The state of Texas allows its citizens the right to carry firearms freely and mostly boundlessly. Yet sometimes, you may find yourself facing criminal action for exercising your rights. It can be a confusing and scary experience to deal with these charges of carrying a weapon unlawfully because there are extremely intricate laws bifurcating the right and the crime.
We understand that it can be tough to figure out what to do next. Therefore, we created this easy guide to explain the complexities of the law in simple language, so you can learn about the penalties and the procedure to fight an unlawfully carrying a weapon charge in Texas.
What is Unlawful Carry of a Weapon (UCW)?
Unlawfully carrying a weapon in Texas is defined under the Texas Penal Code Section 46.02. It prohibits everyone under the age of 21 and everyone who has been convicted of a felony in the last five years from knowingly, intentionally, or recklessly carrying a handgun anywhere outside of the premises, a motor vehicle, or watercraft under their control.
Everyone else, including anyone who has a gun license, can carry a concealed handgun with them in a motor vehicle or watercraft under their possession as long as:
- The gun is not in plain view (or is in a holster);
- The person is not engaged in any criminal activity other than minor Class C misdemeanors of a law or ordinance regulating traffic or boating, like new Texas boating laws 2021; or
- The person is not prohibited by law to carry a concealed weapon.
Texas Penal Code 46.02 also criminalizes carrying and displaying a handgun in plain view in a public place, unless it is carried in a holster. The key factor here is that as long as the gun is not visible (or is in a holster), you are protected by your right. The law also makes it a criminal act to carry a gun outside a property, motor vehicle, or watercraft under your control while you are in a state of intoxication.
Unlawful carrying of a weapon is considered a class A misdemeanor in most cases, but it can sometimes be elevated to a felony or downgraded to a class C misdemeanor depending upon the circumstances or the type of weapon found in your possession.
Texas Carry Laws
The state of Texas recognizes the second amendment right of its citizens to carry a firearm, and the carry laws are pretty tame as compared to most other nations in the world. But despite the recent Permitless Carry Law that allows almost everyone to carry a gun without a legal license, you can still get yourself in a lot of trouble if you do not follow the laws and are found in illegal possession of a firearm.
The Texas Penal Code has four statutes under Section 46 that classify what qualifies as unlawfully carrying a weapon in Texas. These laws list down the places, situations, and types of weapons that can convert a completely innocent act of exercising your right into criminal activity.
If you have been charged with a violation of any of these statutes, you should reach out to Austin Criminal Defense Attorney immediately. Taking the matter too lightly can land you in jail and you may stand to lose a lot of money in fines. What are some of these circumstances that can make you an offender? Let’s take a look.
Places Weapons are Prohibited – Texas Penal Code 46.03
Unlawful carry Texas is generally considered a class A misdemeanor and is not a 1st degree felony or 2nd degree felony. However, your unlawful carry charge will get converted to a third-degree felony if you intentionally, knowingly, or recklessly possess or go with a firearm:
- 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, unless the institute allows the carry or you have the license to carry a firearm.
- on the premises of a polling place on the day of an election or while early voting is in progress;
- on the premises of any government court or offices utilized by the court;
- on the premises of a motor/racetrack;
- in or into a secured area of an airport;
- on the premises of a business that has a license issued under the Alcoholic Beverage Code and derives 51 percent or more of its income from the sale or service of alcoholic beverages for on-premises consumption;
- on the premises of a correctional facility;
- on the premises of a mental hospital;
- in the room or rooms where an open meeting of a governmental entity is held.
There are a few special exceptions that will apply to you in case you are a license holder. Your unlawful carry charges will remain a class A misdemeanor if you carry a gun to:
- the premises of an institution of higher education or private or independent institution of higher education and display it in plain view to another person even if it is in a holster.
- the campus of a private or independent institution of higher education that has established provisions prohibiting license holders from carrying handguns.
- any portion of premises located on the campus of an institution of higher education in this state on which it is prohibited by rules, regulations, or other provisions to carry a concealed handgun.
Unlawful Possession of Firearm – Texas Penal Code 46.04
Texas Penal Code Section 46.04 lists unlawful possession of weapon laws specifically applicable to people with a prior felony conviction, members of a criminal street gang, and people who were previously convicted of assault.
If you have a felony conviction on your record, you are not allowed to possess a firearm before the completion of 5 years from the date of your release from direct supervision under community supervision, parole, or mandatory supervision, whichever is later. Once this period is over, you are only allowed to keep the firearm at your own house. Violating this will lead to a third-degree felony charge against you.
If you are a member of a criminal street gang, you are not allowed to carry a handgun with you on a motor vehicle or a watercraft. And if you were previously convicted of assault, you cannot possess a firearm before the completion of 5 years from the later of the date of your release from confinement or the date of your release from community supervision. The violation of these laws remains a class A misdemeanor.
Prohibited Weapons – Texas Penal Code 46.05
Knowingly, intentionally or recklessly possessing, manufacturing, transporting, repairing, or selling an explosive weapon, a machine gun, or a short-barrel firearm is considered a third-degree felony in Texas. The only exception is the weapons registered in the National Firearms Registration and Transfer Record.
Here are some other weapons which can lead you to the same fate:
- armor-piercing ammunition;
- a chemical dispensing device;
- a zip gun;
- an improvised explosive device.
Knowingly, intentionally or recklessly possessing, manufacturing, transporting, repairing, or selling a tire deflation device is a state jail felony in Texas.
Penalties for an Unlawful Carrying Weapons Conviction in Texas
Unlawful carrying of a weapon Texas charge is a class A misdemeanor, which is punishable by jail of up to 1 year and a fine of up to $4000. In certain cases, as mentioned above, the conviction for unlawful carry can be categorized as a third-degree felony. A third-degree felony can lead to imprisonment for up to 10 years and a fine of up to $10,000.
Carrying a weapon like a location-restricted knife can lead to a charge of class C misdemeanor which is punishable by a fine of up to $500. (further reading: first degree felony and second degree felony)
Frequently Asked Questions
Can I Expunge My Unlawful Carry Charge in Texas?
Yes, the recent amendment allows basically everyone to carry a weapon without the requirement of a license. If you were acquitted in the trial, convicted but pardoned, convicted of carrying before permitless carry was allowed, or you were released and the charge no longer exists, you can get your unlawful carry charge expunged from your records.
Will a DWI Conviction Affect My Right to Carry in Texas?
The short answer is, yes, having a DWI conviction, generally, a Class A or Class B misdemeanor will make it unlawful for you to carry a weapon. After your conviction, your gun license will be revoked. But you’ll be free to apply for a new one or carry without one after 5 years from the end of your sentence. Your driver’s license may also be suspended up to 2 years, barring your ability to operate a motor vehicle, watercraft, or any similarly motor powered vehicles.
How Do I Fight a UCW Charge in Texas?
If you ever find yourself with a UCW charge, the very first thing you should do is reach out to Austin criminal lawyer James Gill. He has years of experience getting his clients the best outcomes in similar cases. If not dealt with properly, a UCW can lead to years spent in jail and a life with several restrictions after that.
Make the right head start and find out the best option for your case by scheduling a consultation at 512-448-4560. The Law Offices of James Gill, PLLC serves all of Austin, Westlake, Kyle, Buda, San Marcos, and the surrounding TX communities.