Weapons charge defense in Texas

Common weapons charges

• Unlawful carrying of a weapon (Penal Code 46.02)
• Unlawful possession of a firearm by a felon (Penal Code 46.04), a third-degree felony
• Carrying in places where weapons are prohibited
• Possession while subject to a protective order or after a family violence conviction

Issues we look at

• Whether the stop and search were lawful
• Whether you actually possessed the weapon
• Whether a prior conviction really bars possession, and for how long

Who can carry a handgun without a license in Texas?

Since September 1, 2021, a person 21 or older who is not prohibited from possessing a firearm can generally carry a handgun in public without a license, as long as it is in a holster if carried openly. Unlawful carrying under Penal Code 46.02 still applies to people who are prohibited, such as people with certain convictions or who are subject to protective orders, and to carrying while committing other offenses.

When is unlawful carrying a felony?

Unlawful carrying is generally a Class A misdemeanor. It is a third-degree felony if committed on premises licensed or permitted to sell alcoholic beverages (Penal Code 46.02(c)).

Where are weapons prohibited?

• Places listed in Penal Code 46.03, including schools and school events, polling places on election days, courts and court offices, racetracks and the secured areas of airports
• Places where license holders and others are restricted under 46.035, such as businesses that earn 51% or more of revenue from on-premises alcohol sales, and high school, college and professional sporting events
• Private property where proper notice has been given

When can a person with a felony conviction possess a firearm?

A person convicted of a felony may not possess a firearm until the fifth anniversary of release from confinement or supervision, and after that only at the premises where the person lives (Penal Code 46.04(a)). Federal law has its own, broader prohibition. Possession in violation of 46.04(a) is a third-degree felony.

Which related charges come up?

• Deadly conduct, including discharging a firearm at or in the direction of people or a habitation (Penal Code 22.05)
• Possession while subject to a protective order or after a family violence conviction (46.04(b), (c))
• Aggravated assault involving a firearm (Penal Code 22.02)

How are weapons cases defended?

• Whether the stop and search were lawful
• Whether you knowingly possessed the weapon, especially in shared cars or homes
• Whether a prior conviction or order actually prohibits possession, and for how long
• Whether a place was legally a prohibited place and whether notice was given

Where are these cases heard outside Dallas?

Misdemeanor cases are heard in the county-level criminal courts, and felonies in the district courts, of the county where the offense is alleged to have happened. We handle cases from our only office, in downtown Dallas, in 12 North Texas counties. Each county page lists the courthouse, the prosecutor's office and the jail: Dallas, Tarrant, Collin, Denton, Rockwall, Kaufman, Ellis, Johnson, Parker, Wise, Hunt, Navarro.

What should I do now?

• Do not try to retrieve a seized firearm without talking to a lawyer.
• Gather any license, purchase records and proof of where you live.
• Find out whether any prior conviction or order applies to you, and its dates.
• Do not discuss the case on social media.

Where are these cases heard in Dallas County?

People arrested in Dallas County are usually booked at the Lew Sterrett Justice Center, where a magistrate sets bond within 48 hours. Misdemeanors are heard in the Dallas County Criminal Courts and felonies in the Criminal District Courts, both at the Frank Crowley Courts Building, 133 N. Riverfront Blvd. The Dallas County District Attorney's Office prosecutes both. For eligible adult first-time felony cases, the DA's general pretrial diversion program may be an option if the referral is made before indictment or within 120 days after it.

Where is carrying a weapon prohibited?

Penal Code 46.03 prohibits carrying firearms and certain other weapons in places such as the premises of a school or educational institution, a polling place on election day, government court offices, a racetrack and the secured area of an airport, with limited exceptions. Being allowed to carry without a license does not change these rules.

Can a protective order or bond condition make gun possession a crime?

Yes. A person subject to a family violence protective order, a magistrate's order for emergency protection under Code of Criminal Procedure 17.292 or certain other orders commits an offense by possessing a firearm after receiving notice of the order and before it expires (Penal Code 46.04(c)), with a narrow exception for certain on-duty government employees. Violating an order or a family violence bond condition by possessing a firearm can also be charged under Penal Code 25.07(a)(4). These charges often come up in family violence cases, so the order and the date you received notice are important.

What is the level of an unlawful carrying charge?

Unlawful carrying of a weapon under Penal Code 46.02 is generally a Class A misdemeanor, up to 1 year in jail and a fine up to $4,000 (46.02(b), Penal Code 12.21), and certain situations listed in the statute are punished more severely.

Can an old unlawful carrying conviction be cleared?

Possibly. Code of Criminal Procedure 55A.005 allows expunction of a conviction for unlawfully carrying a handgun under Penal Code 46.02(a), as that law read before September 1, 2021, for an offense committed before that date. That change followed the 2021 law that allows many adults 21 and older to carry a handgun without a license.

Free consultation

The first consultation is free. It is with a Director of Client Engagement, not an attorney. Clients who hire us work with an attorney. Call (214) 239-2013 or, in Spanish, (214) 880-6293. Phones and chat are answered 24/7, with AI covering when no staff is free.