Unlawful Carrying of a Weapon – Attorney Jon Robinson

UNLAWFUL CARRYING OF A WEAPON DEFINED

Under Texas law, someone unlawfully carries a weapon if they:

“Intentionally, knowingly, or recklessly carries on or about his or her person a handgun,”
Carry a handgun in a vehicle or watercraft they own or control if they are engaged in criminal activity,
Are prohibited by law from possessing a firearm, or
Are a member of a criminal street gang as defined by Texas law.

Weapons prohibited by this law include clubs carried in a vehicle that you own or is under your control and knives with blades more than 5.5 inches long if you are under 18. See Tex. Penal Code § 46.02 (2019).

Generally, if you don’t have a felony conviction, you can carry a weapon:

On your own premises
On premises under your control
In or on the way to a motor vehicle you own
In or on the way to a motor vehicle under your control

Your “premises” includes things like:

Real property,
A travel, truck, or camper trailer used as living quarters permanently or temporarily,
A motorhome used as permanent or temporary living quarters,
A horse trailer with living quarters,
A motor vehicle designed for and used as temporary living quarters,
A boat, motorboat, personal watercraft, or vessel capable of or being used for transportation on the water

If you are carrying a weapon in your car, it can’t be in plain view unless you have a license to carry.

But it is also illegal to carry a weapon if you are committing a crime, aside from a Class C traffic offense. This law applies even if you are somewhere where it would otherwise be legal for you to carry that weapon and if you have a license to carry. For example, say you have your handgun in your car in the morning before work, and then you head to the bar after work for a few drinks. On the way home, if the police stop and arrest you for a suspected DWI, they can also charge you with UCW because the DWI is a crime more serious than a Class C misdemeanor.

LICENSE TO CARRY IN TEXAS

To open carry a weapon in Texas, you must receive a license to carry (LTC). In the past, it wasn’t legal to open carry a handgun. But as of 2016, you can open carry a handgun in a hip or shoulder holster with a license to carry. Some people may also refer to a “concealed handgun license” or CHL. This license is now the same as a “license to carry” in Texas. This license applies only to handguns; you don’t need a license to open carry a long gun in Texas.

LOCATIONS WHERE YOU CAN’T CARRY A WEAPON

There are some locations in Texas where you can’t carry a weapon, including:

Polling locations,
Schools, school buses, and school activities,
A court or the offices used by a court,
In the secure area of an airport,
Within 1,000 feet of a state execution,
A racetrack,
An institution of higher learning that doesn’t allow the carrying of handguns,
A prison,
At some government meetings,
A church,
A hospital or nursing home without written permission,
The premises of a civil commitment facility,
An amusement park, or
While intoxicated.

See Tex. Penal Code §§ 46.03, 46.035 (2017). Moreover, you can’t openly carry a weapon on a college campus. You must store it in a holster, backpack, purse, or some other container.

PEOPLE EXEMPT FROM THE UCW STATUTE

Some people are exempt from Texas’s unlawful carry statute in some situations, including:

Law enforcement
Handgun license holders
Court officials
Some military members
Security officers
Animal control officers in some situations
Security guards at some schools may carry a nightstick or club
Alcohol beverage permit holders
People who are traveling
Hunters and fishermen
Historical reenactors

However, even those licensed to carry a weapon in Texas cannot do so in certain prohibited locations like schools, school buses, school activities, polling places during elections or early voting, court buildings and offices, and racetracks. Texas law also prohibits license holders from carrying a gun into sporting events, restaurants, and bars where prominent English and Spanish signs prohibit them.

PENALTIES FOR A UCW CONVICTION

Unlawfully carrying a firearm or club is a Class A misdemeanor, punishable by up to one year in jail and up to a $4,000 fine. Unlawfully carrying a knife of more than 5.5 inches if you are under 18 is a Class C misdemeanor, punishable by a fine of up to $500. If you unlawfully carry a weapon on premises licensed to sell alcoholic beverages, the police can charge you with a third-degree felony. This felony is punishable by two to ten years in prison and up to a $10,000 fine.

You can also lose your ability to obtain a license to carry if convicted of UCW or another crime.

After a conviction for a Class C “disorderly conduct” charge, you can’t obtain a license to carry for five years.
After a Class B or Class A misdemeanor conviction, you can’t obtain a license to carry for five years.
After any felony conviction, you can’t obtain a license to carry for an indefinite time.

Aside from losing your ability to obtain an LTC in Texas, a criminal conviction for UCW can result in:

Losing custody of your children: Texas courts will consider the parents’ criminal history in determining the best interests of a child in a child custody dispute.
Losing a professional license: If you hold a professional license like a medical, nursing, teaching, or pilot’s license, you can lose your license. If you apply for a professional license, the licensing board may deny it if you have a criminal record.
Losing a security clearance: If you apply for a security clearance or a renewal for your job, you could be denied based on a UCW conviction.
Difficulty in obtaining a mortgage: With a criminal record, you can find it difficult to obtain loans like mortgages or car loans.
Difficulty renting an apartment or home: Most landlords conduct criminal background checks on prospective renters.
Losing federal aid or school admissions: If you are a student, you could lose your federal aid eligibility and find it difficult to get into graduate school or college.
Difficulty finding a job: Many employers perform criminal background checks on all prospective hires. Some are required to do so by law, like the military, law enforcement, and many employers in finance.

HOW WE DEFEND AGAINST UNLAWFUL CARRYING CHARGES

With any weapons charge, it’s important to remember that you are innocent until proven guilty. There are ways to defend against your UCW charge, including:

You weren’t “intentionally, knowingly, or recklessly” carrying the weapon.

The UCW statute requires some intent or knowledge. If, for example, someone packed a weapon in a container you didn’t realize was in your car, you wouldn’t have the necessary intent for the UCW charge. Or, if your spouse placed a handgun in your purse or backpack without telling you, you would again lack the necessary intent.

You were on your own property or premises.

If you were on your own premises, or premises you control, such as your home, a remote dear lease, or a distant portion of your property, you aren’t guilty of a UCW charge.

There was no underlying criminal offense.

An underlying criminal offense usually happens when the police arrest you for DWI, a drug offense, or some other crime, and the UCW charge is a secondary offense. If you weren’t guilty of an underlying criminal offense, then in many cases, you aren’t guilty of the UCW charge either.

There was no significant crime that law enforcement should care to enforce.

If an underlying crime that led to your arrest for UCW was minor, Attorney Jon Robinson may be able to convince the prosecutor that they should dismiss the charge. For example, if you were unknowingly driving on a suspended license and the police pulled you over for a traffic infraction with your gun in the car, the police could also charge you for driving on a suspended license and UCW. In a situation like this, Attorney Jon Robinson might be able to convince the prosecutor that you shouldn’t also face a UCW charge for something so minor.

PROTECT YOURSELF AGAINST A UCW CHARGE

A good way to protect yourself against an inadvertent charge for UCW is to obtain a license to carry if you can. To obtain a license to carry (LTC) in Texas, you must first be eligible for an LTC. You must:

Be a legal resident of Texas, or you need to apply for a non-resident LTC,
Be 21 years old, although there are exceptions for some in the military,
Have no felony convictions,
Have no pending disorderly conduct charges,
Have no pending felony charges,
Have no convictions for disorderly conduct, Class A misdemeanors, or Class B misdemeanors in the last five years,
Not have any outstanding warrants for anything other than a Class C misdemeanor,
Able to exercise sound judgment concerning the proper usage and storage of a handgun,
Not be delinquent with child support payments,
Not be delinquent in paying your taxes,
Not be subject to any protective orders,
Not have an adjudication as delinquent in the last ten years,
Be fully qualified to purchase a handgun under federal and state law, and
Not lie on your application.

Tex. Gov. Code § 411.172 (2016). The law considers anyone with two or more Class B misdemeanor or greater convictions in ten years involving the use of alcohol or a controlled substance “chemically dependent” and ineligible for a license to carry.

Once you confirm you are eligible:

Complete an application and apply to the Department of Public Safety. As part of your application, you’ll need to provide five years of employment data and five consecutive years of your resident information.
Get fingerprinted. You’ll need to schedule an appointment for this online when you complete your LTC application on the DPS website.
Take a Texas LTC class. The class takes four to six hours, including the written exam and range time.
Submit your completion certificate and the required paperwork to DPS.

Ensure you understand where you can carry a weapon and places that forbid weapons, even if you have a license to carry.