Weapons Charges in Texas: Gun Laws and Gun Crimes under Texas Law

Sometimes, just possessing a piece of property can get you arrested in Texas if it is an “illegal weapon” under the law.  Of course just because something can be used as a weapon, that’s not enough to put you at risk of being charged with a crime here in Texas.  There are many things that can be used as a weapon you can have or own without it being a crime (like a baseball bat, for instance).

For there to be a crime, the item has to be defined as an illegal weapon under either state or federal law.  For federal law weapons charges, read our earlier discussion in “Guns and Drug Trafficking:  Firearms And Mandatory Minimum Sentences Under Federal Law,” and in “Increasing Gun Control By The Federal Government Announced Today: Will Attorney General Eric Holder Decide Who Owns And Holds Guns In Texas?”

What Are Illegal Weapons in Texas? TPC 46.01

In the State of Texas, things that are considered to be illegal weapons are defined in Chapter 46 of the Texas Penal Code (TPC).  All sorts of things can be found here, from guns and knives to bombs and rockets.

Pursuant to TPC §46.01, the following have been defined as an illegal weapon in Texas:

1. Bombs;
2. Grenades;
3. Rockets;
4. Mines;
5. Firearms;
6. firearm silencers;
7. handguns;
8. knives with a blade over five and one-half inches;
9. machine guns;
10. rifles with a barrel length of less than 16 inches;
11. shotguns with a barrel length of less than 18 inches;
12. any altered shotgun or rifle with an overall length of less than 26 inches;
13. armor-piercing ammunition;
14. Hoax bombs;
15. chemical dispensing devices other than a small chemical dispenser sold commercially for personal protection;
16. zip guns; and
17. tire deflation devices, including a caltrop or spike strip.

Looking over this list, it’s pretty clear that some of these things are not very popular or commonplace.  Here in Dallas, you are not likely to be caught and charged for having a grenade in your possession, for instance.

It’s been my experience that in Texas, gun charges are the most likely arrests to be made.  Texas arrests for illegal possession or use of a firearm happen pretty often here, particularly in certain locations – like the airport.

TPC § 46.01 defines a firearm as “any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use.” A handgun is simply a firearm designed to be used with one hand.

For the defense lawyer, one of the first questions to ask after there has been an arrest for weapons, especially guns or firearms, is whether or not the weapons charge meets the definition of an “illegal weapon” under state law.

That inquiry will include a careful comparison of the actual property item against the language of TPC 46.01.  It will also involve checking current Texas weapons laws, because Texas laws change.

New Texas Weapons Laws: Effective September 1, 2019

For instance, in May 2019 a new law was passed (effective September 1, 2019) that brass knuckles, hard plastic kitty keychains, and clubs are no longer illegal weapons in the State of Texas:

• HB 446 — Relating to the criminal consequences of engaging in certain conduct with respect to certain instruments designed, made, or adapted for use in striking a person.

Read:  “New Texas laws: Brass knuckles, other self-defense items legal in Texas starting Sept. 1,” published August 28, 2019, by KDFW.

New Texas Gun Laws

The following nine (9) new gun laws also went into effect on September 1, 2019:

1. HB 121 — Relating to a defense to prosecution for the offense of trespass by certain persons carrying handguns.  Provides a legal defense for License To Carry (LTC) holders who unknowingly enter establishments that prohibit guns with signage if the LTC holder promptly leaves the property after being asked.
2. HB 302  — Relating to the carrying, storage, or possession of a firearm or firearm ammunition by certain persons on certain residential or commercial property.  Prohibits residential lease agreements from restricting the possession of firearms by residents or their guests.
3. HB 1143  — Relating to the transportation or storage of a handgun or other firearm or ammunition by a handgun license holder in a school parking area.  Updates the Texas Education Code to prevent school districts from regulating the manner in which a licensed person’s handgun, firearm, or ammunition is stored in their vehicle in a school parking area.
4. HB 1177 — Relating to carrying a handgun during a state of disaster.  Prevents citizens from being charged with a crime for carrying a handgun without a License To Carry while evacuating from a declared state or local disaster area, or while returning to that area. Also gives disaster shelters the option to accommodate evacuees with firearms.
5. HB 1387  — Relating to the number of school marshals that may be appointed to serve on a public school campus or at a private school.  Loosens restrictions on how many armed school marshals a school district or the governing body of an open-enrollment charter school may appoint.
6. HB 1791  — Relating to the carrying of handguns by license holders on property owned or leased by a governmental entity.  Updates language in the Texas Government Code related to the carrying of firearms on property owned or leased by a government entity.
7. HB 2363  — Relating to permitting certain foster homes to store firearms and ammunition in the same locked location.  Updates specifications for how foster parents may store their firearms in a foster home.
8. SB 535 — Relating to the carrying of a handgun by a license holder on the premises of certain places of religious worship.  Clarifies the Texas Penal Code to make it clear that places of worship are to be treated the same as other private property when determining whether a license holder may carry on premises.
9. SB 741  — Relating to restrictive covenants regarding firearms or firearm ammunition.  Prohibits a property owners association from prohibiting or restricting the possession, transportation, or storage of a firearm or ammunition. Also prohibits restrictions on the lawful discharge of a firearm.

For more, read: “9 New Gun Laws Now In Effect In Texas; Some In Response To Church And Mass Shootings,” written by Brian New and published by CBSDFW on September 2, 2019.

Texas Gun Charges: Carrying, Buying, or Selling Firearms

While the 2^nd Amendment of the U.S. Constitution acknowledges each citizen’s right to bear arms, both state and federal laws exist that curtail the free use and transport of firearms in Texas.  Usually, arrests are made for guns that are being bought or sold, or just being carried by the person who has been arrested on a state weapons charge.

Under TPC Chapter 46, there are a variety of criminal charges related to either (1) carrying; (2) buying; or (3) selling firearms in the State of Texas.

1.  Unlawful Carry in Texas

As a general rule, a person cannot legally carry a gun or firearm on his person in the State of Texas. Pursuant to TPC 46.02, it is a crime if someone:

(1)  intentionally, knowingly, or recklessly carries on or about his or her person a handgun; and

(2)  is not either: (A)  on the person’s own premises or premises under the person’s control; or (B)  inside of or directly en route to a motor vehicle or watercraft that is owned by the person or under the person’s control.

2.  Unlawful Locations to Carry a Gun

Furthermore, it is a crime in Texas to carry a firearm or gun in specific locations as defined in TPC 46.03:

A person commits an offense if the person intentionally, knowingly, or recklessly possesses or goes with a firearm, location-restricted knife, club, or prohibited weapon listed in Section 46.05(a):

(1)  on the physical premises of a school or educational institution, any grounds or building on which an activity sponsored by a school or educational institution is being conducted, or a passenger transportation vehicle of a school or educational institution, whether the school or educational institution is public or private, unless: (A)  pursuant to written regulations or written authorization of the institution; or (B)  the person possesses or goes with a concealed handgun that the person is licensed to carry under Subchapter H, Chapter 411, Government Code, and no other weapon to which this section applies, on the premises of an institution of higher education or private or independent institution of higher education, on any grounds or building on which an activity sponsored by the institution is being conducted, or in a passenger transportation vehicle of the institution;

(2)  on the premises of a polling place on the day of an election or while early voting is in progress;

(3)  on the premises of any government court or offices utilized by the court, unless pursuant to written regulations or written authorization of the court;

(4)  on the premises of a racetrack;

(5)  in or into a secured area of an airport; or

(6)  within 1,000 feet of premises the location of which is designated by the Texas Department of Criminal Justice as a place of execution under Article 43.19, Code of Criminal Procedure, on a day that a sentence of death is set to be imposed on the designated premises and the person received notice that: (A)  going within 1,000 feet of the premises with a weapon listed under this subsection was prohibited; or (B)  possessing a weapon listed under this subsection within 1,000 feet of the premises was prohibited.

3.  Texas Gun Charges: Disorderly Conduct Involving a Firearm

Furthermore, it is illegal to discharge or display a gun or firearm in certain situations here in Texas.  Pursuant to TPC §42.01, this is called “disorderly conduct,” and involves someone intentionally or knowingly:

(1) displaying a firearm or other deadly weapon in a public place in a manner calculated to alarm; or

(2) discharging a firearm (a) in a public place other than a public road or a sport shooting range, as defined by Section 250.001, Local Government Code or (b) on or across a public road.

4.  Texas Gun Charges:  Trespassing Where Guns Aren’t Welcome

There are also laws that allow property owners to post notices that firearms are not allowed on their property.  Signage like this means that anyone who takes a firearm onto that land or premises (either openly or concealed) is committing the crime of trespass under TPC §§30.06 -.07.

Defenses against Texas Gun Charges

Within the Texas Penal Code, specific statutory defenses are defined for the person arrested on weapons charges in Texas for a gun or firearm.  These include:

1.  Part of the Job: Member of Armed Forces, National Guard, Jailer, Court Officer

Under TPC 46.03(b), it is a defense to prosecution if the person has a firearm while in the actual discharge of his official duties as a member of the armed forces, national guard, or as a guard employed by a penal institution, or an officer of the court.  Likewise, it is a defense if he or she possesses the gun or firearm while traveling to or from work.  Sometimes a security officer is also protected by this defense.

2. Licensed to Carry

Pursuant to Subchapter H, Chapter 411, Government Code, an individual can carry a firearm either concealed or open carry as long as they apply and qualify for a License to Carry (LTC) and are otherwise eligible.  Special laws have also been passed for Campus Carry.

3.  Justification Excluding Criminal Responsibility

On occasions where the charges include not just possession of weapon, but the use of the firearm as deadly force, the defense attorney may find specific statutory defenses based upon the use of the gun or firearm for self-defense, the defense of others, or the defense of home/property.   This can involve either the protection of people or of property as defined in TPC Chapter 9, entitled “Justification Excluding Criminal Responsibility.”

Under TPC 9.01(3), “deadly force” is defined as “force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury.”

Using a firearm or gun in either the (1) protection of persons or (2) the protection of property is sometimes considered “justified” under Texas law even if it involves “deadly force” and someone dies as a result.  See, Texas Penal Code, Chapter 9, Subchapters C, D.

These legal doctrines are more commonly known as the “stand your ground” and “castle doctrine” defenses.  They involve aspects of self-defense, and as the state’s highest criminal court explains:

The self-defense provisions in the Penal Code focus on the actor’s motives and on the level of force used, not on the outcome of that use of force. If the actor reasonably believed that the force was necessary to protect himself against another’s unlawful use of force, and the amount of force actually used was permitted by the circumstances, Sections 9.31 and 9.32 apply, regardless the actual result of the force used. 

— Alonzo v. State, 353 S.W.3d 778, 783 (Tex. Crim. App. 2011).

Facing Weapons Charges and Gun Crimes in Texas

The weapons laws and gun statutes of Texas are complicated.  There are many more detailed regulations on the ownership, purchase, sale, and carrying of firearms than can be covered in this article.

It is very easy for someone to violate serious Texas gun laws and face felony charges without realizing they were doing so – it’s also likely for someone to be accused of violating a Texas illegal weapons law without being guilty of the crime.

Weapons charges can be very serious.  Not only can the individual face significant felony punishments (jail time) but he or she may well be prosecuted for related crimes, such as drug charges.

Having an experienced Texas criminal defense attorney in these matters can make all the difference in the accused’s life.  Early investigation of the prosecution’s case may well result in negotiation to lesser charges or even a dismissal of the matter depending upon the particular circumstances of the case especially the actions of law enforcement in the discovery and collection of the weapon (search and seizure challenges).

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article,” Pre-Arrest Criminal Investigations.”