Carrying A Gun In Public? A Former DA Breaks Down The Law! (2021)

Have you been arrested and charged with unlawfully carrying a weapon in Texas? Maybe the police are alleging you illegal carried a firearm, rifle, or other type of gun? It can be confusing to tell exactly what is legal and what is not when it comes to possessing a gun or other weapon in Texas.

Recent legislation has further blurred the lines, and many have accidentally broken the law because of this confusion. If you have been wrongfully charged for having a firearm, call an experienced and aggressive criminal defense lawyer today.

Can You Open Carry A Loaded Firearm In Texas?

There is a misconception that because Texas is an open carry state, you can buy a gun and carry it whenever and wherever you want without a license. However, that is not the case. There remain restrictions in place that must be considered when you choose to open carry.

Under Texas criminal law, you can openly carry a long-barreled firearm. However, a change in Texas Firearms Law under the Firearm Carry Act of 2021 provides that a person carrying a handgun in public can do so by either concealing the handgun by making sure that no part of the handgun is partially or entirely visible OR by carrying the gun openly in a holster.

Even then, you cannot carry the weapons near any college or university, polling places, courts, airports, bars, professional sporting events, prisons or jails or hospitals or nursing homes. Additionally, you are not permitted to carry a handgun while intoxicated in a public place.

Although the new open-carry law seems liberal, there are other laws that prohibit you from carrying and possessing certain weapons with restrictions on when and where you can carry them.

If you violate the law and are charged with unlawful carrying of a weapon, it can have dire consequences to your life. Depending on the circumstances surrounding the charge, and whether you have a past criminal history, if convicted, you face paying a high fine and spending a long sentence in a county jail or prison.

There are many different weapons charges under the Texas Penal Code with different penalties attached. The penalties are substantially increased if you use a weapon while committing another crime or if you have been previously convicted of a felony offense.

Regardless of whether you are charged with a misdemeanor or felony gun case, you should seek the counsel of an experienced criminal defense lawyer to help fight for your freedom.

Unlawfully Carrying a Weapon

If you have been arrested and charged with unlawfully carrying a weapon in Fort Worth or a surrounding city in Tarrant County, Texas, you need the help of an experienced and aggressive criminal attorney to ensure that you clear your criminal record of these charges. People generally think of a gun or knife when they hear the term “weapon.” However, “weapon” can include a number of items that you might not normally consider.

Under the Texas Penal Code, section 46.01, weapons are defined as:

  • Explosive devices such as grenades, bombs, rockets, etc.
  • Clubs such as nightsticks, tomahawks, maces.
  • Shotguns with barrels less than 18 inches long.
  • Rifles with barrels less than 16 inches long.
  • Rifles and shotguns that have been altered so the entire length is less than 26 inches long.
  • Knives with blades over five and a half inches long including a bowie knife, sword, or spear.
  • Machine guns.
  • Zip guns.
  • Brass knuckles.
  • Firearm silencer.
  • A tire deflation device.

Additionally, under Texas Penal code, Section 46.02, the State of Texas will be required to prove the following elements of the crime of unlawful carrying of a weapon beyond a reasonable doubt:

“A person commits an offense if the person: (1) intentionally, knowingly, or recklessly carries on or about his or her person a handgun; (2) at the time of the offense: is younger than 21 years of age; or has been convicted of a felony crime or committed in the five-year period preceding the date the instant offense was committed; and is not on the person’s own premises or premises under the person’s control; or inside of or directly en route to a motor vehicle or watercraft that is owned by the person or under the person’s control.”

In other words, it is illegal in Texas to carry on you or in your vehicle a “handgun, knife or club” that is in “plain view” if you are not on your own property or a property under your control.

Penalties for Illegal Gun Possession in Texas

Unless you are licensed to carry a handgun, it is illegal for you to knowingly and intentionally carry any weapon when you are not on your own property. The penalty imposed depends on the weapon involved and where you were at the time of the offense, and you need an unlawful firearm possession attorney to help you.

The penalties are increased if the weapon is carried near a school, a place that sells alcohol, a court, racetrack, polling place on election day or secured area of an airport. Even if you have a legal right to carry a weapon, if you sell it or lend it to someone who does not have a legal right to have it or allow a child to have access to a firearm that is not secured, additional penalties will be imposed.

Exceptions are made for possession of antique items. Additionally, you may transport a weapon in your vehicle as long as it is not visible.

Texas Gun Laws

Under Texas law, there are restrictions on your right to own and carry a weapon and where you have a right to possess certain firearms. Texas law provides that in order to carry a concealed handgun in public, you must be licensed to do so by the state of Texas. However, even if you are licensed to carry a weapon or gun in the state of Texas, you are prohibited from carrying a concealed gun or weapon in a county or state correctional facility, a school or a bar.

Additionally, whether you are licensed to carry a gun by the state of Texas or not, you are prohibited by Texas law from displaying a deadly weapon in public in a manner that causes fear or alarm. A violation of this Texas law could result in a charge of disorderly conduct, a Class A Misdemeanor punishable by a penalty of up to 1 year in the Tarrant County jail.

Whether you have been charged with unlawful carrying of a weapon, unlawful possession of a firearm, disorderly conduct, unlawful discharge of a firearm, felon in possession of a firearm/weapon, or deadly conduct, the Hampton Law Firm will carefully investigate and analyze your weapon charge and will fight to protect your freedom and your right to continue to carry a weapon in the state of Texas. Call our criminal defense lawyers in Fort Worth today!

Unlawful Possession of a Gun

Texas law prohibits certain classes of people from possessing guns. You may not possess any gun if:

  • You have any prior felony conviction for which you served prison time and it has been less than five years since your release.
  • You are a state employee with a protective or restraining order in force against you.
  • You were convicted of domestic violence, whether a misdemeanor or felony, and it has been less than five years since you completed your sentence whether the sentence ranged from community service to prison.

Whether you have been charged with a misdemeanor or felony firearm charge, you need the services of an experienced Fort Worth criminal defense attorney who will aggressively fight for your freedom and be sure that all of your constitutional rights are protected.

Defenses To Gun Charges In Texas

If you have been arrested and charged with unlawful carrying of a weapon, your number one priority should be to hire the best criminal defense attorney in Fort Worth or your area of Texas to begin formulating a strategy for your defense to protect your freedom and your clean criminal record. Part of that process requires you to educate yourself on Texas gun laws so that you are ready to partner with your criminal attorney for your defense. Let us examine a few effective legal defenses if you are charged with unlawful carrying of a weapon

Lack of Criminal Intent To Carry The Weapon

The State of Texas must prove beyond a reasonable doubt that you intentionally, knowingly, or recklessly carried on or about your person a gun or other defined weapon. What if you did not know that you had a weapon in your possession? What if the carrying of the weapon was a mistake or accident?

For example: we have represented multiple clients that have been charged with unlawful possession of a firearm in an airport. Under Texas criminal law, possession of a gun in an airport is defined as being a prohibited place, classified as a third-degree felony, punishable by a prison sentence of up to 10 years and up to a $10,000 fine. However, it is a common fact scenario where a client will go through security at the airport and forget that he left his gun in his carry bag that he took with him previously to the gun range. Obviously, the client would have never carried the gun to the airport intentionally or knowingly.

The real question is whether this obvious mistake or accident would be characterized as “reckless” under Texas gun laws? Our argument has always been it is negligence but not recklessness. Remember, “recklessness” under Texas criminal law is defined as “a person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist, or the result will occur.” In this scenario, we argue that our client was not “aware” and did not “consciously disregard” the risk. Frequently, airport gun cases can be presented to a grand jury for a possible no bill of the case, clearing the way for the arrest and criminal charge to be cleared from the client’s criminal record.

You Were On Your Own Premises

What if you were unlawfully carrying a weapon but the premises you were carrying the weapon was a location or property you owned or had control over? In this situation, the prosecutor will be unable to prove the crime of unlawful carrying of a weapon if they cannot prove beyond a reasonable doubt that your possession of the weapon occurred on a premises or property that was NOT yours or in your control.

Call An Experienced Firearm & Gun Crime Defense Attorney

You need someone who keeps up to date on the ever-changing Texas firearms laws. For example, a new law went into effect on January 1, 2016, and additional recent changes to Texas firearms laws took place in September of 2021. It is critical that you work with an experienced and aggressive criminal defense attorney that keeps up with the guns laws in Texas and has a proven track record of helping Tarrant County and North Texas citizens get their unlawful carrying of a weapon charge dismissed.

If you are in the Fort Worth, Arlington, Mansfield, Tarrant County, Parker County, Johnson County, or Denton County area, you should contact the Hampton Law Firm now for a free consultation and to learn about your legal rights and options.

Jeff Hampton has years of experience defending gun charges and will tirelessly work to resolve your case. Additionally, The Hampton Law Firm is a team of six criminal attorneys that have experience working as Tarrant County Prosecutors with over 85 years of criminal law experience and over 550 criminal jury trials in Tarrant County and the courts in North Texas.

Call now for a free case analysis and free consultation at 817-826-9885.

Sources

http://www.txdps.state.tx.us/rsd/chl/legal/newlegislation.htm

http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.46.htm