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A Brief Review of Basic Texas Weapons Laws. Update 7/26.
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Last Updated :: 7/27/2011 12:04:50 AM |
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A Brief Review of Basic Texas
Weapons Laws © Txinvestigator 2011 This is a revised version that includes
relevant sections of the Legislative changes from the 82nd (2011) session of
the Texas Legislature. Section 1 The weapons laws in Texas
are a constant source of confusion and bewilderment for many people. The construction of the penal code does not
make for a comfortable, simple read. In
this review I will attempt to put in simple layman's terms the basic weapon
laws in the Great State of Texas. I will
also attempt to do so in a manner that is direct and follows a logical path. Plain English will be used, but the text of many of the laws will
also be presented for those who like to dissect and obtain a more thorough
understanding. Actual laws are printed in bold, and are from the penal code
unless otherwise noted. Definitions will be covered as we get to them, rather
than listed in one location. Texas
law generally proscribes the carry of handguns, illegal knives and clubs on or
about your person. (penal code 46.02)
"On your person” means just that.
The courts have ruled that "about your person” means any area within
your immediate access. This includes the
passenger compartments of motor vehicles. Basically, if you can lunge and reach
it, it is about your person. We all know what handguns are. Illegal knives are those with a blade over five and one-half inches, a hand
instrument designed to cut or stab another by being thrown, a dagger, including
but not limited to a dirk, stiletto, and poniard, a bowie knife, a sword, and a
spear. (penal code 46.01(6)) Clubs are defined as an instrument that is specially designed,
made, or adapted for the purpose of inflicting serious bodily injury or death
by striking a person with the instrument, and includes but is not limited to
the following; blackjack, nightstick, mace and tomahawk. (penal code 46.01(1)) A baseball bat is not, by definition, a club.
Cut the end off, fill it with lead and tape the handle and you have "adapted”
the bat as a club. Nightsticks, ASPs,
batons, PR-24s, etc., are all clubs Penal Code section 46.02 also states that it is not an offense if the handgun, illegal knife of club is carried
on your own premises or premises under your control, or if you are inside of or
directly en route from your residence to a motor vehicle or watercraft
(watercraft are not legal until Sept.1, 2011) that you own or are in control
of. That section goes on to state 4 restrictions for handgun carry in a motor vehicle or watercraft. The handgun must not be in
plain view, you must not be a member of a criminal street gang, you cannot be
prohibited by law from possessing a firearm, and you cannot be in the
commission of a crime at the time. Traffic offenses or boating offenses that
are class C misdemeanors do not count, nor do city ordinance violations. These restrictions only apply to the carry of
a handgun. This section requires the
handgun be concealed. In this part of the code the term "premises” is
defined as including "real property”. It
is not limited to building and portions of buildings as in a later section of
the code. "Your premises” covers all of
your property. If you live in a home,
that includes the yard and driveway. If
you live in an apartment, it does not cover common areas that are not within
your control. The phrase
"premises under your control” includes your business location, if you control
it. Notice that those working at gun ranges and many gun stores carry handguns
on their persons. They may not own the store, but they control it while
working. The store manager for a large
retail store would control the premises, but I doubt the Clinique girl working
the cosmetics counter has the premises "under her control”. This section covering your premises and
premises under your control is silent on the condition the weapon is carried;
open or concealed, meaning a person can carry either way. For now, let's consider that what we have discussed so far is the
basic law regarding the carry of handguns, illegal knives and clubs. In the next section, we will discuss from
where a CHL holder is given the authority to carry, as well as other times the
carry of weapons is not unlawful. Violating section 46.02 is a class A misdemeanor, meaning a person
convicted can be sentenced to up to a year in jail, a fine up to $4,000, or
both, unless it is where alcohol is sold, then it is a third degree felony,
meaning 2 to 10 years in prison and up to a $10,000 fine. In summary, if you are a law abiding citizen then car carry is
lawful as long as the handgun remains concealed, and you can carry on your own
premises or premises under your control. Sec. 46.02. UNLAWFUL CARRYING WEAPONS. (a) A
person commits an offense if the person intentionally, knowingly, or recklessly
carries on or about his or her person a handgun, illegal knife, or club if the
person is not: (1) on the person's own premises or premises under the
person's control; or (2) inside of or directly en route to a motor vehicle
that is owned by the person or under the person's control. (a-1) A person commits an offense if the person
intentionally, knowingly, or recklessly carries on or about his or her person a
handgun in a motor vehicle that is owned by the person or under the person's
control at any time in which: (1) the handgun is in plain view; or (2) the person is: (A) engaged in criminal activity, other than a Class C
misdemeanor that is a violation of a law or ordinance regulating traffic; (B) prohibited by law from possessing a firearm; or (C) a member of a criminal street gang, as defined by
Section 71.01. (a-2) For purposes of this section, "premises"
includes real property and a recreational vehicle that is being used as living
quarters, regardless of whether that use is temporary or permanent. In this
subsection, "recreational vehicle" means a motor vehicle primarily designed
as temporary living quarters or a vehicle that contains temporary living
quarters and is designed to be towed by a motor vehicle. The term includes a
travel trailer, camping trailer, truck camper, motor home, and horse trailer
with living quarters. (a-3) For purposes of this
section, "watercraft" means any boat, motorboat, vessel, or personal watercraft,
other than a seaplane on water, used or capable of being used for
transportation on water. (not in effect until 9-1-11) (b) Except as provided by Subsection (c), an offense
under this section is a Class A misdemeanor. (c) An offense under this section is a felony of the
third degree if the offense is committed on any premises licensed or issued a
permit by this state for the sale of alcoholic beverages. Section 2 If Texas
law generally only allows the carry of handguns, illegal knives and clubs under
those conditions, how do police officers, CHL holders, and others lawfully
carry outside of those restrictions?
Section 46.15 of the penal code is titled Non-Applicability. It tells us
when section 46.02 (unlawful carrying weapons; the law described in section 1)
does not apply to a person. Section (a)
covers police officers, military, etc.
Section (b)(6) tells us that section 46.02 does not apply to a person
who is carrying a valid CHL and a concealed handgun of the same action type as listed on
his CHL. Action type refers to semi-auto
and non-semi auto. A person licensed to
carry a semi-auto can carry either, and a person licensed to carry a non-semi
auto can only carry a revolver or single shot handgun. That means a person who has a CHL is exempt from the 46.02
law. Of course, you must have your
license with you and be carrying the proper category of handgun. There has been
much discussion if this section allows CHL holders to carry an illegal knife and
club, as it appears to exempt the person from all of 46.02. From a strict reading of the law it appears
that is correct. This section of the code requires the handgun be
concealed. However, there are other
times where there is no such requirement.
For example, 46.15 (b)(1)exempts a person who is in the actual
discharge of official duties as a member of the armed forces or state military
forces, or as a guard employed by a penal institution. The code is silent on open or concealed. In addition there are other times when 46.02
does not apply; such as to a person who is traveling. Traveling is not defined. The old "crossing three counties” and other
speculated definitions just are not definitions. Personally, I would not rely on this section,
as what YOU consider traveling and what a police officer or judge might
consider could be vastly different. Under 46.15(b)(4), section 46.02 does not apply to a person who is
engaging in lawful hunting, fishing, or other sporting activity on the
immediate premises where the activity is conducted, or is en route between the
premises and the actor's residence, motor vehicle or watercraft (watercraft is
not lawful until Sept., 2011) if the weapon is a type commonly used in the
activity. Again, the law is silent on
open or concealed carry. Shooting at a
shooting range would be an example of the use of this section. Carrying an illegal knife while hunting or
fishing is another example There are other exceptions that can be found in 46.15(b) An armed
guard can carry, but his weapons MUST be in plain view. As you can see, Texas does not completely restrict the open
carry of handguns. (b) Section 46.02 does not apply to a person who: (1) is in the actual discharge of official duties as a
member of the armed forces or state military forces as defined by Section
431.001, Government Code, or as a guard employed by a penal institution;9 (2) is on the person's own premises or premises under
the person's control unless the person is an employee or agent of the owner of
the premises and the person's primary responsibility is to act in the capacity
of a security guard to protect persons or property, in which event the person
must comply with Subdivision (5); (3) is traveling; (4) is engaging in lawful hunting, fishing, or other
sporting activity on the immediate premises where the activity is conducted, or
or is en route between the premises and the actor's residence, or motor
vehicle, or watercraft ( watercraft not effective until 9-1-11), if the weapon
is a type commonly used in the activity; (5) holds a security officer commission issued by the
Texas Private Security Board, if the person: (A) is engaged in the performance of the person's duties
as an officer commissioned under Chapter 1702, Occupations Code, or is
traveling to or from the person's place of assignment; and (B) is either: (i) wearing the officer's uniform and carrying the officer's weapon in plain view; or (ii) acting as a personal protection officer and
carrying the person's security officer commission and personal protection
officer authorization; (6) is carrying a concealed handgun and a valid license
issued under Subchapter H, Chapter 411, Government Code, to carry a concealed
handgun of the same category as the handgun the person is carrying; or (7) holds an alcoholic beverage permit or license or is
an employee of a holder of an alcoholic beverage permit or license if the
person is supervising the operation of the permitted or licensed premises. (c) The provision of Section 46.02 prohibiting the
carrying of a club does not apply to a non commissioned security guard at an
institution of higher education who carries a nightstick or similar club, and
who has undergone 15 hours of training in the proper use of the club, including
at least seven hours of training in the use of the club for nonviolent
restraint. For the purposes of this subsection, "nonviolent
restraint" means the use of reasonable force, not intended and not likely
to inflict bodily injury. (d) The provisions of Section 46.02 prohibiting the
carrying of a firearm or carrying of a club do not apply to a public security
officer employed by the adjutant general under Section 431.029, Government
Code, in performance of official duties or while traveling to or from a place
of duty. (e) The provisions of Section 46.02 prohibiting the
carrying of an illegal knife do not apply to an individual carrying a bowie
knife or a sword used in a historical demonstration or in a ceremony in which
the knife or sword is significant to the performance of the ceremony. Section 3 In this section we will look at further
restrictions on CHL holders and others, beyond those basic restrictions in
section 46.02. Notice 46.02 did not
mention rifles or shotguns, or even bombs.
Section 46.03 is titled "Places Weapons Prohibited”, and refers to firearms,
illegal knives, clubs, or prohibited weapons listed in Section 46.05(a). We will cover the weapons that are unlawful
to even possess in 46.05 in a later section.
Notice that 46.03 includes ALL firearms, not just handguns. Why are CHL holders not exempt from these restrictions in
46.03? The section of the penal code
that allows CHL holders to carry handguns ONLY exempts them from section 46.02
of the code. CHL holders, or any of
those exceptions listed in 46.15(b) are not exempt from section 46.03. (as a
note, police officers and many others are
exempt from 46.03) This law makes it unlawful to possess or go with one of those
weapons to many locations. For purposes
of this section, the penal code defines premises as "a building or a portion
of a building. The term does not include any public or private driveway,
street, sidewalk or walkway, parking lot, parking garage, or other parking
area.” The prohibited locations are; (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 pursuant to written regulations or
written authorization 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. Racetracks are defined as where there is Para mutual betting such as dog and horse tracks. It does not refer to auto or motorcycle
races, etc. Sec. 46.01. DEFINITIONS. In this
chapter: (15) "Racetrack" has the meaning assigned that
term by the Texas Racing Act (Article 179e, Vernon's Texas
Civil Statutes). Art. 179e. TEXAS
RACING ACT. Sec. 1.03. In this Act: (25) "Racetrack" means a facility that is licensed under
this Act for the conduct of pari-mutuel wagering on greyhound racing or horse
racing. Additional places restricted by this section are (5) in or into a secured area of an airport; Penal Code 46.03 (c) In this section: (2) "Secured area" means an area of an airport
terminal building to which access is controlled by the inspection of persons
and property under federal law. Other restricted places under 46.03. (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. There are times when there is an exception to some of
these. For example, it is a defense if
you checked your weapon in your luggage while flying, or if you are a security
guard working at a racetrack, etc. It is a felony to carry a listed weapon in the places set
out in this section. Sec. 46.03. PLACES WEAPONS
PROHIBITED. (a) A person commits an offense if the person
intentionally, knowingly, or recklessly possesses or goes with a firearm,
illegal 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 pursuant to written
regulations or written authorization 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. (b) It is a defense to prosecution under Subsections
(a)(1)-(4) that the actor possessed a firearm while in the actual discharge of
his official duties as a member of the armed forces or national guard or a
guard employed by a penal institution, or an officer of the court. (c) In this section: (1) "Premises" has the meaning assigned by
Section 46.035. (2) "Secured area" means an area of an airport
terminal building to which access is controlled by the inspection of persons
and property under federal law. (d) It is a defense to prosecution under Subsection
(a)(5) that the actor possessed a firearm or club while traveling to or from
the actor's place of assignment or in the actual discharge of duties as: (1) a member of the armed forces or national guard; (2) a guard employed by a penal institution; or (3) a security officer commissioned by the Texas Board of Private
Investigators and Private Security Agencies if: (A) the actor is wearing a distinctive uniform; and (B) the firearm or club is in plain view; or (4) Deleted by Acts 1995, 74th Leg., ch. 318, Sec. 17,
eff. Sept. 1, 1995. (5) a security officer who holds a personal protection
authorization under the Private Investigators and Private Security Agencies Act
(Article 4413(29bb), Vernon's Texas Civil Statutes). (e) It is a defense to prosecution under Subsection
(a)(5) that the actor checked all firearms as baggage in accordance with
federal or state law or regulations before entering a secured area. (f) It is not a defense to prosecution under this
section that the actor possessed a handgun and was licensed to carry a
concealed handgun under Subchapter H, Chapter 411, Government Code. (g) An offense under this section is a third degree
felony. (h) It is a defense to prosecution under Subsection
(a)(4) that the actor possessed a firearm or club while traveling to or from
the actor's place of assignment or in the actual discharge of duties as a
security officer commissioned by the Texas Board of Private Investigators and
Private Security Agencies, if: (1) the actor is wearing a distinctive uniform; and (2) the firearm or club is in plain view. (i) It is an exception to the application of Subsection
(a)(6) that the actor possessed a firearm or club: (1) while in a vehicle being driven on a public road; or (2) at the actor's residence or place of employment. Section 4 Section 46.035 sets out additional places a CHL
holder cannot carry a handgun. The
definition of premises is the same here as in section 46.03; building and
portions of buildings. Places off limits under Penal Code 46.035 are; (1) on the premises of a business that
has a permit or license issued under the Alcoholic Beverage Code, if the
business derives 51 percent or more of its income from the sale or service of
alcoholic beverages for on-premises consumption, The key to this is for ON premise consumption. These locations are required to post a red
sign with a large 51 on it that lets you know the location is off limits to CHL
holders who are carrying a handgun. Package stores that sell for off premise
consumption are not off limits.They
will display a sign telling that the unlicensed possession of a weapon there is
a felony. (2) on the premises where a high school,
collegiate, or professional sporting event or interscholastic event is taking
place, unless the license holder is a participant in the event and a handgun is
used in the event; A professional sporting event is one in which the
participants are paid for their participation. This includes your typical
professional sports, NFL, NHL, NBA, MLB, etc, as well as NASCAR and some rodeo
events, etc. (3) on the premises of a correctional facility; The following locations are only off limits if the person
is given notice that complies with section 30.06 of the penal code. 30.06 will be covered in a later section. (4) on the premises of a hospital, or on the
premises of a nursing home, unless the license holder has written authorization
of the hospital or nursing home administration, as appropriate; (5) in an amusement park; or (6) on the premises of a church, synagogue, or
other established place of religious worship. (c) at any meeting of a governmental entity. This section also makes it a violation to intentionally
fail to conceal the handgun. Intent is defined in the penal code, and
would not include an accidental or inadvertent flash or print of the handgun. It is also a violation to carry while
intoxicated. Some get confused by a
question on the CHL test that is a true or false question; "There is no legal
limit of intoxication for a CHL Holder carrying a handgun after drinking alcohol.” The answer is TRUE. There is no legal limit. There are two definitions of intoxication in Texas; (A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or (B) having an alcohol concentration of 0.08 or more. The .08% is a presumed level of intoxication, not a "limit". A person below .08% can be intoxicated using definition (A). Since you will not be offered a blood alcohol test for a carrying while intoxicated charge, definition (A) will be used. The media's misuse of the term "legal limit" is responsible for the confusion with this question. The 08% is not a limit at all. The "legal limit" term is used to describe the BAC of a person involved in a drunken driving offense, but the term is incorrect. A person below .08% can be convicted of DWI. In fact, a person with a ZERO BAC can be convicted. (think drugs). To prove intoxication the court can establish it under (A), a subjective and more difficult to prove definition, or show that the person had a BAC of .08% or greater. .08% IS intoxicated with no subjectivity. It is not unlawful to drink alcohol while carrying. The DPS FAQ states so. It is a class A misdemeanor to violate this section unless
at a 51% location or a correctional facility, then it is a 3rd
degree felony. A conviction for a violation of this section can result in
a revocation of a person's CHL. Sec. 46.035. UNLAWFUL CARRYING OF HANDGUN BY
LICENSE HOLDER. (a) A license holder commits an offense
if the license holder carries a handgun on or about the license holder's person
under the authority of Subchapter H, Chapter 411, Government Code, and
intentionally fails to conceal the handgun. (b) A license holder commits an offense if the license
holder intentionally, knowingly, or recklessly carries a handgun under the
authority of Subchapter H, Chapter 411, Government Code, regardless of whether
the handgun is concealed, on or about the license holder's person: (1) on the premises of a business that has a permit or
license issued under Chapter 25, 28, 32, 69, or 74, Alcoholic Beverage Code, if
the business derives 51 percent or more of its income from the sale or service
of alcoholic beverages for on-premises consumption, as determined by the Texas
Alcoholic Beverage Commission under Section 104.06, Alcoholic Beverage Code; (2) on the premises where a high school, collegiate, or
professional sporting event or interscholastic event is taking place, unless
the license holder is a participant in the event and a handgun is used in the
event; (3) on the premises of a correctional facility; (4) on the premises of a hospital licensed under Chapter
241, Health and Safety Code, or on the premises of a nursing home licensed
under Chapter 242, Health and Safety Code, unless the license holder has
written authorization of the hospital or nursing home administration, as
appropriate; (5) in an amusement park; or (6) on the premises of a church, synagogue, or other
established place of religious worship. (c) A license holder commits an offense if the license
holder intentionally, knowingly, or recklessly carries a handgun under the
authority of Subchapter H, Chapter 411, Government Code, regardless of whether
the handgun is concealed, at any meeting of a governmental entity. (d) A license holder commits an offense if, while
intoxicated, the license holder carries a handgun under the authority of
Subchapter H, Chapter 411, Government Code, regardless of whether the handgun
is concealed. (e) A license holder who is licensed as a security
officer under Chapter 1702, Occupations Code, and employed as a security
officer commits an offense if, while in the course and scope of the security
officer's employment, the security officer violates a provision of Subchapter
H, Chapter 411, Government Code. (f) In this section: (1) "Amusement park" means a permanent indoor
or outdoor facility or park where amusement rides are available for use by the
public that is located in a county with a population of more than one million,
encompasses at least 75 acres in surface area, is enclosed with access only
through controlled entries, is open for operation more than 120 days in each
calendar year, and has security guards on the premises at all times. The term
does not include any public or private driveway, street, sidewalk or walkway,
parking lot, parking garage, or other parking area. (2) "License holder" means a person licensed
to carry a handgun under Subchapter H, Chapter 411, Government Code. (3) "Premises" means a building or a portion
of a building. The term does not include any public or private driveway,
street, sidewalk or walkway, parking lot, parking garage, or other parking
area. (g) An offense under Subsection (a), (b), (c), (d), or
(e) is a Class A misdemeanor, unless the offense is committed under Subsection
(b)(1) or (b)(3), in which event the offense is a felony of the third degree. (h) It is a defense to prosecution under Subsection (a)
that the actor, at the time of the commission of the offense, displayed the
handgun under circumstances in which the actor would have been justified in the
use of deadly force under Chapter 9. Sec. 6.03. DEFINITIONS OF CULPABLE MENTAL
STATES. (a) A person acts intentionally, or with intent,
with respect to the nature of his conduct or to a result of his conduct when it
is his conscious objective or desire to engage in the conduct or cause the
result. Texas
Government Code Sec. 411.186. REVOCATION. (a) A
license may be revoked under this section if the license holder: (4) is convicted of an offense
under Section 46.035, Penal Code Section 5 This section covers weapons that people are
generally prohibited from even possessing.
This is section 46.05 of the penal code. It prohibits the possession,
manufacture, sale, repair or transportation of an explosive weapon, a
machine gun, a short-barrel firearm, a firearm silencer, a switchblade knife,
knuckles, armor-piercing ammunition, a chemical dispensing device or a zip gun. Those are unlawful to have even in your house. There is a defense to prosecution for a
silencer, machine gun and short barreled firearm if the possession is pursuant
to the National Firearms Act, as amended.
This act is a federal law that requires registration of those
items. A tax is paid and a background
check is conducted by the federal government.
There are additional requirements that are beyond the scope of this
writing. There is also a defense to prosecution that a person's dealing
with a switchblade was as an antique or curio.
A switchblade is any knife that has a blade that folds, closes, or
retracts into the handle or sheath, and that opens automatically by pressure
applied to a button or other device located on the handle or opens or releases
a blade from the handle or sheath by the force of gravity or by the application
of centrifugal force. Assisted opening
knives that open by a knob on the blade are not switchblades. Armor piercing ammo applies to ammunition that is designed
primarily for the purpose of penetrating metal or body armor and to be used
principally in pistols and revolvers. One question that always comes up when it is observed that a
”chemical dispensing device” is prohibited, is about pepper spray, also called
OC. The definition in section 46.01 of
the penal code of a chemical dispensing device is; "a device, other
than a small chemical dispenser sold commercially for personal protection,
that is designed, made, or adapted for the purpose of dispensing a substance
capable of causing an adverse psychological or physiological effect on a human
being.” The pepper spray that you buy at the local gun store or range does
not meet the definition of a chemical dispensing device. It is not unlawful to carry. Sec. 46.05. PROHIBITED
WEAPONS. (a) A person commits an offense if he
intentionally or knowingly possesses, manufactures, transports, repairs, or
sells: (1) an explosive weapon; (2) a machine gun; (3) a short-barrel firearm; (4) a firearm silencer; (5) a switchblade knife; (6) knuckles; (7) armor-piercing ammunition; (8) a chemical dispensing device; or (9) a zip gun. (b) It is a defense to prosecution under this section
that the actor's conduct was incidental to the performance of official duty by
the armed forces or national guard, a governmental law enforcement agency, or a
correctional facility. (c) It is a defense to prosecution under this section
that the actor's possession was pursuant to registration pursuant to the
National Firearms Act, as amended. (d) It is an affirmative defense to prosecution under
this section that the actor's conduct: (1) was incidental to dealing with a switchblade knife,
springblade knife, or short-barrel firearm solely as an antique or curio; or (2) was incidental to dealing with armor-piercing
ammunition solely for the purpose of making the ammunition available to an
organization, agency, or institution listed in Subsection (b). (e) An offense under this section is a felony of the
third degree unless it is committed under Subsection (a)(5) or (a)(6), in which
event, it is a Class A misdemeanor. (f) It is a defense to prosecution under this section for
the possession of a chemical dispensing device that the actor is a security
officer and has received training on the use of the chemical dispensing device
by a training program that is: (1) provided by the Commission on Law Enforcement
Officer Standards and Education; or (2) approved for the purposes described by this
subsection by the Texas Private Security Board of the Department of Public
Safety. (g) In Subsection (f), "security officer"
means a commissioned security officer as defined by Section 1702.002,
Occupations Code, or a non commissioned security officer registered under
Section 1702.221, Occupations Code. Section 6 There are other sections of the code one needs to be aware of. Section 42.01 (a)(8), Disorderly Conduct,
makes it an offense to display a firearm or other deadly weapon in a manner
"calculated to alarm”. Although there is no general prohibition in Texas restricting the carry of rifles and
shotguns, section 42.01 (a)(8) should be considered. And remember, section 46.03 proscribes the
carry of ALL firearms (and other weapons) in those places listed. Sec. 42.01. DISORDERLY
CONDUCT. (a) A person commits an offense if he intentionally
or knowingly: (8) displays a firearm or other deadly weapon in a
public place in a manner calculated to alarm; Section 7 Section 30.06 of the penal code is called,
"Criminal Trespass by a License Holder to Carry a Concealed Handgun. Prior to 30.06, any sign or notice on private
property that advised that handgun or weapon carry was not allowed was
sufficient to charge a person with section 30.05 of the penal code; Criminal
Trespass. Our legislature added a
section to 30.05 when they created 30.06.
It reads that you cannot be charged with criminal trespass under 30.05
if the basis on which entry on the property or land or in the building
was forbidden is that entry with a handgun was forbidden, and the person was
carrying a concealed handgun and a license. Section 30.06 sets out what is required to make a case from
criminal trespass by a CHL holder. I
prefer to study one section at a time; Sec. 30.06. TRESPASS BY HOLDER OF LICENSE TO CARRY
CONCEALED HANDGUN. (a) A license holder commits an
offense if the license holder: (1) carries a handgun under the authority of Subchapter
H, Chapter 411, Government Code, on property of another without effective
consent; and (2) received notice that: (A) entry on the property by a license holder with a
concealed handgun was forbidden; or (B) remaining on the property with a concealed handgun
was forbidden and failed to depart. It is really pretty simple at this point. If you do not have the consent of the person
who controls the property and you carry a handgun on the property of another
AND you had received notice that carry there was not allowed, or if you refuse
to leave after being given notice that you are forbidden to stay with the
handgun, you commit a violation. So
there are two parts to this. One is
being given notice BEFORE you enter, and the other is being given notice AFTER
you enter. Also important is that 30.06 uses the term "property” and not
premises. A private property owner can
prohibit carry on his entire property, including parking lots, etc. Now we need to know what constitutes notice. The penal code tells us; (b) For purposes of this section, a person receives
notice if the owner of the property or someone with apparent authority to act
for the owner provides notice to the person by oral or written communication. Oral or written communication, either prior to our entry or after
we enter, constitutes notice. The code
is silent on the "oral” communication.
Therefore, ANY oral notice suffuices.
There is no requirement for oral notification to meet any specific
language or other requirement. A preacher saying to the congregation that he
wants no guns in his church is enough, if you were there to hear it. Written communication is defined as; (A) a card or other document on
which is written language identical to the following: "Pursuant to Section
30.06, Penal Code (trespass by holder of license to carry a concealed handgun),
a person licensed under Subchapter H, Chapter 411, Government Code (concealed
handgun law), may not enter this property with a concealed handgun; or (B) a sign posted on the property that: (i) includes the language described by Paragraph (A) in
both English and Spanish; (ii) appears in contrasting colors with block letters at
least one inch in height; and (iii) is displayed in a conspicuous manner clearly
visible to the public. If you are handed a card or other written document, like a policy
manual, that has the above language then you have been given notice. It is important to note that the card or
other document only has to have the language in section (A). It does not have to be in Spanish, the
letters do not have to be an inch tall, etc. Signs that are posted must meet the requirements in (B). I have heard of people actually measuring the
height of letters on signs, and ignoring them if the letters are only ¾ inch
tall. I would not want to risk my
freedom on such a thing. Others claim
that the white sign on glass is not contrasting colors. I disagree, and again I am certainly not
willing to risk my freedom on such an issue. Still others have some belief that a sign must be at every
entrance to be enforceable. I certainly
don't see that in the law, do you? In fact, the sign does not have to be at ANY
entrance. Remember, if you are given
notice AFTER you enter you must leave.
So if there was no 30.06 sign at the entrance to that local taco place,
but there is one at the register where you order then you must leave with the
handgun. Employees and non-employees are not treated differently under this
statute. An employee can face
disciplinary action for carrying against a policy that does not meet the 30.06
requirements, but no criminal action would be possible. Section 30.06 also tells you; (e) It is an exception to the application of this
section that the property on which the license holder carries a handgun is
owned or leased by a governmental entity and is not a premises or other place
on which the license holder is prohibited from carrying the handgun under
Section 46.03 or 46.035 For example; the Plano ISD has some public school parking lots
posted with 30.06 notice. Under (e)
above that posting is meaningless. Violation of 30.06 is a class A misdemeanor. The 2011 Legislature added a protection for employees to possess
handguns, firearms or ammunition in their vehicles on their employer’s parking
lots. If you have a CHL your employer is prohibited under the Texas Labor Code
from prohibiting you from having a firearm or ammunition in parking lots, garages
and other parking areas. Some have said the law seems unclear to them if this
law covers ONLY CHL holders, or if it also covers anyone who possesses under
46.02 (the car carry law). I read it as
it covers those under 46.02 and a CHL, but unless there is case law I suggest
you read for yourself or consult with an attorney. This bill is SB 321, 82nd
regular session. There are exceptions to this law for employers. If possession of a
firearm is prohibited by state or federal law, if the vehicle is owned or
leased by the employer, open enrollment charter schools, school districts,
private schools and if possession of a firearm is prohibited by a valid,
unexpired oil, gas or other mineral lease on the property, are all locations
and instances where employers CAN still prohibit carry. Additionally, property owned or leased by a chemical manufacturer
or oil and gas refiner with an air authorization under Chapter 382, Health and
Safety Code, and on which the primary business conducted is the manufacture,
use, storage, or transportation of hazardous, combustible, or explosive
materials, except in regard to an employee who holds a license to carry a
concealed handgun under Subchapter H, Chapter 411, Government Code, and who
stores a firearm or ammunition the employee is authorized by law to possess in
a locked, privately owned motor vehicle in a parking lot, parking garage, or
other parking area the employer provides for employees that is outside of a
secured and restricted area: (i) that contains the
physical plant; (ii) that is not open to
the public; and (iii) the ingress into
which is constantly monitored by security personnel, then they CAN prohibit
carry. Section 8 I have attempted to outline and explain the basic weapons laws in Texas. Readers should keep in mind that this is not
an all inclusive list, nor am I an attorney.
I based these writings on my experiences and training in many years as a
Peace Officer, and instructor and doing the research for years for internet
message boards, CHL and Private Security Classes, talking with other
instructors, enthusiasts, and lawyers. It is the responsibility of each individual to read, know and obey
the laws of Texas,
and this writing should not be substituted for your own common sense or
required compliance with the law. It is my desire that it helped you
understand, what can be confusing Texas
laws, a little better. This does not cover federal buildings or property, as they are not
covered under Texas
laws. |
