Background Checks

Texas Laws & Federal Regulations

Texas Laws

Section 411.052 of the Texas Government Code
This statute discusses the state's obligation to establish a procedure to provide federal "prohibited person information" to the FBI for use with the National Instant Criminal Background Check System (NICS).
Section 411.0521 of the Texas Government Code
This statute discusses certain situations where a clerk of the court has a duty to report certain information to the Texas Department of Public Safety when a person has been deemed by the court to be mentally incapacitated.
Section 574.088 of the Texas Health and Safety Code
This statute provides a process by which a person who had been deemed mentally incapacitated by a court but has now been discharged from court-ordered mental health services may petition to have their federal firearms restrictions removed.

Federal Regulations

Code of Federal Regulations, Title 28, Part 25, Subpart A
These federal regulations deal with the National Instant Criminal Background Check System (NICS).

Understanding the Law

See other pages of this guide for more information on buying and transferring firearms, restrictions on felons, and licenses to carry firearms.

When is a background check required? What laws govern background checks?

Background Check Procedures in Texas
This page describes what background check laws apply in Texas when a firearm is sold. Sales by licensed dealers and private sellers are discussed. The page is provided by the Giffords Law Center, a nonprofit devoted to preventing gun violence.
What Form of Identification Must a Licensee Obtain From a Transferee of a Firearm?
This page from the ATF describes what types of ID licensed dealers may accept when selling a firearm that requires a federal background check.

National Instant Criminal Background Check System (NICS)

About NICS
This website provided by the FBI provides information about the National Instant Criminal Background Check System including how background checks are conducted, privacy of personal information, and who may be denied.
FAQs: National Instant Criminal Background Check System (NICS)
This page from the ATF provides answers to common questions about the National Instant Criminal Background Check System. Note: Use the "Next" button below the list of questions to see more pages.
Mental Health Reporting in Texas
This page describes Texas a law passed in 2009 that requires the submission of certain information to the FBI for use in NICS. This reporting is required in certain specific situations when a person has been deemed mentally incapacitated by a court. The page is provided by the Giffords Law Center, a nonprofit devoted to preventing gun violence.

Failed Background Checks

There are many reasons a person might fail a background check or otherwise be barred from purchasing or possessing a firearm. Below is information about some possible reasons. For information about restrictions on convicted felons, see the felons and firearms page of this guide.

Why might a person fail a background check?

Domestic Violence and Firearms in Texas
This page describes situations where perpetrators of domestic violence might be barred from purchasing or possessing a firearm. The page is provided by the Giffords Law Center, a nonprofit devoted to preventing gun violence.
If a transferee receives a “denied” response from NICS, can the transferee find out why he or she was denied?
This FAQ from the Bureau of Alcohol, Tobacco, and Firearms (ATF) describes how people can find out why they have failed the NICS background check.
Reasons NICS Background Checks are Denied or Delayed
This page from the FBI has information about why a NICS background check might be denied or delayed.

Appeals Process

NICS Appeals and Voluntary Appeal File (FBI)
If you believe you have been wrongfully denied a firearm transfer or pawn redemption due to a failed NICS background check, you may request an appeal through the Federal Bureau of Investigation.

Delayed Background Checks Due to COVID-19

Gun purchasers may experience delays in federal background checks processed through the NICS due to the COVID-19 pandemic.

A NICS Delay... (ATF)
This brochure from the ATF describes the law about transfers of firearms when a NICS background check has been delayed.
Section 922(t) in Title 18 of the U.S. Code
This federal law, added as part of the Brady Act, discusses firearm background checks. It includes a provision that allows dealers to transfer a firearm in certain circumstances when a NICS response has not arrived after 3 business days have elapsed since the dealer contacted the system.
Section 478.102, Chapter II, Title 27, Code of Federal Regulations
This federal regulation sets out rules for how FFL dealers must conduct background checks. It includes a provision that allows dealers to transfer a firearm in certain circumstances when a NICS response has not arrived after 3 business days have elapsed since the dealer contacted the system.

Medical Marijuana and Gun Rights

Under the restrictions of the federal Gun Control Act, it is illegal for a person "who is an unlawful user of or addicted to any controlled substance" to possess, receive, or transport firearms or ammunition. This has raised concerns that participating in a medical marijuana program may cost patients their rights to possess firearms. However, the Texas Department of Public Safety has stated in an FAQ that they do not believe participation in the state's CUP program disqualifies a person from possessing a firearm or obtaining a Texas License to Carry, although it's possible that a patient's underlying condition may disqualify them.

The following links provide more information and context but do not yet address how Second Amendment rights may be affected by the use of CBD or hemp-derived products as that is still a developing area of law.

Section 922 in Title 18 of the U.S. Code
This section of the U.S. Code discusses various unlawful acts related to guns. Subsection (g) sets out who may be barred from possessing a firearm, including those who are "an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802))." Hemp and hemp-derived substances, including CBD, were removed from the Controlled Substances Act in 2018, but marijuana and substances containing THC are still controlled substances under this law.
Bureau of Alcohol, Tobacco, and Firearms open letter re: medical marijuana
In 2011, the ATF clarified that using marijuana, even if it was for medicinal purposes, could qualify someone as an unlawful user or addict of a controlled substance under the Gun Control Act.
Texas Dept. of Public Safety Compassionate Use Program FAQ
Texas DPS states that they do not believe participation in the CUP necessarily disqualifies a patient from obtaining or maintaining a Texas License to Carry, although other factors may apply. Please see question #13 for more details.
Will Texans give up gun rights to get medical marijuana? Federal government says they have to.
This article from the Dallas Morning News discusses the conflict between medical marijuana laws and the right to possess firearms under the federal Gun Control Act.

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