Texas counties failed 800 times to report people for firearm background checks

AUSTIN (KXAN) – Across Texas, district and county clerks failed more than 800 times in recent years to report people found incompetent to stand trial to state law enforcement so they could be flagged in federal firearm background checks before purchasing a gun, according to a recent state audit.

Texas district and county clerks are required to report court orders of people charged with crimes and found incompetent to stand trial to the Texas Department of Public Safety. DPS then sends the information to the FBI for use in the National Instant Criminal Background Check System, or NICS.

“There is a breakdown in this process, you know. It’s not three or four times; it's 830 times,” said Erin Earp, senior policy counsel at Giffords Law Center, a federal and state-level gun safety organization. “It's a situation where you do not want people to have access to firearms.”

People found incompetent to stand trial are so mentally ill they can’t participate in their own defense. When that happens, they are ordered to get mental health treatment until their competency is restored. Often, they are put on a waitlist and sit in jail until they can be sent to a state hospital for restoration.

Auditors identified 1,935 times individuals on the state hospital waitlist were required to be reported to DPS, but 43% of the time the reports weren’t made. Auditors looked at cases from September 2018 to January 2024, according to the report on Texas’ competency restoration system released in late November.

The people on the waitlist “aren’t necessarily in custody,” said Earp. It’s possible they could be out on bond and try to purchase a firearm, she said.

It was also concerning, Earp added, that 145 more people were reported over a month late to DPS, according to the audit. Texas law says district and county clerks should make their reports to DPS within 30 days of certain court actions.

Auditors identified 103 counties where clerks did not make the required reports to DPS. Leading the list were Dallas County with 269 missing reports, Bexar County with 125, and Smith County with 44, the audit states.

The Office of Dallas County District Clerk Felicia Pitre said its normal reporting was interrupted by a technology issue caused by switching case management systems in May 2023.

“Regrettably, the volume of errors encountered from converted data made the application’s reporting features unreliable and inaccurate,” Pitre’s office said in a statement to KXAN. The office added that it expects to be fully compliant with state reporting by January 2025.

The Bexar County District Clerk’s Office indicated the people who weren’t reported to DPS “resulted from understanding that it was responsible for reporting individuals only to the” Texas Commission on Health and Human Services, according to the audit. The Bexar County District Clerk’s Office did not respond to KXAN’s requests for comments.

The Smith County District Clerk’s Office told KXAN it was “looking into this matter” in mid-December and did not have more information to provide.

No quality assurance

DPS told auditors it has no process to verify the accuracy and completeness of the list of incompetent individuals reported by a county.

DPS “has only two staff dedicated to managing the reporting process to the FBI, and it does not have access to (HHSC’s) waitlist to help validate whether all individuals have been reported,” auditors found.

There needs to be some “quality assurance,” Earp said.

“There's no check,” she said. “There's no quality control aspect, where they look and say, ‘Oh, we should have all these people, and we only have a subset of these people.’”

Nicole Golden, executive director of Texas Gun Sense, a gun safety advocacy organization, said “background checks can save lives.”

“It's critically important that we implement the laws we have to make sure the system is working to protect our communities,” Golden told KXAN in a statement.

Greg Hansch, executive director of National Alliance on Mental Illness Texas, said he was also concerned about the reporting lapses.

Hansch said he wanted to be careful not to blame mass and interpersonal violence on people with mental illness because they are often wrongfully accused for incidents.

“But we do support the existing prohibitions on firearms purchases for certain populations, like people who have been found incompetent to stand trial. Those exist for good reason,” Hansch told KXAN. “The law should be followed, and if it isn't followed, then it increases the likelihood of negative consequences occurring.”

Parallel to Sutherland Springs

Earp said the Texas reporting oversights are similar in nature – since they are lapses in government agencies sharing information – to a failure that allowed a gunman to purchase firearms he later used to kill 26 people and wound 22 more at First Baptist Church of Sutherland Springs in 2017.

After that mass shooting, 75 plaintiffs sued the United States alleging the U.S. Air Force was negligent for failing to report information about the shooter to the National Instant Criminal Background Check System that would have prevented him from buying the gun from a federally licensed firearm dealer. The shooter should have been denied because of a 2012 domestic violence conviction, according to media reports.

A federal district court in Texas found the U.S. was liable for damages, and the case was ultimately settled for $144.5 million.

After the Sutherland Springs mass shooting, Congress passed the “Fix NICS Act” in 2018. US Sen. John Cornyn, R-Texas, originally pushed the act, meant to ensure compliance with federal reporting laws. The act requires federal agencies to submit semiannual certifications of compliance, and it provides penalties for noncompliance, among other stipulations.

Roughly a year after the Fix NICS Act was signed into law, federal agency record submissions increased by 400%, according to a letter sent by multiple U.S. senators to the former U.S. Attorney General in 2019.

Texas’ law does not outline similar procedures to ensure district and county clerks report court orders.

Loophole closed

In 2023, after the Uvalde mass shooting, State Sen. Joan Huffman, R-Houston, authored Senate Bill 728 closing a loophole in the reporting of juveniles with serious mental illness for federal firearm background checks. Huffman’s bill – which followed extensive investigative reporting by the Texas Tribune and ProPublica – made it a law for minors who were court ordered to inpatient mental health treatment to be reported to NICS.

“Upon learning of the potential failure of district and county clerks reporting certain information to the Department of Public Safety as required by the bill, I immediately requested that the Office of Court Administration investigate compliance of this law with clerks across the state,” Huffman’s office said in a statement to KXAN. Huffman added her office would “continue to monitor compliance of this law to determine if future legislative action is necessary."

It does not appear any of the failures to report in the audit were juveniles. The State Auditor’s Office confirmed to KXAN that all the individuals counted in the report were adults.

Texas system limits

While Earp said there needs to be quality assurance that district and county clerks follow the law, she also acknowledged the rules only impact certain firearm sales.

For example, she said, private firearm sales don’t require a background check in Texas.

“If you're just a guy, and you want to sell a gun, you're not required to do a background check on the person who you're selling it to,” Earp said.