Houston Criminal Law Blog

EXPERIENCED. AGGRESSIVE. HOUSTON CRIMINAL DEFENSE LAW FIRM: The Law Office of Matthew D. Sharp

Carrying a Firearm in Your Car

Article I. Sec. 23 of the Texas Constitution states: “Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.”

It is perfectly legal for a citizen of Texas to carry a firearm in his or her car, so long as that person is not a felon or otherwise prohibited from possessing a firearm. The statute that prohibits the general carrying of firearms (by unlicensed holders) is found in the Texas Penal Code section 46.02, which states: “A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not: (1) on the person’s own premises or premises under the person’s control; or (2) inside of or directly en route to a motor vehicle or watercraft that is owned by the person under the person’s control.” However, this statute never applied to people who are “traveling.” (See the exceptions to Tex. P. Code sec. 46.02 that are set forth in Tex. P. Code sec. 46.15.) The statute, though, did not provide clarity on what they meant by “traveling” and the courts would conflict with each other in their definitions.

In 2005 the Texas Legislature passed a law that established a legal presumption that a person was traveling if he or she was in a private motor vehicle and not otherwise engaged in illegal activity for any crime other than a Class C misdemeanor. However, law enforcement continued to arrest people for unlawful carrying even though they would qualify for this legal presumption. In an effort to curb potential civil rights abuses by law enforcement the ACLU of Texas, along with the Texas Rifle’s Association and the National Rifle Association lobbied to create more rigid definition for traveling and to make it clear exactly what type of behavior was acceptable with regard to carrying a firearm in an effort to reduce wrongful arrests for unlawful carrying of a weapon. (see the story here.) This lobbying effort resulted in the submission of H.B. 1815 of the 79th Legislature, which loosened the gun laws further to allow for lawful carrying of weapons in Texas. Gov. Perry signed the law and it came into effect on Sept. 1, 2007. H.B. 1815 of the 79th Texas Legislature amended Tex. P. Code sec. 46.02 by adding subsection (a-1) which states that it is legal for anyone to carry a weapon in their car so long as the person does not “intentionally, knowingly, or recklessly” carry a handgun in a car that is: (1) in plain view; or (2) the person is (A) engaged in criminal activity other than a Class C misdemeanor that is a violation of a traffic or boating ordinance; (B) prohibited by law from possessing a firearm; or (C) a member of  a criminal street gang.

You might be asking yourself how this can apply to you. Where can you carry your firearm or weapon in your car or boat in such a way so that you do not violate the Texas Penal Code? This is a question that the lawyers at The Law Office of Matthew D. Sharp have dealt with repeatedly in recent years due to the continued aggressive prosecution of gun owners in Southeast Texas. The short answer is that anywhere the police officer considers “plain view” is off limits. Many courts will simply apply the “plain view” doctrine as it relates to drug cases with regard to a weapon. That means that if the officer sees the weapon at any point then they can arrest you for merely viewing the contraband. This interpretation of the law, however, does not jive with the language or the legislative intent of Tex. P. Code sections 46.02 (a-1) and 46.15.

In many cases people will place guns underneath their car seats, because it is out of view and relatively accessible in case of an emergency. Some people have put firearms in their center console, or in their glove compartment, but if law enforcement determines that they can see the weapon, even from accidental exposure (like getting your car insurance card out) then you could possibly be arrested for unlawful carrying of a weapon. The safest way to carry your firearm in your automobile is with a holster, but it is not necessary. The statutes are not clear exactly how one could carry a weapon in a car that is not in “plain view.” What is considered “plain view” for criminal liability purposes is based upon the facts surrounding the weapon seizure.

Since the law is still unsettled law enforcement continues to arrest people for lawfully carrying their firearms. Every time you carry your weapon in your car you are vulnerable to be arrested for unlawful carrying a weapon. A competent and effective defense attorney will ensure that your rights, whether they are constitutional in nature or statutory presumptions, are preserved and your freedom is protected. Being convicted of a firearm offense can have an adverse effect on your right to obtain or maintain a concealed handgun, it could affect your employment, and it may result in a forfeiture of your weapon. If you or someone you know has been charged with unlawful carrying of a firearm then call the Law Office of The Law Office of Matthew D. Sharp today for your free consultation.

 

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