Can I Carry a Firearm if I’m Traveling Through Texas?

October 7, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Yes, but there are do’s and don’ts.

The Texas statute for unlawful carry of a handgun is under Penal Code 46.02.  That provision makes it an offense to “intentionally, knowingly, or recklessly” carry on or about your person a handgun.

The statute is worded in a very confusing manner — but the law specifically allows possession of a firearm on “the person’s own premises or premises under the person’s control.”  Tex.Pen.C. 46.02(2)(A).

And to answer the original question – the law also allows possession “inside of or directly en route to a motor vehicle or watercraft that is owned by the person or under the person’s control.”  Tex.Pen.C. 46.02(2)(B).

Translation – you can have it in the car.

Limitations to Carrying a Handgun Through Texas

The handgun cannot be in plain view unless you are licensed to carry a handgun in Texas. Tex.Pen.C. 46.02(a-1)(1).

While the law allows you to have it in your vehicle – the law doesn’t allow you to carry it outside the vehicle.  You probably can’t bring it to the park benches where you and your family are eating lunch as an example – and you can’t bring it inside places like gas stations or other businesses which, in all likelihood, prohibit weapons.

You can’t be engaged in criminal activity.  Though this one seems obvious, we do see a number of cases where there is a DWI along with an unlawful carry case (or UCW as they are typically called here).  Speeding and other traffic offenses are omitted, though.

And it goes without saying you can’t otherwise be prohibited from carrying for whatever reason.

This Law Has A History of Changes

When I was a prosecutor – the law made it illegal to have a handgun “on or about” your person.  The law then provided “traveling” was a defense to UCW but that was confusing too.  That just meant you’d be arrested and you could argue to a judge or jury you were “traveling.”

That law was not only confusing but also – as you might predict – otherwise responsible handgun owners would get arrested on routine stops and then they’d have to try and convince a jury the traveling defense applied when they were on their way to the Home Depot instead of Arkansas.

The new statute, while confusing, helps responsible owners avoid that fear and headache.  It basically says “if it’s in your car, then we agree you’re traveling.”

But it’s not a general license to carry any and all places.  That requires special permitting under Subchapter H, Chapter 411 of the Texas Government Code.

*Jeremy Rosenthal is Board Certified in Criminal Law and is designated as a Texas Super Lawyer by Thomson Reuters.

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Posted by niftybrady

The 5 Most Common Questions I get as a Criminal Defense Lawyer: #1 “Am I Going to Jail?”

March 12, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Most people vastly over-estimate their jail possibilities.  I spend a good deal of time explaining why things are nearly as bad they may seem.

Our minds tend to link together what I call “the chain of terribles.”  That is we take one terrible result, and infer another logical awful result, and then another and another and another.  But this is almost never realistic.

Let me give you an example — at the time I write this blog, the Coronavirus is exploding across the world.  The NBA just suspended their regular season.  Part of my mind wants to suggest the world economy will crash (the dow is down 20% from a month ago), my law practice will go down the tubes with the economy, there will be widespread disease and then famine, the NBA will never play again, and the survivors of the virus will have to barricade themselves from zombies in makeshift houses.

That is the chain of terribles.  But I’m guessing if you read this even 6 months from now, you’ll see how ridiculous my conclusions were.

The same thing happens when people consider jail.  They’ve typically already been arrested and have bonded out — and they want to know “will it happen again?”  A perfectly understandable and valid question.  Those fears are often fueled by lawyers and their webpages trying to scare you into hiring them.

Jail exposure is obviously on a case-by-case basis which includes tons of variables such as the nature of the charge, mitigating factors, what county is prosecuting the charge, criminal history, the specific prosecutor, judge, etcetera, etcetera, etc…

Understand a handful of factors which, in general, reduce inmate population.

  • Running a jail is money-losing proposition.  It is a hotel where no one pays.  Most counties don’t want to feed you and house you if they don’t have to.
  • Most judges and prosectors believe in rehabilitation.  Very few will stop someone from getting help they need to manage substance issues which frequently contribute.
  • There is a much better understanding of anxiety, depression, and other maladies which can contribute to someone’s predicament.
  • Finally — it’s your lawyers job to effectively tell your story — and everyone typically has a good one.

Bottom line: If you’re like everyone else – then you’ve probably exaggerated your own jail chances.

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas.  He is Board Certified by the Texas Board of Legal Specialization in Criminal law.  Nothing in this article is intended to be legal advice.

Comments Off on The 5 Most Common Questions I get as a Criminal Defense Lawyer: #1 “Am I Going to Jail?” | Assault, Collateral Consequences of a Criminal Record, DWI, Jail Release, pre trial diversion, Search & Seizure, sex cases, Theft, Weapons | Permalink
Posted by niftybrady

Which Weapons are Illegal in Texas?

August 19, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Often times people in possession of certain weapons don’t learn that possessing those weapons is an offense until they’re in handcuffs.  Depending on the weapon in question, the offense can be a Class A Misdemeanor or even a Felony.

Texas Code of Criminal Procedure 46.05 controls prohibited weapons, and that statute says in relevant part,

“(a)  A person commits an offense if he intentionally or knowingly possesses, manufactures, transports, repairs, or sells:

“(1)  an explosive weapon; (3rd degree felony)

“(2)  a machine gun; (3rd degree felony)

“(3)  a short-barrel firearm; (3rd degree felony)

“(4)  a firearm silencer; (3rd degree felony)

“(5)  a switchblade knife; (misdemeanor) (Repealed effective 9/1/2013).

“(6)  knuckles; (misdemeanor)

“(7)  armor-piercing ammunition; (3rd degree felony)

“(8)  a chemical dispensing device; or (3rd degree felony)

“(9)  a zip gun. (3rd degree felony)

“(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).

There are more defenses to prohibited weapon possession than meets the eye.  First is that there will always likely be a search and seizure issue of how law enforcement attained the weapon in question.  If the search was illegal, then the exclusionary rule may keep the evidence suppressed requiring an acquittal.

Additionally, the State must prove “possession” which, under Texas Penal Code 1.07(39) means, “actual care, custody, control or management.”  In other words, law enforcement must do more than show the defendant was near the weapon or could have possessed the weapon.  They must show he ACTUALLY possessed it.  Finally, there are affirmative defenses such as if the weapon is a curio (generally antique weapons made before 1899).

The fact these offenses alone are mostly felonies clearly indicates that if you are accused of possession of a prohibited weapon that you should get a lawyer involved.  Even if the weapon charge is for knuckles or a switchblade, understand that Federal laws and Texas laws are constantly evolving and a conviction may make lawful gun ownership in the future more difficult if not impossible.

One final point is the Federal Government also highly regulates firearms.  Just because a particular weapon may be legal under Texas law still doesn’t make it illegal under Federal law.  You can read here about those.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article should be considered legal advice.  For specific legal advice about any case you should consult a lawyer directly.

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Posted by Jeremy Rosenthal, Esq.

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