How The New Constitutional Carry Law Could Affect Weapons Charges in Texas
By: Mark Diaz
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How The New Constitutional Carry Law Could Affect Weapons Charges in Texas
The term constitutional carry is often used interchangeably with “open carry,” “permitless carry,” or “unconcealed carry,” but they all generally refer to the same concept. Individuals can legally possess a firearm in a public place, without a permit, and without the need to hide the gun on their person.
Regardless of the stance you take on the matter, constitutional carry takes on new meaning after Governor Abbott signed multiple gun measures in June 2021. The Texas Firearm Carry Act of 2021 provides that:
- A person who is 21 years or older is not required to have a permit to carry, possess, transport, or store a firearm
- The law only applies to individuals who are not otherwise prohibited by US or Texas law from possession of a gun
- The bill goes into effect on September 1, 2021
While these points may seem relatively clear-cut, you might be surprised to learn the extremely convoluted legal concepts involved with constitutional carry. There are complications involved with any questions arising under the Second Amendment of the US Constitution and the Texas Constitution parallel provision, Section 23 on the Right to Keep and Bear Arms. Plus, because of the relationship between federal and state laws, there is an additional level of complexity.
This legal landscape can make it difficult to understand your rights, which means you can run into trouble through mistakes or errors in judgment. If you are facing gun charges, it is crucial to retain an experienced criminal defense lawyer in Galveston County right away. Though the Texas constitutional carry law will not be effective until September 1st, 2021, it is still worthwhile to review the basics.
Overview of House Bill 1927
The recently signed bill on constitutional carry puts Texas in line with other US statutes that allow handguns in holsters to be carried in public, without a permit. Currently, and until the legislation becomes effective in September, a person must obtain a license to carry a handgun – both open or concealed. There are numerous requirements for licensing under existing law, including:
- Submitting fingerprints
- Completing at least six hours of firearm safety training
- Passing a written test
- Conducting a shooting proficiency test
- Complying with a criminal background check
These rules have been established via legislative powers under the Texas Constitution, which empowers lawmakers to regulate the wearing of arms with a view of crime prevention. The enactment of HB 1927 eliminates these requirements and makes numerous changes to current gun laws in Texas. A few highlights include:
- The law specifically applies to carrying a handgun in public without a permit.
- There are enhanced penalties for possession by felons and those convicted of domestic violence.
- If you were previously convicted of illegally carrying a gun in a public place, you have expanded options for having the matter expunged.
- Anyone who inadvertently carries their firearm into a place where prohibited may claim mistake as an affirmative defense.
- The Texas Department of Public Safety must create a free, online firearm safety course since training is no longer a requirement.
HB 1927 and Police Interactions
Another key provision in the new constitutional carry law involves the powers of law enforcement. An officer may apprehend and disarm an individual when he or she reasonably believes that doing so is necessary to protect the individual, police, or someone else. The officer is required to return the gun after determining that there is no threat and there is no other criminal violation.
Texas Gun Laws Not Impacted by Open Carry
Now that you have a general idea of the recently enacted Texas legislation, it is also important to know what has NOT changed.
Places Where Open Carry is Unlawful
It remains illegal to be in possession of a firearm, whether concealed or open carry, in the following locations:
- On grounds where a high school, college, or professional sports event takes place
- In a correctional facility
- At an establishment that makes 51 percent or more of its revenue from the sale or service of alcohol
- In a hospital or nursing home
- In certain government buildings
- Secured areas of airports
- Other spaces designated by state or federal law
Unlawful Possession by Certain Individuals
Under both state and federal law, it is illegal for a convicted felon or an individual currently serving or recently released from a felony deferred adjudication to carry a firearm; there are also prohibitions on possession by someone who has been convicted of a domestic violence crime or is the subject of a protective order for domestic violence.
Long Guns and Rifles
The constitutional carry statute also does not impact the carrying of rifles, which a person can legally carry in public – so long as other prohibitions do not apply.
Penalties for Violations of Texas Gun Laws
At the outset, the punishment for a violation of firearms laws depends upon whether the offense is a misdemeanor or felony. Additional considerations include your prior criminal history and surrounding circumstances, so the penalties may vary substantially. As a baseline, you can review some of the charges and punishment for some common Texas gun crimes:
- Unlawful carrying of weapons is a Class A Misdemeanor, punishable by up to a year in jail, a maximum fine of $4,000, or both. However, the offense is charged as a Third Degree Felony if you intentionally carry a gun into a store or bar licensed to sell alcoholic beverages.
- A violation of the statute in places where weapons are prohibited is also a Third Degree Felony. A conviction could lead to a sentence of 2 to 10 years of incarceration and a fine of $10,000.
- Under current law, those who do have proper permits are still prohibited from carrying under certain circumstances and in designated areas. One point to note is that someone with a concealed carry license must actually keep it hidden. Intentionally displaying the firearm in a public place is a Class A Misdemeanor, though it may be a defense to claim that the weapon was holstered.
Special Considerations on Texas Versus Federal Gun Laws
In general, Texas statutes on firearms are less restrictive than federal laws. The constitutional carry law certainly supports this theory, as US gun control statutes do not include similar provisions. One specific note involves possession of a firearm by a felon, which is prohibited under federal law.
However, Texas allows a person to possess a gun in their own household if at least five years have passed since the completion of the felony criminal sentence, whether that be release from prison, community supervision (probation), parole, or other involvement with the criminal justice system.
Additional Gun Laws Signed by Governor Abbott
There were several other firearms-related bills signed that will also go into effect in Texas in September 2021. They include:
- A law the prevents hotels and motels from setting gun policies that restrict the Second Amendment rights of guests
- A legal prohibition on government bodies that are barred from contracting with organizations that discriminate against the firearm and ammunition industries
- A measure that specifies and expands the requirements for holsters, giving handgun carries more freedom to choose and clarity on legal compliance
- A law that eliminates firearm suppressors, also known as silencers or muzzles, from the list of prohibited weapons under state law
- A statement that says firearms and ammunition manufacturers, sellers, and distributors are essential businesses, referring to lockdowns resulting from COVID-19
Another measure that Governor Abbott signed will have a questionable impact: A prohibition on state and local governments from enforcing any new federal gun rules that affect Second Amendment rights. While every person in the US is subject to federal government laws, the key when it comes to criminal statutes is enforcement.
Texas officials may not take action to enforce federal laws, but the state is also under the jurisdiction of federal officials. You could be arrested by either state or federal officials – for violations of either state or federal law.
Some interesting conundrums could develop, making it critical to retain a Galveston County criminal defense lawyer for help with:
- Gathering evidence
- Assessing exhibits, witnesses, and other information the prosecution may use
- Developing defense strategies
- Handling discovery requests
- Representing you at trial
Discuss Gun Laws with a Criminal Defense Lawyer in Galveston County
This summary of the Texas constitutional carry law and other new firearms statutes is helpful, but an overview cannot replace the knowledge, experience, and skills an attorney brings to a gun crimes case. You could be facing high fines and a long term of imprisonment for a conviction, and there are additional implications for your future. Collateral consequences of a criminal record can be harsh, especially when they impact your Second Amendment rights.
However, there are strategies for fighting the charges and presenting defenses, which could lead to a dismissal, acquittal, or plea bargain. It is the objective of Mark Diaz, Criminal Defense Attorney, to pursue all possible tactics to obtain a favorable outcome. For more information on our legal services to individuals in Galveston County and Greater Houston, please call (409) 515-6170. You can schedule a free appointment with a Galveston criminal defense attorney who can provide additional details.
Mark Diaz & Associates is a Criminal Defense Law Firm in Galveston, Texas representing clients throughout Galveston, Chambers and Harris Counties including but not limited to Tiki Island, Jamaica Beach, Texas City, League City, Alvin, Algoa, Santa Fe, Hitchcock, La Marque, Bayou Vista, Bacliff, San Leon, Dickinson, Kemah, Bolivar Peninsula, Clear Lake Shores, and Friendswood.