Texas HB 218 (Extreme Risk Protective Orders) — Legal Analysis

What the bill does.

• Adds a new subchapter to Code of Criminal Procedure chapter 7B. Family or household members, or peace officers, can apply for an order against someone who poses an "immediate and present danger" to anyone, including themselves, because of a serious mental illness and access to firearms.

• Lets a court issue a temporary order without notice or a hearing, on "reasonable cause." The order bars buying or possessing guns, requires surrender within 24 hours, and can require a mental health examination.

• Requires a hearing within 14 days. A one-year order issues if the court finds danger by clear and convincing evidence, and it can be renewed for another year.

• Sends the person's information to DPS and the FBI's background-check system, suspends any license to carry, and sets rules for returning or selling surrendered guns.

• Makes possessing a gun in violation of an order a Class A misdemeanor, and lying to a peace officer to get one filed a Class B misdemeanor.

• Repeals Code of Criminal Procedure chapter 7C, the 2025 law that bars enforcing extreme risk orders. Where it is most exposed.

• Federal lifetime ban: A final order is a court finding that a person is dangerous because of mental illness. That matches the current federal definition of being "adjudicated as a mental defective," which carries a permanent federal firearms ban. The bill's one-year limit and return procedure may not work as intended.

• Ex parte stage: Guns can be taken for up to 14 days on a written application alone. That is common in other states' laws but draws due process challenges.

• Compelled examination: A temporary order can require a psychiatric exam before the person has had any hearing. This memo summarizes public law and litigation as of the date above. It is not legal or medical advice.

What the bill says

HB 218, by Rep. Johnson, runs 15 pages and amends four codes.¹ Its process has three stages: application, temporary order, and final order.

Who can apply and what they must show

Element	Rule	Notes
Who may apply (art. 7B.152(a))	A family or household member; the parent or guardian of a minor family or household member; or a peace officer	"Family" and "household" follow Family Code chapter 71. Dating partners outside the home, clinicians, and school officials cannot apply.
Contents (art. 7B.152(b))	Sworn, detailed allegations from personal knowledge of dangerous conduct caused by a serious mental illness; any medical records; the guns believed present; a statement of belief in immediate danger	A false sworn statement in an official proceeding can be aggravated perjury, a third-degree felony.²
"Serious mental illness" (art. 7B.151(5))	Borrows Insurance Code §1355.001	That list includes schizophrenia, bipolar disorder, major depressive disorder, OCD, PTSD and others.³
Where (art. 7B.152(c))	District, juvenile, statutory county or constitutional county court in the county where the applicant or respondent lives	Constitutional county judges need not be lawyers.
Confidentiality (art. 7B.153)	Medical or mental health details are struck from public records and held by the court

Temporary and final orders

Stage	Standard	Process	Effect
Temporary ex parte order (art. 7B.154)	"Reasonable cause to believe" the respondent poses an immediate and present danger	No notice, no hearing	Bars buying or possessing guns; court may order surrender within 24 hours, surrender of a carry license, and a mental health exam
Hearing (art. 7B.155(a)–(c))	—	Within 14 days; personal notice; court must weigh exam results, threats, violence, order violations, certain convictions and current substance abuse
Final order (arts. 7B.155(d), 7B.156)	Clear and convincing evidence of immediate and present danger from serious mental illness and access to guns	Findings stated in the order	Gun ban for 1 year; surrender within 24 hours; carry license suspended; outpatient treatment if the examiner recommends it
Renewal (art. 7B.157(b))	Same factors	Hearing with personal notice	One more year, at most
Early review (art. 7B.157(c))	Respondent must show "no continuing need"	Motion allowed after day 91	Order stays in force unless the court makes that finding

Enforcement, records and gun return

• Reporting. The court clerk sends identifying information to DPS within 24 hours. DPS must forward it to the FBI's NICS background-check system within 24 more hours (new Gov't Code §411.0522).
• Return of guns (new CCP art. 18.192). After the order ends, the agency runs a criminal-history check under 18 U.S.C. §922(g) and state law. If the person may lawfully possess guns, the agency mails a notice. The person then has 120 days to ask for them back. Guns may not be destroyed or forfeited. They may be sold through a dealer, with the proceeds, less costs, going to the owner.
• Carry licenses. An active order bars obtaining a license and requires suspension for the order's length (Gov't Code §§411.172, 411.187).
• Offenses. Possessing a gun after notice of an order is a Class A misdemeanor (new Penal Code §46.04(c-1)).⁴ Lying to a peace officer to prompt an application is a Class B misdemeanor (new §37.083).⁵
• Repeal. Chapter 7C of the Code of Criminal Procedure is repealed (Section 8).
• Effective date. September 1, 2027; DPS rules due by October 1, 2027. Notes

1. H.B. 218, 90th Leg., R.S. (2027) (introduced) (copy provided by the requester).
2. Tex. Penal Code §37.03.
3. Tex. Ins. Code §1355.001.
4. Tex. Penal Code §12.21.
5. Tex. Penal Code §12.22.

Second Amendment

The final order is well supported by Supreme Court precedent. Rahimi upheld temporarily disarming people a court has found dangerous. Heller called bans on possession by "the mentally ill" presumptively lawful. The weaker points are the ex parte temporary order and the inclusion of danger to oneself.

Rahimi is the anchor

In Rahimi, the Supreme Court upheld the federal ban on gun possession by people under domestic violence restraining orders.¹ It held that an individual found by a court to pose a credible threat to another's physical safety may be temporarily disarmed.¹ The Court relied on Founding-era surety laws and "going armed" laws, which let authorities restrain people who threatened violence.¹ It stressed that the federal ban applies only after a judicial finding and lasts only as long as the order.¹

HB 218's final order tracks those features. It requires a hearing with personal notice, a finding by clear and convincing evidence, and a fixed duration of one year. That is a higher standard of proof than many domestic violence orders require.

Heller separately listed "longstanding prohibitions on the possession of firearms by… the mentally ill" among "presumptively lawful" measures.² HB 218's tie to serious mental illness lets Texas invoke that passage, which most other red flag laws cannot.

Weaker points

The ex parte order. Rahimi involved an order entered after the respondent had notice and a chance to be heard; he had in fact agreed to it.¹ ³ HB 218's temporary order issues on paper alone, under a "reasonable cause" standard, and can last up to 14 days or more if the hearing is delayed. Surety laws also involved an initial complaint before a magistrate, which helps Texas. But no Supreme Court decision squarely approves disarmament without any hearing.

Danger to oneself. Rahimi's analogues concerned threats to others. HB 218 also reaches people who are a danger only to themselves. Texas would rely on Heller's mental illness passage and on historical laws on lunacy and confinement for that part. Courts have not yet settled whether suicide risk alone fits the tradition.

How courts have ruled on red flag laws

Case	Court	Holding
R.M. v. C.M. (2024)⁴	N.Y. App. Div., 2d Dep't	Upheld New York's law against Second Amendment, due process and vagueness challenges, citing its procedural safeguards
G.W. v. C.N. (2022)⁵	N.Y. Sup. Ct., Monroe County (trial)	Held New York's law unconstitutional for lacking commitment-style protections such as a physician's evaluation; rejected on appeal in R.M.
L.M.P. matter (2026)⁶	N.J. App. Div.	Reversed a final order against a grieving mother as unsupported; an as-applied, not facial, ruling
Willey (2026)⁷	D. Md.	Rejected a facial challenge to Maryland's law where a state court had found probable cause

The pattern is consistent: appellate courts uphold red flag laws on their face and police their application case by case. HB 218's requirement of a link to serious mental illness, and its option to order a clinical exam, address the gap the G.W. trial court identified.⁵

Notes

1. United States v. Rahimi, 602 U.S. 680 (2024).
2. District of Columbia v. Heller, 554 U.S. 570, 626–27 & n.26 (2008).
3. See Constitutional Law Reporter (Rahimi conceded the order met the statutory criteria).
4. R.M. v. C.M. (N.Y. App. Div. 2d Dep't Mar. 20, 2024); see Duke Center for Firearms Law.
5. G.W. v. C.N. (N.Y. Sup. Ct. Monroe Cnty. Dec. 2022); see Duke Center for Firearms Law and The New American.
6. See Reduce the Risk (Cal. DOJ); Bearing Arms.
7. Suit by Donald Willey, No. 1:23-cv-02299 (D. Md. Mar. 20, 2026) (opinion); Bloomberg Law.

Due process and other constitutional issues

Red flag laws are most often attacked on procedure, not on the Second Amendment. HB 218's final-order stage is stronger than most states'. Its temporary-order stage has three features likely to draw challenges: no hearing, a compelled exam, and a surrender order with no protection against self-incrimination.

The ex parte temporary order

Due process usually requires notice and a hearing before the state takes property or restricts a right. Courts weigh the private interest, the risk of error and the value of extra safeguards, and the government's interest.¹ Emergency deprivations before a hearing are allowed when the state acts quickly and offers a prompt hearing afterward.²

HB 218 sets the hearing within 14 days, which is in the usual range for red flag laws. But the bill has no deadline for the hearing if service fails, and the temporary order does not expire on its own. Courts have upheld similar schemes. A respondent held under a temporary order for weeks without a hearing would have a strong as-applied claim.

The compelled mental health exam

Article 7B.154(b)(3) lets the court order an exam "for purposes of determining whether the respondent has a serious mental illness." It can do so in the ex parte order, before the respondent has had any chance to contest the application. Texas's involuntary commitment law gives far more protection before a court-ordered evaluation, including a right to counsel.³ Challengers would argue the exam is a search requiring more process, and that its results, used at the hearing, are fruit of a compelled interview.

The bill also does not say who pays for the exam or what happens if the respondent refuses.

Surrender and self-incrimination

The bill requires the respondent to hand over guns within 24 hours. A Washington appeals court held in 2022 that a similar surrender requirement violated the privilege against self-incrimination. Surrendering a gun can be testimony that the person possessed it, and the law gave no adequate immunity from later prosecution.⁴ The court also found a Fourth Amendment problem.⁴ HB 218 has no immunity provision. A respondent who is, for example, a prohibited person under federal law could face exactly that dilemma.

No right to counsel

HB 218 does not provide appointed counsel, even though the respondent is by definition alleged to have a serious mental illness. Texas commitment proceedings require appointed counsel.³ ATF's proposed definition of a federal mental health "adjudication" would require appointed counsel when there is reason to doubt a person can represent themselves (see the federal backdrop section below).⁵

Equal treatment and stigma

Most states' red flag laws apply to anyone who is dangerous, whatever the cause. HB 218 applies only to danger "as a result of" serious mental illness. That choice strengthens the Second Amendment case, through Heller's mental illness passage. But it means a dangerous person without a diagnosis is outside the law. It also links firearm removal to psychiatric diagnoses, which disability advocates may challenge as stigmatizing. A federal disability-law challenge is unlikely to succeed, because the order turns on individualized danger, not diagnosis alone.

Notes

1. Mathews v. Eldridge, 424 U.S. 319 (1976).
2. Gilbert v. Homar, 520 U.S. 924 (1997); FDIC v. Mallen, 486 U.S. 230 (1988).
3. Tex. Health & Safety Code §§574.003, 574.010 (appointed counsel; court-ordered examination in commitment proceedings).
4. State v. Flannery (Wash. Ct. App. Div. II 2022), as described by the Duke Center for Firearms Law. Verify the reporter citation before relying on it.
5. ATF, Notice of Proposed Rulemaking, RIN 1140-AB04 (May 8, 2026) (public inspection copy).

Vagueness and mens rea

The bill's standards are familiar ones, so a facial vagueness challenge is unlikely to succeed. New York's appeals court rejected one against a similar "likelihood of serious harm" standard, comparing it to language in mental health law.¹ The practical risks are in how the criminal offense is proved.

Term	Issue	Likely result
"immediate and present danger"	How imminent the danger must be	Courts read similar commitment-law phrases without difficulty²
"as a result of the respondent's serious mental illness"	Causation between diagnosis and danger	Requires evidence, often expert; the exam provision supplies it
"actual or constructive possession or control"	Guns in a shared home or a family safe	Others in the household may need to secure their own guns
"after receiving notice" (Penal Code §46.04(c-1))	What counts as notice of an ex parte order	Personal service is the safest proof

What the state must prove for the crime

The new offense applies once a person, "after receiving notice" of an order, buys, owns, possesses or controls a gun in violation of it. No mental state is stated. Texas law still requires intent, knowledge or recklessness unless a statute plainly dispenses with one.³ Because notice is an element, prosecutors would need proof the respondent was told of the order, as in prosecutions for violating other protective orders.

One gap: the bill makes owning a gun during the order a crime. A respondent who surrenders guns still owns them. Read literally, surrender would not end the violation. Courts would likely read "owns" in context to avoid that result, but the drafting invites dispute.

The false-report offense

New Penal Code §37.083 punishes lying to a peace officer to get an application filed, with intent to deceive. It does not reach a family member who files a false application directly. That conduct is already covered by aggravated perjury, a third-degree felony, because the application is sworn.⁴

Notes

1. R.M. v. C.M. (N.Y. App. Div. 2d Dep't 2024); see Duke Center for Firearms Law.
2. See Tex. Health & Safety Code §574.034 (commitment criteria).
3. Tex. Penal Code §6.02(b)–(c).
4. Tex. Penal Code §§37.02, 37.03.

Federal and Texas backdrop

Two outside laws shape HB 218 more than any court case. Texas's 2025 Anti-Red Flag Act forbids what HB 218 would create, so the bill repeals it. Federal mental health rules may turn a one-year Texas order into a permanent federal gun ban.

The 2025 Anti-Red Flag Act (CCP chapter 7C)

In 2025 the Legislature passed SB 1362, the "Anti-Red Flag Act."¹ The House approved it 86–53 and the Senate concurred 20–11.² It took effect September 1, 2025.³ It:

• bars state agencies, courts, local governments and prosecutors from adopting or enforcing any rule or order relating to extreme risk orders, unless state law specifically authorizes it;⁴
• declares unenforceable any federal measure implementing such orders that infringes due process, gun rights or free speech;⁴
• bars those entities from accepting federal grants to implement such orders;⁴ and
• makes it a state jail felony to serve or enforce an extreme risk order in Texas, unless it was issued under Texas law.⁵ HB 218 repeals the whole chapter. Strictly, chapter 7C already allows orders that state law authorizes. Repeal goes further: it would let Texas accept federal grants for these programs. The 2022 Bipartisan Safer Communities Act made such grants available.⁶ Repeal would also remove the declaration that federal measures are unenforceable.

The federal mental health prohibition

Federal law bars anyone "adjudicated as a mental defective" from possessing guns, with no time limit.⁷ ATF's current definition covers a court's determination that a person, because of mental illness, "is a danger to himself or to others."⁸

An HB 218 final order requires exactly that finding: danger to any person, including the respondent, because of serious mental illness, by clear and convincing evidence after a hearing. Read literally, a final order could make the respondent a federally prohibited person for life, long after the one-year Texas order ends. Three consequences follow.

1. Return of guns may fail. Article 18.192 requires a federal §922(g) check before return. If the order triggered §922(g)(4), the check would fail, and the agency could sell the guns instead.
2. DPS reporting feeds NICS. New Gov't Code §411.0522 sends order information to the FBI within 24 hours. How NICS codes those records will determine whether buyers are denied after the order ends.
3. Relief depends on another statute. Texas already runs a federally recognized relief program for people with mental health adjudications.⁹ HB 218 does not mention it. ATF proposed revising the definition in May 2026. The proposal would add procedural requirements for an "adjudication": a hearing, the right to present and confront evidence, counsel, appointed counsel where capacity is in doubt, notice, and at least clear and convincing evidence.¹⁰ It does not specifically address protective orders.¹⁰ An HB 218 final order meets most of those requirements but not appointed counsel.

Whether HB 218 orders trigger the federal ban is a real open question.

Other overlap

Law	Relationship to HB 218
18 U.S.C. §922(g)(8)	Federal ban for domestic violence restraining orders; applies only to intimate partners, so most HB 218 orders fall outside it
Tex. Penal Code §46.04(c)	Existing state offense for possessing a gun under a Family Code protective order; HB 218 adds subsection (c-1) beside it
Tex. Health & Safety Code ch. 573	Emergency detention; a separate route for immediate mental health crises
Tex. Const. art. I, §23	Right to keep arms; the Legislature may regulate "the wearing of arms" to prevent crime. Untested against an order like this

Notes

1. S.B. 1362, 89th Leg., R.S. (2025), §1 (enrolled text).
2. Id. (enrolled-bill certification) (enrolled .docx; Senate concurrence).
3. Acts 2025, 89th Leg., R.S., ch. 1182 (Tex. Code Crim. Proc. ch. 7C).
4. Tex. Code Crim. Proc. arts. 7C.002–7C.004 (text).
5. Tex. Code Crim. Proc. art. 7C.005 (committee text).
6. See GunCarrier (federal role limited to grant funding under the 2022 law).
7. 18 U.S.C. §922(g)(4).
8. 27 C.F.R. §478.11 (LII).
9. Tex. Health & Safety Code §574.088; Tex. Gov't Code §411.0521.
10. ATF, Notice of Proposed Rulemaking, RIN 1140-AB04 (May 8, 2026) (public inspection copy).

Other states' laws and how they fared

Texas would join 22 states, the District of Columbia and the U.S. Virgin Islands with extreme risk laws.¹ It would also leave a smaller group of states that bar such orders. HB 218's design differs from most others in one central respect: its link to serious mental illness.

Group	States	Status
Extreme risk laws in force	22 states, D.C. and the U.S. Virgin Islands, including California, Colorado, Florida, Illinois, New York and Washington¹ ²	Facial challenges have mostly failed on appeal; as-applied reversals occur
Anti-red-flag laws	Montana, Oklahoma, Tennessee, Texas, West Virginia and Wyoming³	Texas would leave this group

How HB 218 compares

Feature	Typical extreme risk law	HB 218
Trigger	Danger to self or others, whatever the cause	Danger "as a result of" a serious mental illness
Who may petition	Family, household and police; some states add clinicians, educators or others⁴	Family, household and police only
Temporary order	Ex parte, followed by a prompt hearing	Same; hearing within 14 days
Final-order standard	Varies by state	Clear and convincing evidence
Duration	Commonly up to a year, renewable	One year, one renewal
Clinical exam	Rarely ordered	Court may order one in the ex parte stage

Litigation lessons

• Facial challenges usually fail. New York's appellate division upheld that state's law in 2024, overturning trial-court rulings that had struck it.⁵ A federal court in Maryland dismissed a facial challenge in 2026.⁶
• As-applied reversals are common. A New Jersey appeals court reversed a final order against a grieving mother in January 2026, finding the evidence did not show danger.⁷
• Procedural defects draw the most traction. Washington's surrender procedure was found to violate the privilege against self-incrimination.⁸ Notes

1. Johns Hopkins Center for Gun Violence Solutions, State-by-State ERPO Data (as of October 2026).
2. GunCarrier.
3. CriminalDefenseLawyer.com (citing Mont. Code §7-1-118; Okla. Stat. tit. 21, §§1289.24b–.24c; Tenn. Code §39-7-1329; Tex. Code Crim. Proc. ch. 7C; W. Va. Code §61-7B-6; Wyo. Stat. §§9-14-302, -303).
4. See Cornell LII, ERPO; datawrapper map.
5. R.M. v. C.M. (N.Y. App. Div. 2d Dep't 2024); NRA-ILA (describing the trial-court rulings).
6. Suit by Donald Willey, No. 1:23-cv-02299 (D. Md. Mar. 20, 2026); Bloomberg Law.
7. Reduce the Risk (Cal. DOJ).
8. State v. Flannery (Wash. Ct. App. Div. II 2022); Duke Center for Firearms Law.

Assessment

HB 218's final orders would very likely survive a facial Second Amendment challenge under Rahimi and Heller. The serious questions are procedural and federal: the ex parte exam and surrender provisions, and whether a final order becomes a lifetime federal ban.

Provision	Main challenge	Litigation risk	Why
Final order, arts. 7B.155–7B.157	Second Amendment	Low	Judicial finding by clear and convincing evidence; temporary; Rahimi; Heller's mental illness passage
Temporary ex parte order, art. 7B.154	Due process; Second Amendment	Medium	No hearing; no automatic expiration if the hearing slips
Ex parte mental health exam, art. 7B.154(b)(3)	Due process; Fourth Amendment	Medium to high	Ordered before any hearing; no counsel or payment terms
Gun surrender within 24 hours	Self-incrimination	Medium	No immunity provision; Flannery
Danger to self only	Second Amendment	Medium	Rahimi's analogues addressed threats to others
Federal §922(g)(4) effect	Not a challenge to HB 218 itself	High practical impact	A final order matches the current federal "adjudicated as a mental defective" definition
Owning a gun during the order, Penal Code §46.04(c-1)	Vagueness, as applied	Low	Literal reading would criminalize ownership after surrender

Political context

The November 2026 elections improved HB 218's prospects. Democrats won the governor's and lieutenant governor's offices and the Texas House.¹ ² This memo did not check the Senate's partisan makeup for 2027. Repealing chapter 7C would reverse a law passed just two years earlier, 86–53 in the House and 20–11 in the Senate.³

Open questions to watch

• Whether ATF finalizes its proposed definition of "adjudicated as a mental defective" and how it treats protective orders
• How NICS would code HB 218 orders reported by DPS
• Whether a committee substitute adds counsel, an exam-payment rule or a self-incrimination safeguard
• Whether chapter 7C is repealed in full or amended to allow only Texas-issued orders Notes

1. KUT; FOX 4.
2. KUT.
3. S.B. 1362, 89th Leg., R.S. (2025) (enrolled-bill certification: House 86–53; Senate concurrence 20–11) (text).

Sources

Primary texts: HB 218 as filed (copy provided by the requester); Tex. Code Crim. Proc. ch. 7C; 27 C.F.R. §478.11; ATF proposed rule (May 2026). Case citations without links are from standard reporters; check them before relying on them in a filing.