Since September 2021, most adults 21 and older in Texas can carry a handgun without a license. That hasn’t ended unlawful carrying cases in Houston. It changed them. Most of these arrests now come from a traffic stop where the officer finds a gun and then finds a reason it wasn’t legal: the gun was loose on the seat instead of holstered, the driver was arrested for something else, the driver was accused of DWI, or the driver had a record that made carrying illegal. Unlawful carrying is usually a Class A misdemeanor, with up to a year in jail and a $4,000 fine, but it becomes a felony when someone who’s legally barred from having a gun carries one away from home and outside their own vehicle (Penal Code § 46.02(a-7)).
Call (713) 664-4000. If your gun was seized, don’t sign anything giving it up. Getting it back is part of what we handle, and the deadlines to ask for it are short, about 60 days.
When carrying a handgun is still a crime
| Situation | Law | Level |
|---|---|---|
| Gun in plain view in your car, unless you’re 21 or older (or licensed) and it’s in a holster | § 46.02(a-1)(1) | Class A misdemeanor |
| Gun in your car while you’re committing any offense other than a Class C traffic violation, like DWI or possession | § 46.02(a-1)(2)(A) | Class A misdemeanor |
| Carrying while intoxicated, unless you’re on your own property, on someone’s private property with their OK, or in (or heading straight to) your own car or one you have permission to be in | § 46.02(a-6) | Class A misdemeanor |
| Openly displaying a handgun in public when it isn’t holstered | § 46.02(a-5) | Class A misdemeanor |
| Carrying away from your home or car while under 21 without a license, or after a conviction for certain assault, deadly conduct, terroristic threat or disorderly conduct offenses committed in the last five years | § 46.02(a) | Class A misdemeanor |
| Gun in your car when you’re legally barred from having one | § 46.02(a-1)(2)(B) | Class A misdemeanor (a felon usually faces the § 46.04 felony too) |
| Carrying away from your home or your own vehicle while barred by a felony conviction | § 46.02(a-7), (e)(1) | Second-degree felony with a 5-year minimum |
| Carrying away from your home or your own vehicle while barred by a family violence assault conviction or a protective order | § 46.02(a-7), (e)(2) | Third-degree felony |
The under-21 part is on shaky ground. A federal court ruled in 2022 that Texas can’t bar law-abiding 18- to 20-year-olds from carrying because of their age alone, Texas dropped its appeal, and people that age can now get a license to carry. If you’re under 21 and charged with carrying, that ruling is one of the first things we raise. And if you have a license to carry and the gun was concealed or holstered, most of § 46.02 doesn’t apply to you at all (§ 46.15(b)(6)).
Separate from carrying, a person with a felony conviction commits unlawful possession of a firearm by having one within five years of finishing the sentence or supervision, and after that anywhere other than home (§ 46.04(a)), a third-degree felony. Federal law has no home exception and no five-year window, and federal prosecutors in Houston bring those cases too (18 U.S.C. § 922(g)(1)). People under certain protective orders, including the emergency order a magistrate signs after a family violence arrest, can’t have a firearm once they’ve been notified of the order. And someone convicted of Class A assault against a family or household member can’t have one until five years after getting out of jail or off probation (§ 46.04(b), (c)). Those are Class A misdemeanors under state law, but federal law can be harsher, and a family violence conviction against a spouse, a former spouse, a co-parent or someone you lived with as a partner can mean a lifetime federal ban (18 U.S.C. § 922(g)(9)). And carrying into certain places, like a school, a polling place, a courthouse or a bar that gets most of its income from alcohol, is its own offense (§ 46.03). Our page on discharge of a firearm covers shooting-related charges.
How we defend unlawful carrying charges
The stop and the search. Most of these cases start with a traffic stop, and the gun is only found because of a search. If the stop wasn’t legal, or the officer searched the car without a warrant or a valid exception, the gun can be suppressed. With permitless carry, a gun in the car isn’t evidence of a crime by itself, and officers who treat it that way make mistakes.
The other offense. When the carrying charge rides on another arrest, like DWI or drug possession, beating the underlying charge usually takes the carrying charge down with it. The State doesn’t need a conviction on that other charge, but it does have to prove it beyond a reasonable doubt in the carrying case, so a weak DWI or a weak possession case makes a weak carrying case. The law requires the person to be “engaged in criminal activity” at the time, not merely arrested for something.
Knowledge and possession. In a shared car, the State has to prove you knew the gun was there and that it was close enough for you to reach. Who owns it isn’t the question, and just being in the car with it isn’t enough. A gun in the glove box of a borrowed car is a common fight.
The prior record. In the felony versions, the prior conviction is an element. We check whether it really counts as a conviction (a completed deferred adjudication, for example, usually doesn’t) and, in the family violence and misdemeanor cases, whether the five-year window already closed.
Old convictions and your record
If you were convicted of unlawfully carrying a handgun under the old § 46.02(a) for something that happened before September 1, 2021, the law now entitles you to an expunction (Code of Criminal Procedure Art. 55A.005). It doesn’t reach the old in-car charges, and it doesn’t cover deferred adjudication, so we’ll pull the judgment and tell you exactly where you stand. A current charge that ends in dismissal can usually be expunged too, sometimes right away and sometimes after a waiting period, as long as you weren’t put on deferred adjudication. See our expunctions page.
Results
A Harris County client stopped for speeding had his car searched after officers said they smelled marijuana. They found two pounds of marijuana. They also found a Daniel Defense AR-15 and a Kimber Custom II .45 pistol. The case was dismissed and his guns were returned to him. A Harris County client found passed out in his car in a closed park, with a gun in plain view on the passenger seat, had his unlawful carrying charge dismissed. Another Harris County client was charged with DWI second and resisting arrest, with a gun in the car and a 0.201 blood test. There was an unlawful carrying of a weapon charge too. Every charge was dismissed. See more of our case results. Prior results do not guarantee a similar outcome.
Charged with unlawful carrying of a weapon in Houston? Call Blass Law
Jay Blass Cohen has defended weapons cases in Houston since 2009 and has never worked for the prosecution. We’ll look at how the officer found the gun before anything else, because that’s where most of these cases are won.
Call (713) 664-4000. If you were arrested this week, call now.
Related Weapons Charges
Reviewed by Jay Blass Cohen, founder of Blass Law PLLC, ACS-CHAL Forensic Lawyer-Scientist, certified Drug Recognition Expert, and SFST instructor, serving Houston since 2009. This article is general information, not legal advice for your situation. Prior results do not guarantee a similar outcome.