Since permitless carry took effect on 1 September 2021, most Texans who are twenty-one or older and not otherwise disqualified may carry a handgun in public without a license. Section 46.02 is what remains: it defines who still commits an offense by carrying, and in what circumstances. Most of those offenses are Class A misdemeanors, but carrying while prohibited from possessing a firearm is a second degree felony with a five-year minimum. The offense is set out at Texas Penal Code Section 46.02.
Who commits unlawful carrying under subsection (a)?
Subsection (a) is a three-part test, and all three parts have to be true at once. First, the person intentionally, knowingly, or recklessly carries a handgun on or about his person. Second, at that time the person is either younger than twenty-one, or has been convicted within the preceding five years of an offense under Section 22.01(a)(1) assault causing bodily injury, Section 22.05 deadly conduct, Section 22.07 terroristic threat, or Section 42.01(a)(7) or (a)(8) disorderly conduct involving a firearm. Third, the person is not on his own premises or premises under his control, and is not inside of or directly en route to a motor vehicle or watercraft that he owns or controls.
Read together, that means an adult over twenty-one with a clean five-year record does not commit an offense under subsection (a) by carrying a handgun in public. The offense targets people under twenty-one and people with recent qualifying convictions.
What about carrying a handgun in your own vehicle?
Subsection (a-1) covers the vehicle situation and it has two branches. A person commits an offense if he carries a handgun in his own motor vehicle or watercraft and the handgun is in plain view, unless the person is twenty-one or older or licensed under Chapter 411 of the Government Code and the handgun is carried in a holster. He also commits an offense if, while carrying in the vehicle, he is engaged in criminal activity other than a Class C misdemeanor traffic or boating violation, or he is prohibited by law from possessing a firearm.
The holster requirement is the part people miss. A handgun sitting visible on a seat or a console is not the same as a handgun visible in a holster, and the exception is written around the holster.
What are the other ways to violate Section 46.02?
Subsection (a-4) covers a location-restricted knife — defined by Section 46.01 as a knife with a blade over five and one-half inches — carried by a person younger than eighteen who is not on his own premises, not in his own vehicle, and not under the direct supervision of a parent or legal guardian.
Subsection (a-5) makes it an offense to carry a handgun and intentionally display it in plain view of another person in a public place, with an exception where the handgun is partially or wholly visible but is carried in a holster. Subsection (a-6) makes it an offense to carry a handgun while intoxicated, unless the person is on his own property or on private property with the owner’s consent, or is inside of or directly en route to a qualifying vehicle or watercraft.
Subsection (a-7) is the serious one. It applies when a person carries a handgun, is not on his own premises and not in his own vehicle, and at the time is prohibited from possessing a firearm under Section 46.04(a), (b), or (c) — the felon-in-possession, family-violence, and protective-order provisions. Subsection (a-8) makes clear that the same conduct can be prosecuted under subsection (a-7) and under another provision as well.
What is the punishment range for unlawful carrying?
| Subsection violated | Offense grade | Punishment range |
|---|---|---|
| (a), (a-1), (a-5), or (a-6) | Class A misdemeanor | Up to one year in county jail, a fine up to $4,000, or both (Sec. 12.21) |
| (a-4), a location-restricted knife carried by a person under eighteen | Class C misdemeanor | Fine up to $500; no confinement is available (Sec. 12.23) |
| (a-7), while prohibited from possessing a firearm under Section 46.04(a) | Second degree felony | 2 to 20 years in TDCJ with a minimum term of imprisonment of five years, plus a fine up to $10,000 (Sec. 12.33) |
| (a-7), while prohibited from possessing a firearm under Section 46.04(b) or (c) | Third degree felony | 2 to 10 years in TDCJ, plus a fine up to $10,000 (Sec. 12.34) |
Section 46.02 assigns the grades; the ranges come from Chapter 12 of the Penal Code, except the five-year minimum, which is written into Section 46.02(e)(1) itself. Old subsection (c), which set out a different punishment scheme, was repealed by House Bill 1927 in 2021 and no longer exists. Anything you read online that quotes subsection (c) is describing law that was repealed five years ago.
How does the statute define its terms?
Section 46.01 defines a handgun as any firearm designed, made, or adapted to be fired with one hand, and a location-restricted knife as a knife with a blade over five and one-half inches. Section 46.02(a-2) defines premises to include real property and a recreational vehicle used as living quarters, which covers a travel trailer, a camping trailer, a truck camper, a motor home, and a horse trailer with living quarters. Subsection (a-3) supplies the definition of watercraft.
Charged with unlawful carrying in Harris County?
A great many unlawful carrying charges rest on an assumption that turns out to be wrong — about the person’s age, about whether a five-year-old conviction actually qualifies, about whether the handgun was in a holster, or about whether the stop that produced the gun was lawful in the first place. Call Blass Law at (713) 664-4000 or request a case evaluation.
Related: unlawful carrying of a weapon, Texas Penal Code Section 22.02, aggravated assault, and what is a Class A misdemeanor in Texas.
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.