During COVID, could a Texas gun dealer accept a driver's license whose expiration date was extended by the Governor's order?

Plain-English summary

Early in the COVID-19 disaster, the Governor directed the Department of Public Safety to temporarily waive expiration dates for Texas driver's licenses and ID cards that expired on or after March 13, 2020, suspending two administrative rules so those documents would stay valid until 60 days after DPS announced normal operations had resumed. A state representative asked the AG how that extension affected federally licensed firearms dealers, because the federal form used to transfer a firearm, ATF Form 4473, requires the dealer to record the expiration date of the government ID the buyer presents, and question 18.a calls for the "Expiration Date of Identification (if any)." The concern was buyers whose only photo ID was a license that had expired on or after March 13, 2020.

The AG laid out the federal framework. ATF Form 4473 exists under federal statute and regulations: a dealer cannot transfer a firearm without recording the transaction on the form, must verify the buyer's identity by examining an identification document, and ATF guidance says the document must be valid, meaning unexpired. The AG stressed that how to complete an ATF-promulgated form is best answered by the ATF itself, that any guidance from the AG's office is not binding on the ATF, and that the office had asked the ATF for input but had not received it. So the AG refrained from giving a definitive method and instead discussed the implications and options.

On the merits, the AG made one clear point: a Texas license showing an expiration date of March 13, 2020, or later is not expired under the Governor's suspension. It then evaluated the two approaches the representative proposed. Treating the license as having no expiration date was not advisable, because a future date does exist after which the license will expire, and leaving question 18.a blank suggests the ID never expires, while federal law (18 U.S.C. section 924(a)(1)(A)) prohibits knowingly making a false statement in a dealer's records. Adding 60 days to the printed date was also not advisable, because no licenses had actually expired under the extension yet (DPS had not given the triggering notice), so a date computed that way would not accurately represent the legal expiration date. The AG ultimately left it to the ATF to decide the appropriateness of any entry on the form, and noted as a practical matter that most people with a recently expired license can renew online and use the new expiration date.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule mentioned here.

What the opinion meant for those who asked

For firearms dealers and their customers in the spring of 2020, the opinion's reading was that a COVID-extended Texas license was still a valid, unexpired ID, but that the practical question of how to record its expiration date on the federal form belonged to the ATF, not the Texas AG. The AG warned dealers away from two tempting shortcuts: do not treat the license as having no expiration date, and do not just add 60 days to the printed date, because both could misstate the legal expiration date and federal law penalizes false entries in dealer records. The opinion's most useful practical takeaway for buyers was that someone whose license expired on or after March 13, 2020, can usually renew online and obtain a new expiration date to use on the form. The AG was explicit that it was deferring the definitive answer to the ATF and had not received the federal guidance it requested.

Common questions

Q: Was a COVID-extended Texas driver's license still valid as ID?
A: Yes. The AG concluded a license showing an expiration date of March 13, 2020, or later was not expired under the Governor's suspension until 60 days after DPS announced normal operations had resumed.

Q: Could a gun dealer just leave the expiration-date field blank?
A: The AG advised against it. A future expiration date does exist, and leaving question 18.a blank suggests the ID never expires; federal law prohibits knowingly making a false statement in a dealer's records.

Q: Could the dealer add 60 days to the printed expiration date?
A: The AG said that was also not advisable, because no licenses had actually expired under the extension yet, so a date figured that way would not reflect the real legal expiration date.

Q: Who decides the right way to fill out the form?
A: The ATF. The AG stressed that completing a federal form is the ATF's domain and its own guidance does not bind the ATF, so it left the appropriateness of any entry to the ATF. It also noted most holders can renew online and use the new date.

Background and statutory framework

The license extension rested on the Governor's authority to suspend laws and rules during a disaster (Government Code section 418.016) and the suspension of 37 Texas Administrative Code sections 15.32 and 15.34, with section 15.35 (renewal of a license expired over two years) relevant to the online-renewal point. The federal firearms framework came from 18 U.S.C. section 923(g)(1)(A) (dealer recordkeeping), the implementing rules 27 C.F.R. sections 478.124 (Form 4473 and identity verification) and 478.11 (definition of "identification document"), and the false-statement prohibition in 18 U.S.C. section 924(a)(1)(A). The AG cited Montgomery v. Cuomo, 291 F. Supp. 3d 303 (W.D.N.Y. 2018), for a description of the role of ATF Form 4473 in the background-check process.

Citations and references

Statutory and regulatory provisions:

• Tex. Gov't Code § 418.016
• 37 Tex. Admin. Code §§ 15.32, 15.34, 15.35
• 18 U.S.C. § 923(g)(1)(A); § 924(a)(1)(A)
• 27 C.F.R. § 478.124; § 478.11

Cases:

• Montgomery v. Cuomo, 291 F. Supp. 3d 303 (W.D.N.Y. 2018)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0305
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2020/kp-0305.pdf

Original opinion text

May 7, 2020

The Honorable Briscoe Cain
Chair, House Select Committee on Driver's License Issuance & Renewal
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. 0305

Re: Extension of driver's license expiration dates due to COVID-19 and its effect on firearms purchases (RQ-0346-KP)

Dear Representative Cain:

You ask for an opinion on "how the Governor's executive order extending the expiration date of a Texas driver's license that expired on or after March 13, 2020 affects a federally licensed firearm dealer in the transfer/sale of a firearm to a Texas resident who attempts to use" such license to purchase a firearm.[1] Your question arises in the context of the COVID-19 pandemic and the Governor's proclamation of March 13, 2020, declaring a state of disaster in Texas.[2]

As background, you tell us that on March 18, 2020, the Governor "directed the Department of Public Safety (DPS) to temporarily waive expiration dates" for driver's licenses and other identification forms.[3] See Request Letter at 1; See also TEX. GOV'T CODE § 418.016 (authorizing the Governor to suspend certain laws and rules). You refer us to DPS guidance stating that a Texas driver's license or identification card that expires on or after March 13, 2020, "falls under the period that encompasses the State of Disaster Declaration related to COVID-19 and will remain valid for 60 days after which time DPS issues public notice that the extension period for this disaster declaration has been lifted."[4] Request Letter at 2 (quoting from DPS press release from March 19, 2020).[5] You tell us the specific provisions suspended are rules 15.32 and 15.34 in chapter 37 of the Texas Administrative Code. Id.; see also 37 TEX. ADMIN. CODE §§ 15.32 (Tex. Dep't of Pub. Safety, Expiration Date on Expired License), 15.34 (Tex. Dep't of Pub. Safety, Renewal Period Prior to Expiration).

You explain that the temporary suspension of the expiration dates prevents Texas gun stores from "selling firearms to Texas residents whose only form of government issued identification containing their name, date of birth, and photograph is [a] driver license that expired on or since March 13, 2020."[6] Request Letter at 3. The reason, you explain, is that the federal form required for transferring a firearm-ATF Form 4473-requires the "seller to record the expiration date of the government identification document" used to purchase the firearm. Id.[7] You state that because driver's licenses "that expired on or after March 13, 2020 have been extended for 60 days after DPS provides further public notice that normal Driver License operations have resumed, there is currently no exact date" the driver's license expires. Id. at 4. You ask specifically whether question 18.a on ATF Form 4473 could be properly completed "if for example, 60 days were added to the expiration date printed on the face of the" driver's license. Id. And given that question 18.a requires the "Expiration Date of Identification (if any)," you alternatively ask "whether a driver license could, for the time being, be legally treated as having no expiration date." Id. at 4-5.

The Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") promulgated ATF Form 4473 under the authority of title 18, United States Code, section 923(g)(1)(A).[8] Subsection 923(g)(1)(A) provides, in relevant part, that a "licensed dealer shall maintain such records of . . . sale, or other disposition of firearms . . . for such period, and in such form, as the Attorney General may by regulations prescribe." 18 U.S.C. § 923(g)(1)(A). Rule 478.124, adopted thereunder, prohibits licensed dealers from selling or otherwise disposing "of any firearm to any person, other than another licensee, unless the licensee records the transaction on a firearms transaction record Form 4473." 27 C.F.R. § 478.124(a). Rule 478.124 also requires the dealer to "verify the identity of the transferee by examining the identification document (as defined in § 478.11) presented, and [to] note on the Form 4473 the type of identification used." 27 C.F.R. § 478.124(c)(3)(i). Rule 478.11, referenced in Rule 478.124(c)(3), defines an "identification document" as a

document containing the name, residence address, date of birth, and photograph of the holder and which was made or issued by or under the authority of the United States Government, a State, political subdivision of a State, . . . which, when completed with information concerning a particular individual, is of a type intended or commonly accepted for the purpose of identification of individuals.

27 C.F.R. § 478.11. An ATF guidance document advises that the "identification document must also be valid (e.g., unexpired)."[9] See Form 4473, OMB No. 1140-0020 at 5 (Oct. 2016) (question 18.a instructions requiring the buyer to provide a valid government-issued photo identification document to the seller).

The question how to appropriately complete a form promulgated by the ATF is best answered by that federal agency.[10] The ATF regulates and enforces federal laws regarding the transfer of firearms, and any guidance provided by this office on the issue is not binding on the ATF. We therefore refrain from providing definitive guidance on how to comply with ATF procedures. But we can generally discuss the implications of the driver's license extension and possible options for completing ATF Form 4473. As an initial matter, we note that a Texas driver's license that on its face lists an expiration date of March 13, 2020, or later is not expired under the Governor's suspension of laws and related DPS guidance.

With regard to completion of ATF Form 4473, we first consider your suggestion that the license be temporarily treated as having no expiration date. See Request Letter at 4-5. A driver's license that on its face expires on or after March 13, 2020, remains valid until 60 days after the DPS issues public notice that the extension period for this disaster declaration has been lifted.[11] After that day, the license will expire. And while that date may currently be undetermined, a future date exists after which the driver's license is no longer valid. To the extent a seller leaves question 18.a blank, the form suggests the identification document never expires. Title 18, section 924(a)(1)(A) of the United State Code prohibits a person from "knowingly mak[ing] any false statement or representation with respect to the information required . . . to be kept in the records" of a dealer. 18 U.S.C. § 924(a)(1)(A). Thus, we cannot conclude that treating the license as having no expiration date is an advisable solution for a seller.

You also suggest that the seller could add 60 days to the expiration date printed on the face of the identification document. See Request Letter at 4. You propose that "a license that expired March 13, 2020 would then be legally considered to expire on May 12, 2020," and you suggest that the seller fill in question 18.a with the May 12, 2020 date. Id. n.9. Under DPS guidance, licenses will expire 60 days "after which time DPS issues public notice that the extension period for this disaster declaration has been lifted."[12] No such notice has been given, so no licenses have yet expired under this provision. Thus, adding 60 days to the expiration date printed on the driver's license as an expiration date is not an accurate representation of the legal expiration date and is also not an advisable solution for a seller.[13] Accordingly, we must ultimately leave it to the ATF to determine the appropriateness of any entry on ATF Form 4473.

S U M M A R Y

In the context of the COVID-19 pandemic and the declared state of disaster in Texas, the Governor suspended provisions of the driver's license regulations regarding license expiration dates. A Texas driver's license that on its face lists an expiration date of March 13, 2020, or later is not expired under the Governor's suspension of laws and related DPS guidance until 60 days after the DPS provides further public notice that normal Driver's License operations have resumed.

Treating the driver's license as if it has no expiration date or adding a period of 60 days to the expiration date shown on the face of the driver's license are not advisable solutions for purposes of the ATF Form 4473 required in a transfer of firearms. The federal Bureau of Alcohol, Tobacco, Firearms, and Explosives regulates and enforces federal laws regarding such transfers, and any guidance provided by this office on the issue is not binding on the ATF. We therefore leave it to the ATF to determine the appropriateness of any entry on ATF Form 4473.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy First Assistant Attorney General

RYAN M. VASSAR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Briscoe Cain, Chair, House Select Comm. on Driver's License Issuance & Renewal, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Apr. 14, 2020), https://www2.texasattorneygeneral.gov/opinions/opinions/51paxton/rq/2020/pdf/RQ0346KP.pdf ("Request Letter").

[2] See Governor of the State of Texas Disaster Proclamation (Mar. 13, 2020). The Governor extended the declaration on April 12, 2020.

[3] See https://gov.texas.gov/news/post/governor-abbott-dps-waive-expiration-dates-for-driver-licenses.

[4] The governor's press release states that the suspension of the administrative code provisions "will be in effect until 60 days after the DPS provides further public notice that normal Driver License operations have resumed." We acknowledge that this language differs from the language in the DPS press release to which you refer. For the purposes of this opinion, the relevant issue is not how long the driver's license remains valid but that there is a future date after which the driver's license is no longer valid.

[5] See https://www.dps.texas.gov/director_staff/media_and_communications/pr/2020/0319a.

[6] Potential buyers may provide a combination of specified valid government-issued documents to satisfy the identification requirements of the law. See Form 4473, OMB No. 1140-0020 at 5 (Oct. 2016) (question 18.a instructions). However, your question and this opinion is limited to those individuals "whose only form of government issued identification containing their name, date of birth, and photograph is a driver's license that expired on or since March 13, 2020." Request Letter at 3.

[7] See also Form 4473, OMB No. 1140-0020 at 2 (Oct. 2016).

[8] A recent federal judicial opinion described the role of ATF Form 4473: The Brady Handgun Violence Prevention Act (the "Brady Act") created the National Instant Criminal Background Check System ("NICS Background Check") to prevent the transfer of firearms to individuals barred from firearm possession by federal or state law. All persons attempting to purchase firearms must undergo an NICS Background Check. As part of that procedure, prospective customers must complete a firearms transaction record known as the ATF Form 4473, which elicits personal information and propounds questions to certify that the customer is qualified to possess a firearm under the enumerated Brady Act factors. The Form 4473 information is then compared against databases from multiple agencies, including the Federal Bureau of Investigation's National Crime Information Center. Montgomery v. Cuomo, 291 F. Supp. 3d 303, 307 n.1 (W.D.N.Y. 2018) (citations and quotation marks omitted).

[9] See Bureau of Alcohol, Tobacco, Firearms, and Explosives, What form of identification must a licensee obtain from a transferee of a firearm?

[10] This office sought input from ATF in answering your request, but to date we have not received guidance on the appropriate method for completing ATF Form 4473 for those Texans whose licenses list an expiration date on or after March 13, 2020.

[11] See also supra note 4.

[12] Id.

[13] As a practical matter, most individuals with expired driver's licenses may renew their driver's license online. The expired driver's license cannot be expired over 2 years. See 37 TEX. ADMIN. CODE § 15.35 (Tex. Dep't of Pub. Safety, Renewal of a Texas Driver License Expired Over Two Years). By definition, here, a driver's license that expired on or after March 13, 2020, has been expired for less than two years. Thus, provided an individual satisfies the other conditions that apply to a driver's license renewal, he or she can renew his or her driver's license online and use the new expiration date to complete ATF Form 4473. See supra note 4.