J.M.P., Jr. v. the State of Texas

Concurring Opinion Filed March 19, 2024

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00878-CV

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

CONCURRING OPINION
Before Justices Partida-Kipness, Reichek, and Miskel
Concurring Opinion by Justice Miskel
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.”1 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.

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

I note that J.M.P. Jr. does not cite 34 U.S.C. § 40911(c). However, the language he refers to is
1

contained in that statute.
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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

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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
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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)2 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).

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

2
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.”).
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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

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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,”3 “law-abiding,”4

“responsible”5 citizen of “sound mind”6 over the three decades between his brief

commitment as a teenager and the trial of this cause when he was a middle-aged

man.

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

3
Bruen, 597 U.S. at 8.
4
Bruen, 597 U.S. at 8; Heller, 554 U.S. at 635.
5
Heller, 554 U.S. at 635.
6
Daniels, 77 F.4th at 349.
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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
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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

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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.

/Emily A. Miskel/
220878cf.p05 EMILY A. MISKEL
JUSTICE

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