The National Instant Criminal Background Check System (NICS)

The NICS is a computerized system established under the Brady Handgun Violence Prevention Act of 1993 (Brady Act), Public Law 103-159, to provide information to federal firearms licensees (FFLs) on whether a prospective purchaser is eligible to receive or possess firearms. The NICS was implemented on November 30, 1998, and is a coordinated effort between local, state, and federal agencies. NICS checks are conducted by both the NICS Section of the FBI’s Criminal Justice Information Services (CJIS) Division, and by state agencies acting as points of contact (POCs) for processing NICS checks for FFLs in their state. Before transferring a firearm to a non-licensed individual, an FFL must, pursuant to Title 18, United States Code (U.S.C.), Section 922(t), contact the NICS for a background check on the prospective transferee. The NICS then checks automated databases and, in cases where additional information is needed, makes follow-up requests to agencies such as the police, prosecutors, or the courts, that may have relevant information demonstrating whether the individual is prohibited from receiving a firearm under state or federal law. The NICS has three business days to determine whether a proposed gun transfer is prohibited. If the NICS has not been able to make a definitive determination within that time frame, the FFL may lawfully transfer the firearm.

The NICS Improvement Amendments Act of 2007, Pub. L. 110-180 (“the NICS Improvement Act”), was signed into law on January 8, 2008. The NICS Improvement Act amends the Brady Handgun Violence Prevention Act of 1993 (“the Brady Act”) (Pub. L. 103-159), under which the Attorney General established NICS. The Brady Act requires Federal Firearms Licensees (FFLs) to contact the NICS before transferring a firearm to an unlicensed person for information on whether the proposed transferee is prohibited from receiving or possessing a firearm under state or federal law.

The NICS Improvement Act was enacted in the wake of the April 2007 shooting tragedy at Virginia Tech, wherein the shooter was able to purchase firearms from an FFL because information about his prohibiting mental health history was not available to the NICS and the system was therefore unable to deny the transfer of the firearms used in the shootings. The NICS Improvement Act seeks to address the gap in information available to NICS about such prohibiting mental health adjudications and commitments and other prohibiting factors. Filling these information gaps will better enable the system to operate as intended to keep guns out of the hands of persons prohibited by federal or state law from receiving or possessing firearms. The automation of records will also reduce delays for law-abiding gun purchasers.

During the 2009 legislative session, HB 3352 (Naishtat/Ellis) was passed in order to implement the requirements of the NICS Improvement Act. Clerks of courts that hear the following types of cases are required to report to DPS within 30 days:
-order for inpatient mental health services;
-acquittal by reason of insanity;
-commitment to long-term placement in residential care under Ch. 493 Health & Safety Code;
-appointment of a guardian of an incapacitated adult; and
-determination of incompetence to stand trial.

The bill also creates a procedure for a person subject to one of these disabilities to seek relief, and requires reporting of those outcomes.

The most difficult compliance issue for clerks is the federal requirement, passed along in HB 3352, that clerks are to look all the back to Sept. 1, 1989 for orders in the above categories. Judge Guy Herman, Travis County, the Presiding Statutory Probate Judge, has issued an order to statutory probate clerks to begin the retrospective reports for the last five years (9-1-4 to 9-1-09), and to work on the 15 years before that by Sept. 1, 2011.