Austin Unlawful Carrying of a Weapon Attorney Jason Trumpler
Unlawful Carrying and Gun Laws Article
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Disclaimer: Please do not contact us with questions about whether the way you are carrying a weapon is legal or illegal. Please do not contact us and ask us for advice on how to carry weapons legally or restore your firearm rights. The State of Texas offers many courses that will teach you the answers to these to questions. Only contact us if you have been charged with a crime or are currently under investigation. We are not a 24 hour resource for weapon related questions. If you have questions about whether you are carrying legally or illegally, the answer is probably illegally because if you have questions you are not handling the weapon responsibly.
With new legislation in place about Open Carry, there has been a lot of public confusion about what these new laws mean to gun owners and CHL holders. In this post, criminal defense attorney Jason Trumpler, will explain the basics of unlawful carrying, who is eligible to have a concealed handgun license/open carry and where guns are allowed to be carried. We have also included “3 Tips to Remember If You Are Pulled Over with a Firearm” so you can be safe and have your rights protected.
What are the basics?
The State of Texas has lenient gun laws and recently they have expanded those laws to allow some individuals the right to open carry. The old laws in place allow the purchase of a firearm without a waiting period and without any form of state registration. However, if someone purchases a gun without a CHL license they will only be allowed to possess the firearm in their home, on their property that functions as housing (like a motor home) or in their car (hidden from sight). The State of Texas Penal Code 46.02 describes exactly what it means to be unlawfully carrying a weapon.
Below is the code explained:
Sec. 46.02. UNLAWFUL CARRYING WEAPONS.
Section A: This part of the code states that you cannot knowingly carry a weapon if you are not on your “premises” (real property or a recreational vehicle that is being used as living quarters, regardless of whether that use is temporary or permanent; travel trailer, camping trailer, truck camper, motor home, and horse trailer with living quarters).
And that you cannot carry a weapon unless you are directly en route (on your way) to a vehicle or water craft that you own.
(a-1) This section states that an offense is committed if you carry a weapon on your person, in your vehicle or watercraft (any boat, motorboat, vessel, or personal watercraft, other than a seaplane on water, used or capable of being used for transportation on water) that is in “plain view” unless you have a CHL license, which would require the weapon to be in a holster or shoulder belt.
This means you cannot have a weapon out in the open (it must be hidden from plain sight) in your vehicle or boat unless you are licensed to carry.
It is considered unlawfully carrying a firearm if the person carrying is:
Committing a crime (other than a Misdemeanor Class C, like a minor traffic violation)
Prohibited from possessing a firearm (in the case of convicted felons)
And/or is a known member of a street gang
An offense under this section of the code is a Class A misdemeanor - This includes unlawful carrying of a weapon without a license outside of premises that you own.
An offense under this section becomes a 3rd degree felony if the offense is committed on any premises licensed or issued a permit by this state (TABC) for the sale of alcoholic beverages.
A CHL is a concealed handgun license and allows individuals the right to carry their guns concealed on their person. Recently, the new Open Carry law allows for these licensed individuals the ability to openly carry their handguns. Previously, the open carry of handguns was not allowed in the State of Texas; only rifles/shotguns were allowed to be publicly carried in a holster and in a non-threatening way. With the new Open Carry Laws, those with a Concealed Handgun License can now openly carry their handgun concealed or secured in an outside holster that protects the gun from being discharged unintentionally.
There are still some places that have restrictions against firearm possession whether you are licensed or not. These restricted places are usually public spaces or places where children are present:
On School property or within 300 feet
A place where an official school function is taking place (this includes sporting events)
Businesses that get 51% of their profits or more from Alcohol Sales
Hospitals or Nursing Homes
A church or place of religious affiliation/worship
At a polling place where voting is in progress
Any official government offices
On the premises of Racetracks (ex: horse and greyhound tracks)
Within 1000 feet of a Texas Department of Criminal Justice place of execution
At an Airport inside “Secured Locations”
If you are intoxicated, you are not allowed to carry your gun into any location
Who is qualified to purchase a firearm?
To purchase a gun in Texas, you must be a resident and have a state issued ID card or Driver’s License. Convicted Felons are allowed to purchase a gun 5 years after their sentence completion date (release from prison or parole). Felons are only allowed to possess firearms in their home, they are not allowed to carry one on their person or in their vehicle.
To Apply for a CHL:
You must be a resident of the State of Texas for at least 6 months.
You cannot have a felony conviction on your record.
You must wait 5 years after the conviction of a Class A or B Misdemeanor before you are eligible.
You must be up to date on all child support payments.
Cannot be a fugitive from justice for a felony or misdemeanor.
Have no outstanding debts to the State of Texas.
Cannot be under the influence of drugs.
Cannot have any pleas of Not Guilty for Reason of Insanity.
Not have a psychiatric condition that requires continuous treatment.
Must be able to comprehend gun laws and regulations.
Texas allows individuals to own NFA restricted weapons including machine guns, automatic weapons, short barreled shotguns and silencers but they must be REGISTERED through the NFA registry.
Some things to keep in mind if you are carrying a firearm or own one:
Firearms are allowed to protect property that you own (like a house or car) but cannot be discharged recklessly. Only in times of self-defense are firearms allowed to be discharged and fired only when they are not endangering other third parties (like children or the general public). “Defense” includes when an individual is trying to enter your property or vehicle unlawfully and with force - and/or the individuals are attempting to commit a crime (kidnapping, murder, assault or robbery) on your property.
Firearms in households must also be put up and away to prevent easy access to children. To have a loaded gun within reach of a child or to have a child harmed from an accidental discharge can be punishable by a Misdemeanor A, B, or C dependent on the damage inflicted.
You must also have your CHL on you and be ready to present it if asked by a police officer or judge. Private businesses do not have to allow open carry and usually have proper signage that states a CHL holder is not allowed to Open Carry. Even if a sign isn’t present and you have a CHL, if a proprietor asks you to leave their place of business or conceal your firearm, you must do so.
Effective August 1, 2016 under Senate Bill 11, which allows institutions of higher education to establish its own rules and regulations about Open/Concealed Carry, The University of Texas will have new policies about their gun laws that will go into effect. These new policies will allow some individuals with Concealed Handgun Licenses the right to carry on university premises. Check this website for a full description of their policies
In light of recent events, it is important to know what to do if you are pulled over and have a concealed weapon on you or in your vehicle.
Follow these 3 tips to keep both yourself and the officer on duty safe from harm or miscommunication.
1. Roll down your window, turn on an interior light (if it’s dark) then return your hands to the steering wheel.
2. Tell the officer that you have a concealed carry permit and have one on your person. Avoid the use of the word “GUN” – if you have a weapon in your car, tell the officer where it is located ex: “I am a legal carrier and have concealed weapon in the glovebox”.
3. Before reaching for your wallet to retrieve your ID or CHL, tell the officer where the firearm is located ex: “I have it located on my right hip, my wallet with my ID and license is in my left pocket”. That way the officer knows that if you are reaching toward your left side, the firearm is located on the right. If the weapon is located in the glovebox with your insurance or license, it is best to let the officer know that and ask them what they would like you to do next.
In Texas, the law states you MUST tell the officer that you have a firearm or concealed weapon when they ask you for identification.
This post is simply a brief overview, if you have questions about gun laws in Texas be sure to check the Texas Department of Safety website or contact us via email or call us at 512-457-5200.
If you are a CHL holder or legally possess a firearm, be sure to save our number in your phone (512-457-5200) in case of an emergency or in the unfortunate event that you are pulled over with your firearm. You have legal rights to own and operate a firearm in the State of Texas and The Law Offices of Jason Trumpler will make sure that your rights are protected.
Mail copy along with a check for $135 to:
Drivers Improvement & Compliance Bureau
Texas Department of Public Safety
PO Box 15999
Austin, TX 78761-5999