By: Mark Diaz
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What You Should Know Before Exercising Your Texas Open Carry Rights
On Sept. 1, 2021, it became legal in Texas for those 21 and older to carry a handgun openly or without a permit in a holster. The law was modified from 2016 when it was required to have a permit to carry a firearm concealed or openly. Before exercising your Texas open carry rights, there are essential things to be aware of. If you have recently been charged with a crime regarding open carry, talk to our Galveston County criminal defense lawyer at Mark Diaz & Associates today.
Gun Crimes On The Rise In Texas
While the new open carry law passed in 2021, many people opposed the legislation. One of the reasons was that shootings in Texas increased 14% in 2020 compared to the year before. This meant there were approximately 2,800 shootings that year. Still, the law passed easily in the Republican-held state legislature and was signed by GOP Governor Greg Abbott.
When Open Carry Is Allowed In Texas
One of the most critical aspects of the Texas open carry law that was revised in 2021 is the difference between long guns and handguns. You can open carry a long gun in Texas if it is not displayed in a way ‘calculated to alarm’ others.
On the other hand, Texans can only open carry handguns in a public area if it is in a holster. However, it is not required to be a shoulder holder or belt holster. The new law has no restrictions on the type of holster, so the following are legal:
- Waistband holsters
- Belly bands
- Pocket holsters
- Ankle holsters
- Thigh holsters
The law also authorizes open carrying of handguns by some security officers, as well as most individuals who are on their property. Also authorized are people engaging in a legal activity, including sports shooting.
Who Is Not Allowed To Open Carry In Texas
While the new law allows most people to open carry, certain types of people are not allowed to do so. For example, to qualify for permitless open carry, you have to be over 21 and not have been convicted in the last five years of any of the following crimes:
- Misdemeanor bodily assault causing injury
- Deadly conduct
- Terroristic threat
- Disorderly conduct of a firearm, involving discharge or display
If you have been arrested for open carrying, remember to talk to a Galveston County defense attorney right away. You also cannot carry a handgun in the state if any of the following apply to you:
- You were convicted of a crime and imprisoned for more than one year
- You are currently a fugitive from justice
- You have been declared mentally incompetent
- You are living in the US illegally or unlawfully
- You are an unlawful user of or addicted to any controlled substance
- You were discharged from the US armed forces under a dishonorable discharge
- You renounced your United States citizenship
- You have a restraining order against you for stalking, harassing, or threatening an intimate partner or their child
- You have been convicted of a domestic violence misdemeanor in the last five years
Also, if you carry a gun when intoxicated, you can be charged with a Class A misdemeanor. If convicted, you may receive up to a year in jail and a fine of $4,000.
Places Where You Cannot Open Carry In Texas
You may open carry a handgun in most public areas as long as it is in a holster. However, the law restricts you from carrying in the following areas. If you open carry in these locations, you could be charged with a crime:
- Secured parts of an airport
- Polling places on voting day
- Businesses where there is a sign banning handguns, and they tell you that you cannot carry them there
- Businesses permitted by the state that get 51% or more of their income from selling alcohol
- Amusement parks
- Hospitals, nursing facilities, mental hospitals, and correctional facilities
- A place where there is an open governmental meeting going on
Furthermore, the law restricts Texans from knowingly, intentionally, or recklessly carrying handguns openly in cars or watercraft that are under their control, unless the firearm is in a holster.
You also could face an unlawful carrying charge if you carry a gun on private property. It depends on whether the property owner has banned the carrying of handguns on the property or not.
Can You Still Get A License To Carry In Texas?
Yes, you can still get a concealed carry license in Texas, but it is not required. Under the old law, you had to pass a gun safety class, and background check to get a permit. The new carry law removed these restrictions. The new law also directed the Texas Department of Public Safety to create a free online guy safety class. But training is no longer mandatory to carry a handgun openly or concealed.
However, the new law does not alter the background check requirement to purchase a firearm. If you buy a gun through a licensed firearms dealer, it is still required to have a background check. If you have been convicted of a crime recently, you may not be able to buy a handgun or long gun. But you do not need a background check when purchasing through a private seller.
Carrying A Handgun On Company Property
On the job front, the new open carry law did not make major changes to Section 52.062(b) of the Texas Labor Code. An employer can still ban an employee from possessing any firearm. In addition, the law defines ‘premises’ as a building or part of a building, but it does not refer to a parking lot, parking garage, sidewalk, street, or driveway.
Also, the law does not change the employer’s immunity from civil liability if there is an injury or death arising from an occurrence involving a gun that the company is required to allow on the property.
Carrying Some Weapons Are Still Illegal
It is legal to openly carry long guns and handguns (in a holster) in Texas now. But there are some weapons that are still illegal to carry. If you carry any of the following, you could be charged with unlawful carrying:
- Machine gun
- Short-barrel firearm
- Armor-piercing ammunition
- Zip gun
- Explosive weapon
- Tire deflation device
Gun Charge Defenses In Texas
If you were arrested for illegally carrying a handgun in Texas, you should retain the best attorney you can immediately. Your attorney will craft a defense strategy to safeguard your rights and freedom. Below are some common defenses to illegally carrying a handgun:
Lack of Criminal Intent
The state must prove beyond a reasonable doubt that you knowingly, intentionally, or recklessly carried a gun. What if you were unaware that you were carrying the weapon at the time? Or, perhaps you meant to take the gun off before you went into an area where open carry is banned?
For instance, criminal defense attorneys sometimes defend clients charged with unlawfully carrying a gun into a courthouse. Perhaps you had the gun on or with you and forgot about it. Most people would not intentionally carry a gun into a public courthouse.
The question in this situation is if the mistake you made carrying a gun into a prohibited place is ‘reckless’ under the law. Your attorney may argue that you were negligent but not reckless.
You Were On Your Own Property
You may have been unlawfully carrying a gun openly, but perhaps the premises on which you were carrying was one you owned or had control over? If that is the case, the county prosecutor will not be able to prove you were carrying the gun illegally in a place that was not yours or in your control.
How A Gun Crime Conviction Can Derail Your Life
With the new open carry law in Texas, you might believe that you can carry anywhere and anytime without thinking about it. But as you know after reading the information above, there are many times and places where you cannot carry.
If you are convicted of a Texas gun crime, you face more than jail time and fines. When you have a conviction for any gun crime on your record, it will show up on a criminal background check. This could prevent you from getting a job or keeping your current one. Further, you could have difficulty getting specific government jobs and benefits.
Contact Our Galveston County Criminal Defense Lawyer
Were you arrested after open carrying a handgun in Texas? You may think that the law is on your side, and by being honest and open with the police, they will let you off. However, the open carry law in Texas is complex, and you could violate it without meaning to do so. If you are being detained by law enforcement for an open carry violation, you need to talk to a criminal defense attorney today. Contact our Galveston County criminal defense lawyer at Mark Diaz & Associates today at (409) 515-6170.