissions by the other party. See O'Donnell v. Vargo, No. 05-14-00404-CV, 2015 WL 4722459, at *4 (Tex. App.-Dallas Aug. 10, 2015, no pet.) (mem. op.); Gruber, 2008 WL 867459, at *2. The court taking judicial notice of the contents of its file does not elevate those averments into proof. See Gruber, 2008 WL 867459, at *2 (citing two cases which held that judicial notice of pleadings was legally insufficient evidence to support an element of a claim). Generally, pleadings and affidavits filed with the court cannot be considered as evidence unless they are admitted into evidence. Tex. Health Res. v. Pham, No. 05-15-01283-CV, 2016 WL 4205732, at *7 (Tex. App.-Dallas Aug. 3, 2016, no pet.) (mem. op.). And documents attached to pleadings are not evidence. Gruber, 2008 WL 867459, at *2.
Under Texas Rule of Evidence 201, if a fact is not subject to reasonable dispute because it (1) is generally known within the trial court's territorial jurisdiction, or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned, then a court may take judicial notice of it. Tex. R. Evid. 201(b).
On appeal, the State "does not dispute much of the evidence submitted by [J.M.P. Jr.] concerning what occurred in his life after the civil commitment" and agrees that the following specific facts are not in dispute:
• J.M.P. Sr. applied to have his son involuntarily committed for treatment of mental illness when J.M.P. Jr. was seventeen years of age.
• On August 20, 1992, J.M.P. Jr. was civilly, involuntarily committed for a period not to exceed 90 days.
• J.M.P. Jr was unable to purchase a rifle because of a firearms disability due to his involuntary commitment in 1992 for mental illness.
• On March 31, 2022, J.M.P. Jr filed a petition pursuant to § 574.088 of the TMHC seeking to have his firearms disability removed.
• On June 16, 2022, the trial court held a hearing on J.M.P. Jr.'s petition for relief from his firearms disability and signed an order denying the petition on the same day.
• There was no evidence of J.M.P. Jr. receiving any mental illness treatment subsequent to his release from his involuntary commitment in 1992.
• There was no evidence that J.M.P. Jr. has a criminal history.
• The only reputation evidence admitted during the hearing were the two character letters offered by J.M.P. Jr.
The State has expressly conceded a lack of controverting evidence against J.M.P. Jr. with respect to § 574.088(b)(2)-(4) of the TMHC. The record further contains no evidence to support the trial court's express finding that removing J.M.P. Jr.'s disability to purchase a firearm is not in the public interest. See Health & Safety § 574.088(c)(2).
2. Review of Entire Record to Determine if Contrary Proposition Was Established as a Matter of Law
Next, because there is no evidence to support the trial court's finding, we examine the entire record to determine if the contrary proposition is established as a matter of law. See Dow Chem., 46 S.W.3d at 241. In determining whether to grant J.M.P. Jr. relief, the trial court was required to hear and consider evidence about the following:
(1) the circumstances that led to the imposition of J.M.P. Jr.'s firearms disability under 18 U.S.C. § 922(g)(4);
(2) J.M.P. Jr.'s mental history;
(3) J.M.P. Jr.'s criminal history; and
(4) J.M.P. Jr.'s reputation.See Health & Safety § 574.088(b).
First, we review the evidence regarding the circumstances that led to the imposition of J.M.P. Jr.'s firearms disability under 18 U.S.C. § 922(g)(4). See Health & Safety § 574.088(b)(1). The evidence established that the initial, limited commitment when J.M.P. Jr. was a teenager resulted from a behavioral aberration. The 1992 trial court found that J.M.P. Jr. was mentally ill and likely to cause harm to himself but not to others and, if not treated, he would continue to suffer and experience deterioration of his ability to function independently. J.M.P. Jr. testified that he did not recall being prescribed any medication for a mental-health condition while he was involuntarily committed. J.M.P. Sr. testified that neither he nor anyone at the hospital had observed anything to suggest his son had violent tendencies. Rather, according to J.M.P. Sr., the allegation in his 1992 application that J.M.P. Jr. was likely to harm himself or others was simply part of the form's preprinted, boilerplate language, and he had signed it only in order to force his son to undergo an evaluation. J.M.P Sr. was cross-examined by the State about some of the statements made in the two examining physicians' reports from 1992, the accuracy of which J.M.P. Sr. disputed. One of the examining physicians had reported that J.M.P. Jr. had hit his siblings when he was angry, but the report also stated he was not likely to harm others, and J.M.P. Sr. testified that he has never seen J.M.P. Jr. hit anyone in anger or abuse his siblings. While both of the 1992 examining physicians reported that J.M.P. Jr. was continuing to deteriorate despite intensive outpatient therapy, J.M.P. Sr. testified that he had no recollection of J.M.P. Jr. ever receiving intensive outpatient treatment.
Nothing in the record controverted this testimony, even including the older commitment records that were judicially noticed but not admitted into evidence.
Second, we review the evidence related to J.M.P. Jr.'s mental history. See Health & Safety § 574.088(b)(2). The evidence admitted showed that during the thirty years following his involuntary commitment, J.M.P. Jr. has not been treated for mental health issues. J.M.P. Jr. testified that it was not recommended he continue nor did he receive mental health treatment or medication for a mental health condition after he was discharged. And nothing in the record indicates further treatment was recommended. See, e.g., Health & Safety § 574.081. J.M.P. Sr. stated that his son did not receive any mental health treatment after he was discharged. J.M.P. Sr. also testified that he had no concern that J.M.P. Jr. posed a danger to anyone due to his decades-long track record of safety and stability.
Further, the licensed professional counselor who evaluated J.M.P. Jr. testified that she concluded there were no indications of mental instability, nor were there any mental health concerns reported or identified that should prevent J.M.P. Jr. from owning a firearm. J.M.P. Jr. told the licensed professional counselor that, to his knowledge, he was not diagnosed with or prescribed medication for a mental health concern when he was temporarily committed as a teenager. Since that time, he has not been diagnosed or treated for any type of mental health issues or prescribed any medication for any mental health concerns. The licensed professional counselor described J.M.P. Jr. as "high functioning and accomplished." She stated there are no indications of addictive behaviors, he has no learning differences, and he is not experiencing extraordinary stress or crisis; there are no physical health issues that might affect his mental health.
Although the State did not object to the licensed professional counselor's testimony or the admission of her report into evidence, the trial judge sua sponte concluded that "[the licensed professional counselor] was not qualified as an expert in evaluations for psychiatric purposes, and the Best Evidence Rule requires us to look at the whole circumstance surrounding this." As a result, the trial judge stated that she was looking at only what J.M.P. Sr. attested to and what the physicians wrote in their reports in 1992.
In addition, the State did not dispute at trial that that there was no continuing care plan and that J.M.P. Jr. had not had any mental health treatment in the thirty years since his temporary, involuntary commitment in 1992. And, on appeal, the State concedes there was no evidence of J.M.P. Jr. receiving any mental health treatment after his release from his involuntary commitment in 1992.
Third, we consider the evidence related to J.M.P. Jr.'s criminal history. See Health & Safety § 574.088(b)(3). During the hearing, the assistant district attorney acknowledged that he had "reviewed a clear report from [J.M.P. Jr.]'s attorney that shows [he] did not have any arrests or criminal history" and J.M.P. Jr. confirmed that was correct. At the conclusion of the hearing, the trial judge also noted that the State had agreed that J.M.P. Jr. did not have a criminal history. And, on appeal, the State again concedes there was no evidence that J.M.P. Jr. has a criminal history.
Fourth, we analyze the evidence concerning J.M.P. Jr.'s reputation. See Health & Safety § 574.088(b)(4). J.M.P. Sr. described J.M.P. Jr. as "a great model for his kids," "active in everything," "a successful businessman," a "wonderful individual," and "a safe person who cares about people." Ultimately, J.M.P. Sr. stated that he trusted his son with his life and believed J.M.P. Jr. to be "the safest person that I have ever seen with a firearm."
J.M.P. Jr. testified about his life in the decades following the temporary, involuntary commitment, including that he had finished college, had a productive career, was married with children, and active in his church and the community.
The trial court also admitted two letters attesting to J.M.P. Jr.'s good reputation. One letter was authored by a close friend who had known J.M.P. Jr. since elementary school. The letter noted J.M.P. Jr.'s involvement in church and multiple local charities, and described him as a loving husband and father, a successful businessman, and an upstanding member of the community. The second letter described J.M.P. Jr. as a friend who had become like a member of the author's extended family to whom he had entrusted the care of his children, and he praised J.M.P. Jr.'s positive attitude and his "solid character." On appeal, the State concedes this was the only reputation evidence admitted at trial. The State did not controvert J.M.P. Jr.'s reputation evidence.
3. Trial Court's Credibility Determinations
The State argues that the trial court impliedly found the witnesses and documentary evidence were not credible and argues that there were many inconsistencies and credibility issues with the witnesses and evidence submitted by J.M.P. Jr. With respect to the credibility of J.M.P. Jr. and his witnesses, the State maintains the following contradictions create credibility issues:
• Although J.M.P. Sr. had been an OB/GYN for fifteen years at the time of his application to involuntarily commit J.M.P. Jr., he claimed that he had no training in evaluating a person's mental state.
• Although J.M.P. Sr. swore under oath in 1992 that J.M.P. Jr. was mentally ill and likely to cause serious harm to himself, J.M.P. Sr. testified that friends suggested he have J.M.P. Jr. evaluated, he had no concern J.M.P. Jr. would harm himself or others, he never saw any evidence that J.M.P. Jr. was violent toward anyone, and his main concern was to determine if J.M.P. Jr. was depressed.
The State also points to other documents associated with the 1992 involuntary commitment, but we have already determined that the factual statements in those documents do not constitute evidence in this case.
Both of these "contradictions" relate to § 574.088(b)(1) of the TMHC, the circumstances that led to the involuntary commitment. If there are conflicts in the testimony, we must presume the fact-finder resolved them in favor of the ruling if reasonable human beings could do so. See Jackson, 221 S.W.3d at 653. However, these alleged contradictions identified by the State do not affect the result. Whether or not an OB/GYN in 1992 was trained in evaluating a person's mental state is not relevant or dispositive to the trial court's statutory findings under § 574.088. Also, even if his father filed a boilerplate petition that alleged that J.M.P. Jr. was likely to harm himself or others, the 1992 trial court did not find that J.M.P. Jr. was a danger to others. Resolving these conflicts in favor of the judgment-that J.M.P. Jr. did meet the criteria for commitment in 1992-does not resolve the issue to be determined under § 574.088 of the TMHC: whether any such past concerns have been alleviated. Ultimately, the purpose of the firearm disability relief program is to evaluate whether the past concerns that led to an involuntary commitment are currently present.
The record contains uncontroverted evidence concerning J.M.P. Jr.'s good mental health following his involuntary commitment as a minor, his lack of a criminal history, and his good reputation. See Health & Safety § 574.088(b)(2)- (4). Further, the State concedes that there was no evidence of J.M.P. Jr. requiring any mental-health treatment after his involuntary commitment in 1992, that there was no evidence that J.M.P. Jr. has a criminal history, and that the only reputation evidence was J.M.P. Jr.'s. See Health & Safety § 574.088(b)(2)-(4).
A fact-finder's decisions regarding credibility must be reasonable. City of Keller, 168 S.W.3d at 820. A fact-finder cannot ignore undisputed testimony that is clear, positive, direct, otherwise credible, free from contradictions and inconsistencies, and could have been readily controverted. Id. Based on the record in this case, we cannot ignore the lack of evidence supporting any implied credibility findings and the conclusive evidence that rebuts those findings.
4. Removing J.M.P. Jr.'s Firearms Disability Is in the Public Interest
The State maintains that J.M.P. Jr. was required to prove both that (1) he was no longer likely to act in a manner dangerous to public safety, and (2) that removing his disability to purchase a firearm is in the public interest. See Health & Safety § 574.088(c). The State contends that J.M.P Jr. admitted evidence only of his personal reasons for wanting his firearms disability removed-that he hunts and wants to teach his son to hunt-which do not address the public interest.
Before the trial court could grant J.M.P. Jr.'s petition, the trial court was required to find (1) J.M.P. Jr. is no longer likely to act in a manner dangerous to public safety, and (2) removing J.M.P. Jr.'s disability to purchase a firearm is in the public interest. See id. In determining whether to make those findings and grant J.M.P. Jr. relief, the trial court was required to hear and consider the following four categories of evidence:
(1) the circumstances that led to imposition of J.M.P. Jr.'s firearms disability under 18 U.S.C. § 922(g)(4);
(2) J.M.P. Jr.'s mental history;
(3) J.M.P. Jr.'s criminal history; and
(4) J.M.P. Jr.'s reputation.See Health & Safety § 574.088(b). The statute requires the trial court to consider those four categories in determining whether to find that a petitioner is dangerous and whether to find that relief from the disability is in the public interest. For example, if a petitioner were impaired by ongoing mental illness or had a dangerous criminal history, then evidence under (b)(2) or (b)(3) would support a finding that removal of the firearms disability would not be in the public interest. Even if a petitioner had problematic behavior that had not risen to the level of an adjudication, such evidence under (b)(4) could support a finding that removal of the disability would not be in the public interest.
However, as previously outlined in this opinion, J.M.P. Jr. presented positive evidence related to each of these four statutory factors, which was uncontroverted by the State. The State admitted no evidence relating to any of the four statutory factors that would contradict a finding that removing the disability is in the public interest. If the trial court's decisions were founded in the law, rather than the personal opinions of the judicial officer, the trial court could reasonably reach only one decision.
Further, the public policy underlying the TMHC is "to provide to each person having severe mental illness access to humane care and treatment." Health & Safety § 571.002. We must be mindful that, as a matter of public policy and safety, we do not want to discourage parents from seeking mental health care for their minor children by over-reading statutes to create permanent, life-long disabilities that cannot be removed. In a situation, like here, where:
• a father sought to have his minor son's mental health evaluated,
• his minor son was involuntarily committed but then discharged without the need for medication or further treatment, and then,
• thirty years later, despite a clean bill of health and being an upstanding and productive member of society, his adult son finds himself unable to exercise his constitutional liberty to possess a firearm,
these long-term consequences could cause other parents to hesitate or refrain from seeking help for their minor children. Rather, as a matter of public interest, public policy should encourage parents to err on the side of caution and seek mental health evaluation and treatment for their children when they have concerns.
It was undisputed that J.M.P. Jr. had owned firearms virtually his whole life and he had not had any mental health treatment or trouble with the law in the thirty years since his temporary, involuntary commitment in 1992. And, again, the licensed professional counselor stated that after evaluating J.M.P. Jr., she found no cause for concern with the prospect of his firearm rights being restored. She testified that he presented as high-functioning with no traces of depression or deception and he had a record of safety and stability without any red flags over the last thirty years. The licensed professional counselor's written evaluation reiterating her belief that J.M.P. Jr. posed no danger was admitted into evidence. There has never been a finding that J.M.P. Jr. has been a danger to others, meaning the public. There is no evidence from which the trial court could conclude that granting J.M.P. Jr.'s petition would be anything other than in the public interest.
Although not in evidence, even if we were to consider the judicially-noticed medical reports and other documents related to J.M.P. Jr.'s 1992 involuntary commitment, we note that those documents stated that J.M.P. Jr. was not a danger to others.
5. The Trial Court Abused Its Discretion and the Evidence Was Legally Sufficient
Accordingly, we conclude that J.M.P. Jr. conclusively established, as a matter of law, all vital facts in support of his petition. As a result, the trial court abused its discretion because it failed to correctly analyze and apply the law and, based on the conclusive evidence, it could have reached only one decision but failed to do so.
There has never been any evidence or finding that J.M.P. Jr. was likely to act in a manner dangerous to public safety; rather, the original 1992 order contains a findings that J.M.P. Jr. was not a danger to others. There was no evidence that removing J.M.P. Jr.'s disability to purchase a firearm was not in the public interest, and there was uncontroverted positive evidence of each factor listed in the statute showing that removing his disability would be in the public interest. Based on the evidence admitted at trial, the trial court could reasonably only reach one decision in making the findings described by § 574.088(c) of the TMHC and granting relief under the statute, and it failed to do so.
The first part of issue one is decided in favor of J.M.P. Jr. Based on our resolution of this issue, we need not address the second part of issue one or issue two.
III. Conclusion
The trial court acted arbitrarily and unreasonably, and it abused its discretion when it denied J.M.P. Jr.'s petition to remove his firearms disability. We conclude the evidence conclusively established that J.M.P. Jr. is not likely to act in a manner dangerous to public safety and that removing J.M.P. Jr.'s disability to purchase a firearm is in the public interest. We reverse the trial court's order and render an order that:
(1) states that, under Health & Safety § 574.088(a), J.M.P. Jr. qualifies for relief from a firearms disability;
(2) declares that J.M.P. Jr. is not a prohibited person under 18 U.S.C. § 922(g)(4); and
(3) restores J.M.P. Jr.'s right to ship, transport, possess, or receive firearms and ammunition.
JUDGMENT
In accordance with this Court's opinion of this date, the judgment of the trial court is REVERSED and judgment is RENDERED that:
(1) states that, under Health & Safety § 574.088(a), J.M.P. Jr. qualifies for relief from a firearms disability;
(2) declares that J.M.P. Jr. is not a prohibited person under 18 U.S.C. § 922(g)(4); and
(3) restores J.M.P. Jr.'s right to ship, transport, possess, or receive firearms and ammunition.
It is ORDERED that appellant J.M.P. JR. recover his costs of this appeal from appellee THE STATE OF TEXAS.
Judgment entered this 19th day of March, 2024.
CONCURRING OPINION
EMILY A. MISKEL, JUSTICE
As author of the majority opinion in this case, I concur to my own opinion and write separately to address two additional issues that are not essential to the holding of the majority opinion but that I believe could be dispositive of petitions brought under § 574.088 of the TMHC:
(1) J.M.P. Jr.'s argument that, as a matter of federal law, his federal firearms disability no longer exists, and
(2) the trial court should have considered the exercise of constitutional liberties by law-abiding citizens to be in the public interest under § 574.088(c)(2) of the TMHC.
Finally, I respond to the dissent's argument that J.M.P. Jr.'s desire to hunt is not evidence that removing his disability is in the public interest.
I. J.M.P. Jr.'s Firearms Disability May No Longer Exist as a Matter of Federal Law
In the first part of issue one, J.M.P. Jr. argues that, under federal statutory law, "once a person has been discharged from ordered mental health services and is no longer under mandatory treatment, supervision or monitoring, the person is no longer disqualified from owning or purchasing a firearm." J.M.P. Jr. contends that this federal law is incorporated in § 574.088 of the TMHC and requires the trial court to consider evidence about the circumstances that led to the imposition of his firearms disability and his mental health history. I construe his argument to be that the trial court erred when it denied his petition because, under 34 U.S.C. § 40911(c)(2)(B), his involuntary commitment was deemed not to have occurred for purposes of an 18 U.S.C. § 922(g)(4) firearms disability and, as a result, the trial court was precluded from finding that he was disqualified under 18 U.S.C. § 922(g)(4) and denying him relief from a firearms disability. The State did not respond to this argument made by J.M.P. Jr.
I note that J.M.P. Jr. does not cite 34 U.S.C. § 40911(c). However, the language he refers to is contained in that statute.
Under 34 U.S.C. § 40911(c)(1)(A), no federal department or agency may provide, for the purposes of a federal firearms background check, any record related to a person's commitment to a mental institution if the person has been fully released or discharged from all mandatory treatment, supervision, or monitoring. 34 U.S.C. § 40911(c)(1)(A); see also Tex. Dep't of Pub. Safety v. Randolph, No. 02-13-00025-CV, 2014 WL 1875826, at *2 (Tex. App.-Fort Worth May 8, 2014, pet. denied) (mem. op. on reh'g). Although that provision applies only to federal agencies and not states, the law goes on to separately say: where a record of a commitment may not be provided for a background check, the commitment shall be deemed not to have occurred for purposes of 18 U.S.C. § 922(g)(4) (i.e., the firearms disability). See 34 U.S.C. § 40911(c)(2)(B). The plain text of subsection (c)(2)(B) is not limited to federal agencies or departments.
In other words, upon full release or discharge from court-ordered mental health treatment, the commitment is deemed not to have occurred, and the federal firearms disability under § 922(g)(4) ceases to exist. See also Randolph, 2014 WL 1875826, at *5.
The trial court's 2022 order specifically states, "PURSUANT TO 18 U.S.C. § 922(g)(4) PETITIONER IS NO LONGER ELIGIBLE TO PURCHASE OR POSSESS A FIREARM OR AMMUNITION." However, it is undisputed, and the evidence conclusively establishes, that J.M.P. Jr. was fully released or discharged from all mandatory treatment, supervision, or monitoring more than thirty years ago. See 34 U.S.C. § 40911(c)(1)(A); see also Randolph, 2014 WL 1875826, at *6. The State conceded that there is no evidence of J.M.P. Jr. receiving any court-ordered mental health treatment subsequent to his full release from his involuntary commitment in 1992. Nor did the State rebut J.M.P. Jr.'s evidence or show that he was discharged with any continuing care plan. See, e.g., Texas Health & Safety Code Ann. § 574.081. Consequently, under 34 U.S.C. § 40911(c)(2)(B), upon J.M.P. Jr.'s discharge, his involuntary commitment was deemed not to have occurred for purposes of 18 U.S.C. § 922(g)(4). As a result, it appears that the state trial court lacked the power to render an order purporting to impose a federal firearms disability that did not exist as a matter of federal law. See 34 U.S.C. § 40911(c)(2)(B); Randolph, 2014 WL 1875826, at *5. In other words, if federal law provides that J.M.P. Jr. is not a prohibited person under 18 U.S.C. § 922(g)(4), there was no legal basis for the trial court to enter an order finding that J.M.P. Jr. is a prohibited person under 18 U.S.C. § 922(g)(4).
Federal law may have already granted J.M.P. Jr. relief from his federal firearms disability. And if it did, then as a matter of law, he is no longer prohibited under 18 U.S.C. § 922(g)(4) with respect to the acquisition, receipt, transfer, shipment, transportation, or possession of firearms. See 34 U.S.C. § 40911(c)(2)(B); Randolph, 2014 WL 1875826, at *5. Nevertheless, because I could find no clear authority directly addressing this application of 34 U.S.C. § 40911(c)(2)(B), I agree fully with the majority opinion's analysis of J.M.P. Jr.'s legal sufficiency arguments.
II. The Exercise of Constitutional Liberties by Law-Abiding Citizens Is in the Public Interest.
In determining whether removing J.M.P. Jr.'s disability to purchase a firearm is in the public interest under § 574.088(c)(2) of the TMHC, the record also does not show that the trial court considered the public interests served by the exercise of constitutional liberties.
The legislature determines public policy through the statutes it passes. Fairfield Ins. Co. v. Stephens Martin Paving, LP, 246 S.W.3d 653, 665 (Tex. 2008). In creating the statutory remedy for relief from firearms disabilities, the Texas Legislature expressly recognized that it can be in the public interest to restore Second Amendment liberties to a person with a past involuntary commitment for mental illness.
Texas law recognizes, for example, that the exercise of First Amendment liberties is in the public interest. The Texas Legislature enacted the Texas Citizens Participation Act (TCPA) to protect the exercise of First Amendment liberties by "encourag[ing] and safeguard[ing] the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law . . . ." Tex. Civ. Prac. & Rem. Code Ann. § 27.002. The TCPA "carries forward the state's commitment to the free exchange of ideas enshrined in our Texas and United States Constitutions." Lilith Fund for Reprod. Equity v. Dickson, 662 S.W.3d 355, 369 (Tex. 2023).
See Citizens Participation Act, 82nd Leg. R.S., ch. 341, §§ 1-2, 2011 Tex. Gen. Laws 961, 961-64 (codified at Tex. Civ. Prac. & Rem. Code Ann. §27.001-27.011) (section one states, "This Act may be cited as the Texas Citizens Participation Act.").
Likewise, in analyzing whether removing J.M.P. Jr.'s disability to purchase a firearm is in the public interest, the trial court should have considered the public interest in encouraging and safeguarding the constitutional rights enshrined in the Second Amendment. The Second Amendment confers a fundamental, individual right to keep and bear arms. See U.S. Const. amend. II; N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1, 70 (2022); McDonald v. Chicago, 561 U.S. 742, 780, 791 (2010); District of Columbia v. Heller, 554 U.S. 570, 595 (2008). The Second Amendment "elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home." Heller, 561 U.S. at 635.
To be sure, the United States Supreme Court has referenced longstanding prohibitions on the possession of firearms by the mentally ill. See Heller, 561 U.S. at 626-27; McDonald, 561 U.S. at 786; Bruen, 597 U.S. at 80-81 (Kavanaugh, J. concurring). But the United States Fifth Circuit Court of Appeals recently reviewed historical firearms prohibitions relating to "lunacy" and "ongoing mental illness" to interpret, by analogy, a firearms prohibition relating to controlled substances. United States v. Daniels, 77 F.4th 337, 349-50 (5th Cir. 2023). The Fifth Circuit acknowledged a precedent of regulating the combination of guns and intoxicating substances but stated "at no point in the 18th or 19th century did the government disarm individuals who used drugs or alcohol at one time from possessing guns at another" and concluded that "our history and tradition may support some limits on an intoxicated person's right to carry a weapon, but it does not justify disarming a sober citizen based exclusively on his past drug usage." Id. at 340. The Fifth Circuit stated that this comparison "could justify disarming a citizen only while he is in a state comparable to lunacy. Just as there was no historical justification for disarming a citizen of sound mind, there is no tradition that supports disarming a sober citizen who is not currently under an impairing influence." Id. at 349. In analyzing the firearms prohibition at issue, the Fifth Circuit considered whether the defendant was "permanently impaired in a way that is comparable to ongoing mental illness." Id. at 350 (emphasis added).
In this case, the trial court's decision had the effect of disarming a citizen of sound mind based exclusively on his past commitment as a teen. J.M.P. Jr.'s firearms disability is based solely on an order signed when he was a minor. The government presented no evidence that J.M.P. Jr. is "in a state comparable to lunacy" or "permanently impaired" by "ongoing mental illness." To the contrary, J.M.P. Jr.'s uncontroverted evidence demonstrated that he was an "ordinary," "law-abiding,"" responsible" citizen of "sound mind" over the three decades between his brief commitment as a teenager and the trial of this cause when he was a middle-aged man.
Bruen, 597 U.S. at 8.
Bruen, 597 U.S. at 8; Heller, 554 U.S. at 635.
Heller, 554 U.S. at 635.
Daniels, 77 F.4th at 349.
Because there was no evidence to show J.M.P. Jr. is presently incompetent or a danger to public safety-and ample positive evidence of each factor affecting the public as set forth in the statute-the trial court should have considered the public benefit yielded by vindicating a competent person's fundamental liberty interests.
III. The Use of Firearms to Control the Feral Hog Population Is in the Public Interest of the State of Texas
In addition to the public interests served by the exercise of federal constitutional liberties, this case involves public interests specific to Texas. The record shows that J.M.P. Jr. testified that he attempted to purchase a hunting rifle, in part, to hunt wild hogs on his ranch. See Tex. Const. art. I, § 34 (Texas bill of rights includes right to hunt). The dissent is skeptical of J.M.P. Jr.'s argument that his ability to own guns for hunting is in the public interest. However, the public policy of Texas affirmatively promotes the hunting of feral hogs.
Under Texas law, feral hogs are "depredating animals" who cause damage or destruction to property, commercial crops, or native environments. Tex. Parks & Wild. Code Ann. § 43.103(2); Tex. Parks & Wild. Dep't, Hunting Regulations, (Sept. 1, 2023-Aug. 31, 2024) (definition of "depredation"). Further, the Texas Department of Agriculture considers the growing population of feral hogs to be a serious problem with negative health and economic impacts. See Tex. Dept. of Agriculture v. Wild Boar Meats, LLC, No. 03-17-00514-CV, 2018 WL 3748677, at *1 (Tex. App.-Austin Aug. 8, 2018, pet. denied) (mem. op.).
To address the public interest in reducing the number of feral hogs and minimizing the destruction they cause, the Texas Legisature has enacted statutes relaxing almost all hunting restrictions with respect to this invasive species. Under Texas law, no license or permit is required to hunt feral hogs on private property. Parks & Wild. §§ 42.002(c); 42.005(f); 43.158; see also Tex. Parks & Wild. Dep't, Hunting Regulations. Feral hogs can be hunted from aircraft, including helicopters and hot air balloons. Parks & Wild. §§ 43.102, 43.1075, 43.1076; see also 31 Tex. Admin. Code § 65.151(c). Hunters can use drones to track feral hogs. 31 Admin. §§ 65.151, 65.152. The Texas Parks and Wildlife Code contains no season limits for hunting feral hogs, no bag limit on how many feral hogs hunters can kill, and the restrictions on hunting wildlife at night or with artificial lights do not apply to feral hogs. See Parks & Wild ch. 62 (restrictions on hunting "wild" game); Parks & Wild. § 1.101(4) ("wild" game does not include "exotic livestock"); Tex. Agric. Code Ann. § 161.001(a)(4) ("exotic livestock" includes feral hogs).
The dissent believes that J.M.P. Jr.'s desire to hunt is no evidence that lifting J.M.P. Jr.s' firearms disability would be in the public interest. However, J.M.P. Jr.'s evidence regarding his purpose for seeking to restore his firearms liberties-to be able to hunt, including feral hogs-exemplifies the affirmative public policy of Texas and is therefore in the public interest.
IV. Conclusion
I determined it is necessary to write separately to address these issues. I believe the dissent's claim that J.M.P. Jr. "presented no evidence showing removing the disability is in the public interest" merited a response. More importantly, if the evidence shows that a petitioner's federal firearms disability no longer even exists as a matter of federal law, then Texas courts would lack the power, in cases brought under § 574.088 of the TMHC, to continue to impose a federal firearms disability. Additionally, in making a finding about whether removing a petitioner's disability to purchase a firearm is in the public interest under under § 574.088(c)(2) of the TMHC, a court should consider that the public interest is benefited by the exercise of the constitutional liberties protected by the Second Amendment.
For these reasons, I believe it important for the Texas Supreme Court to clarify whether 34 U.S.C. § 40911(c)(2)(B) applies to state courts in proceedings under § 574.088 and to make clear that the exercise of Second Amendment liberties by a law-abiding, responsible person of sound mind is in the public interest and weighs in favor of a finding under § 574.088(c)(2) of the TMHC.
DISSENTING OPINION
ROBBIE PARTIDA-KIPNESS, JUSTICE
Appellant enjoys bird hunting with friends and family. So, when he was not permitted to purchase an AR-15 because of a prior involuntary mental health commitment, Appellant applied for statutory relief from the firearms disability. To obtain that relief, however, Appellant was required to present evidence to support two affirmative findings: (1) he is no longer likely to act in a manner dangerous to public safety, and (2) removing the disability to purchase a firearm is in the public interest. See Tex. Health & Safety Code § 574.088(c)(1)-(2). Appellant's evidence showed he has no criminal history, is a father of three who is a respected member of his community, is a successful business owner, and is in a stable marriage. At the time of the hearing, Appellant was not in treatment for or taking medication to treat any mental health concerns. The State concedes the evidence was sufficient to support an affirmative finding Appellant "is no longer likely to act in a manner dangerous to public safety." But Appellant presented no evidence to show removing the disability is in the public interest as required by section 574.088(c)(2). Yet, my colleagues conclude the disability should be removed anyway. To do so, they turn a blind eye to Appellant's failure to present any evidence to show removing the disability is in the public interest. I, therefore, respectfully dissent.
THE PUBLIC INTEREST
Section 574.088 is a federally-approved "qualifying relief program" available to applicants like Appellant who are seeking relief from firearms disabilities in mental health cases. See Tyler v. Hillsdale Cnty. Sheriff's Dep't, 837 F.3d 678, 681-83 (6th Cir. 2016); see also https://www.atf.gov/file/155981/ (last visited February 23, 2024) (Section 574.088 approved as a qualified relief of disability program in 2010).
Section 574.088 was enacted in response to the NICS Improvement Amendments Act of 2007, which authorized federal grants to encourage the states to supply accurate and up-to-date information to federal firearm databases. Pub. L. No. 110-180, §§ 103, 105, 121 Stat. 2568-69 (2008) (NICS Act of 2007). Grant eligibility was based, in part, on the creation of a relief-from-disabilities program allowing individuals barred from gun ownership by 18 U.S.C. § 922(g)(4) to apply to have their rights restored. Id.; see 18 U.S.C. § 922(g) (prohibiting certain categories of people from gun ownership, including anyone "who has been adjudicated as a mental defective or who has been committed to a mental institution."). The NICS Act of 2007 requires State-level qualifying programs to provide that "a State court, board, commission, or other lawful authority shall grant the relief . . . if the circumstances regarding the disabilities . . . and the person's record and reputation, are such that the person will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest." Pub. L. No. 110- 180, § 105(a)(2), 121 Stat. at 2569-70 (emphasis added). The State program must also allow State-court review of application denials. Id. § 105(a)(3), 121 Stat. at 2570.
Section 574.088 and its federal counterparts each require a public-interest finding to remove a firearms disability. Whereas the federal statutes require a finding that removing the disability is "not contrary to the public interest," section 574.088 requires a finding that removing the disability is "in the public interest." The statutes do not define "the public interest," and an exhaustive review of state and federal authorities uncovered no authority analyzing what evidence an applicant must present to show removal of the disability is "in the public interest." However, federal courts have recognized the "the public interest" requirement is an "amorphous" standard, which the courts have not defined:
Notwithstanding the federal standard's long history, we have found little case law illuminating what constitutes "not contrary to the public interest." In addressing the two-pronged standard as found in 18 U.S.C.A. 925(c), the Third Circuit has characterized the standard as "amorphous." Pontarelli v. U.S. Dep't of Treasury, 285 F.3d 216, 225 (3d Cir. 2002) (en banc); see also McHugh v. Rubin, 220 F.3d 53, 59 (2d Cir. 2000) (stating "the standard for granting relief [under section 925(c)] is worded ... broadly" and implicates "the broad policy question of what is in the 'public interest'").In re E.C., No. A-3713-13T2, 2015 WL 4112097, at *6 (N.J.Super.Ct.App.Div. July 8, 2015) (per curiam). The standard remains amorphous today. What is clear, however, is no court has granted relief from a firearms disability without evidence of why doing so is in the public interest.
THE EVIDENCE
Appellant presented no evidence showing removing the disability is in the public interest as required by section 574.088(c)(2). When asked the reason he was seeking to have the firearm disability removed, Appellant told the court:
I just want to hunt again. It's something I have done my whole life, and always, you know, a big part of my life and my friends and relationships, and I really want to teach my son, be able to have the opportunity for my son like my dad taught me.
According to Appellant, he used to go dove, quail, and duck hunting with his friends "a few times a month" during hunting season. Appellant also testified he did not need to purchase the AR-15, but it would be "nice" to have one because his friends own similar firearms to hunt hogs. Appellant's testimony concerning his desire to own firearms and hunt with friends and family was the only evidence presented below concerning any interest in removing the disability.
At the hearing, Appellant's trial counsel argued removing the disability is in the public interest because hunting is legal in Texas, and Appellant wants to hunt and have shotguns in his house:
The second required finding is removing the person's disability to purchase a firearm is of public interest. I say it is public interest for this reason: One, hunting is legal in Texas. Purchasing firearms are legal in Texas. The United States Supreme Court says that you generally have an actual constitutional right to purchase firearms. If he is not subject to a mental disability that would preclude him from doing so, he should have the right to do it. That is in fact the public interest.
If he wants to hunt, he should be able to hunt. If he wants to have shotguns in his house in order to help facilitate doing that, we think he should do it. We think it would be in the public interest to remove this
disability, so, you know, if you make this order, it is going to go to the Texas Department of Public Safety, who is going to send it to the FBI because of what's going on now. He's on the list of the FBI. If he tries to buy it, it is going to show up that he was committed to an institution for a mental illness, and that was in 1992. Whatever weight that might have in 1992, clearly, based on the evidence we presented today, has no weight in 2022. So we'd ask the Court enter the order required under Section 574.088 and remove the disability.
Those reasons, however, do not support a finding, or the majority's conclusion, that removing the disability is in the public interest. At most, the evidence and counsel's argument show removing the disability is in Appellant's interest because he wants to hunt and own guns.
Moreover, although evidence of Appellant's good character, lawfulness, and reputation may be relevant to whether removing the disability is not contrary to the public interest, such evidence sheds no light on whether removing the disability is affirmatively in the public interest. The plain language of section 574.088(c)(2) requires proof of the latter. But the majority applies a standard similar to the former by finding the evidence sufficient to establish the public interest prong because "[t]here was no evidence that removing J.M.P. Jr.'s disability to purchase a firearm was not in the public interest, . . . ." I disagree with the majority's analysis.
Appellant failed to present any evidence explaining how or why allowing him to own or possess firearms is in the public interest. I would, therefore, affirm the trial court's denial of the petition based on Appellant's failure to put on any evidence of "in the public interest."
RESPONSE TO THE CONCURRENCE
I find it necessary to briefly address Justice Miskel's concurring opinion. In it, my colleague states "the dissent is skeptical of J.M.P. Jr.'s argument that his ability to own guns for hunting is in the public interest. However, the public policy of Texas affirmatively promotes the hunting of feral hogs." This misinterprets my position and assumes facts not in evidence below. Appellant presented no evidence of a need or desire to hunt feral hogs on his property. In fact, he presented no evidence or argument on the public interest prong of the statute at all. Appellant and his counsel simply asserted he wanted to hunt and should be able to hunt. One's desire to hunt with friends and family, without more, is not evidence of the public interest. Had the Legislature intended to allow removal of a firearms disability whenever an applicant shows he is no longer likely to act in a manner dangerous to public safety and states he wants to hunt or own guns, then the statute would not have included a separate public interest prong. After all, by applying to have the firearms disability removed, the applicant is stating he wants to own a gun. Unless the Legislature amends the statute or the Texas Supreme Court concludes the only proof needed to meet the public interest prong is a stated desire to hunt or own guns, I believe applicants must present some evidence beyond a desire to hunt or own guns to meet the requirements of the statute. Appellant failed to do so here, and I would affirm the trial court's decision.
Further, my colleague misinterprets the trial court's ruling and its effect when she states, "the trial court's decision had the effect of disarming a citizen of sound mind based exclusively on his past commitment as a teen." In my view, the trial court correctly denied appellant's application because he presented no evidence to show why removing the disability is in the public interest. Had appellant advocated for himself in the trial court as my colleague does in her concurrence, the trial court may have reached a different decision. Under this record, however, I maintain the trial court properly denied the application because appellant did not show, nor did he even attempt to show, how and why removing the disability for him to purchase a firearm is in the public interest.
CONCLUSION
My colleagues in the majority resolve this case of first impression by concluding it is in the public interest to remove the firearms disability because Appellant stated he wants the disability removed and presented evidence he is no longer likely to act in a manner dangerous to public safety. This suggests the majority has determined owning firearms is in the public interest as a matter of law and, therefore, a separate inquiry into the public interest prong is unnecessary when a movant presents sufficient evidence to support an affirmative finding under subsection (c)(1).
But the right to bear arms is not absolute. Wilson v. State, 44 S.W.3d 602, 604 (Tex. App.-Fort Worth 2001, pet. ref'd); Ford v. State, 868 S.W.2d 875, 878 (Tex. App.-Houston [14th Dist.] 1993, pet. ref'd). The Texas Constitution gives the Legislature the power to regulate that right. Tex. Const. art. I, § 23 ("Every citizen shall have the right to keep and bear arms in the lawful defence of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime."). Section 574.088 is an example of the Legislature's exercise of its regulatory power. If the Legislature had not intended for courts to engage in a separate inquiry into whether removal of a firearms disability is in the public interest, it would not have included subsection (c)(2) in the statute. By conflating subsections (c)(1) and (c)(2), the majority rewrites the statute and sets a dangerous precedent.
This result-oriented opinion has no legal or factual support and is a poorly-veiled attempt to favor gun rights over public safety without a factual basis to do so. Because the majority removes Appellant's firearms disability without evidence to support a finding that doing so is in the public interest, I respectfully dissent.