Unlawfully Carrying a Weapon in Texas
If you are charged with unlawfully carrying a weapon under Texas Penal Code 46.02, it means you possessed either a handgun or a location-restricted knife at an illegal age, illegal location or in a manner prohibited by law.
In Texas, possession of other types of weapons can also be illegal, but a 46.02 violation focuses only on handguns and location-restricted knives. A “handgun” is any firearm that is designed, made, or adapted to be fired with one hand. A “location-restricted knife” is a knife with a blade over five and one-half inches.
Most unlawful carrying a weapon offenses are prosecuted as Class A misdemeanors and arise when an officer discovers a handgun carried on or about the person being arrested or detained for another criminal offense (for instance, the handgun is found in the vehicle you are driving (or on your person) at the time you are arrested for engaging in a DWI, drug possession, assault, family violence offense, etc).
However, unlawfully carrying a weapon is a felony offense if the person possessing the handgun is a convicted felon or prohibited from possessing the handgun by law, by protective order, by court order after an arrest for family violence, or at certain prohibited locations. Unlawfully carrying a weapon is a Class C misdemeanor offense if the person possesses a restricted knife under the age of 18 without direct supervision of a parent or legal guardian.
Lawfully Carrying a Weapon in Texas
Texas is now an open carry state, which means if you are a legal handgun owner, you can carry a handgun in plain view if it is holstered and you are over 21 years old (or if you are not 21 years old, you have a handgun license).
There is no requirement to have a license or permit to carry a handgun if you are a legal handgun owner in Texas.
Texas License to Carry
However, if you are a Texas License to Carry holder, you are required to inform an officer if you have a handgun on you. Interestingly, if you are not a Texas License to Carry holder you are not required to inform the officer, but should consider following the same disclosure protocol as if you were licensed to carry.
If you are considering carrying a handgun on or about your person in Texas, you should take the extra steps to obtain a Texas License to Carry to make sure you understand your rights and the limitations to those rights so that you do not inadvertently trigger criminal liability for carrying the handgun illegally.
Our team at Soyars & Morgan Law helps those accused of various crimes like unlawfully carrying a weapon or even aggravated kidnapping in Texas by providing the best criminal defense in and around San Antonio, Texas.
If you are facing an unlawful carrying a weapon charge, do not hesitate to call us and find out what we can do to help get the case dismissed or resolved in the best way possible for your situation.
Felony Offenses for Unlawfully Carrying a Weapon
A person commits a felony level unlawfully carrying a weapon offense if he intentionally, knowingly or recklessly carries on or about his person a handgun AND is not:
a. On the person’s own premises or premises under 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; and
c. At the time of the offense, was prohibited from possessing a firearm under Texas Penal Code Section 46.04(a), (b) or (c).
Texas Penal Code Section 46.04 prohibits convicted felons, members of street gangs, and individuals subject to protective orders from possessing firearms.
If you are not sure whether you can legally possess a gun, please contact the Texas Department of Public Safety.
Places Weapons Are Prohibited
Even if you are a legal handgun owner, Texas has designated places where even legal handgun owners are prohibited from bringing the handgun and location-restricted knife.
Possession of location-restricted knife at a prohibited place is class C misdemeanor unless the place of possession is a school or educational institution, in which case it becomes a third degree felony.
1 – https://onlinetexasltc.com/do-i-have-to-tell-a-police-officer-in-texas-i-have-a-firearm-in-my-vehicle/
Possessing a handgun in one of the prohibited places as a legal handgun owner we will generally be charged as a 3rd degree felony.
However, it is only a class A misdemeanor if the prohibited place is a sporting event, civil commitment facility, hospital, nursing facility, amusement park or you are licensed to carry and you possess the handgun at an institution of higher education.
Those prohibited places include (with some limited exceptions as set forth under 46.03 of the Texas Penal Code):
Request Judicial Clemency at the End of Probation
Convicted felons can restore their gun rights if they seek judicial clemency at the end of probation. If you are a convicted felon serving probation, it is important to request judicial clemency within 30 days of being discharged from probation.
Judicial clemency releases the defendant from all penalties and disabilities resulting from the convicted offense with 2 limited exceptions: (1) If you are ever subsequently convicted again of any crime, the judicially dismissed conviction shall be made known to the trial judge at that subsequent trial, or (2) if you are applying for a childcare license. There are also may be situations in which you need to file a motion to early terminate your probation, which we can also assist with.
If you are on felony probation or were discharged within the past 30 days and are interested in applying for judicial clemency, call our offices today so we can help you file the appropriate paperwork to request judicial clemency and restore your rights.
- Schools and institutions of higher education,
- Polling places,
- Courts and government offices,
- Racetracks and amusement parks,
- Hospitals, mental hospitals, nursing facilities,
- Correctional facilities or civil commitment facilities,
- Premises that derive 51% or more of their sales from alcohol,
- Premises of a high school, collegiate, or professional sporting event.
It is a defense to prosecution of possessing the handgun at these prohibited places if accused is traveling to or from the person’s place of assignment or in the actual discharge of duties as:
- A member of the armed forces or national guard;
- A guard employed by a penal institution;
- A security officer licensed by the Texas Private Security Board if the person is wearing a distinctive uniform and the weapon is in plain view or in accordance with Texas Penal Code §46.03(d)(4).
It is also a defense if the person checked all firearms as baggage before entering the secured area at the airport or was authorized by a federal agency or airport operator to possess a firearm in a secured area.
What do I do if I am arrested for unlawfully carrying a weapon?
If you have been arrested or charged with unlawfully carrying a weapon, call Soyars & Morgan Law and let us help you.
We have over 35 years combined legal experience and a very aggressive and well-trained team of trial attorneys ready to help you with your situation. The important thing is that you call before you make any decisions that would affect your rights and freedom.