The measures in reference to Texas’ new gun laws, regularly called “Constitutional Carry” go into effect on September 1, 2021. Effective September 1, the applicable provisions under Tex. Penal Code, Chapter 46, have been amended to allow certain persons to carry a weapon on their person without a license, under certain potential restrictions. The following is a primer on many, but not all, of the criminal law considerations that practitioners must consider when considering and/or advising clients on the change in Texas’ gun laws.
The law will refer to a person without a license to carry (“LTC”) after September 1, 2021, as a non-prohibited person. Until September 1, 2021, a non-prohibited person MUST continue to carry their handgun as if they were unlicensed.
Texas Representative Matt Schaefer is the author of HB 1927. He gave the following closing comment for the bill on May 23, 2021 “We are charged with defending the freedoms that are owed to Texans and guaranteed by the Constitution. My faith is with law-abiding Texans, who are the first to respond because they are there.” In modern parlance, the term “constitutional carry,” also called “permitless carry” or “unrestricted carry,” refers to legal carrying of a handgun, either openly or concealed, without a license or permit. The general idea behind constitutional carry is that every person who is not prohibited from legally owning a handgun should be free to carry it openly or concealed in public without fear of being prosecuted simply for exercising their right
A person carrying a handgun under the authority of Texas’ new gun law must not be prohibited under state and/or federal law against carrying a firearm and must meet the following requirements: must be 21 years of age or older; and must not be prohibited from possessing a firearm in a public place in Texas. As to the second requirement, it is imperative to understand who will be prohibited from possessing a firearm in a public place in Texas. The following groups are prohibited under State and federal law from possessing a weapon: persons who have been convicted of a felony. (See Tex. Penal Code §§ §12.04 & 46.04(a) (effective Sept. 1, 2021); see also 18 U.S.C. § 922(g)(1)); persons who have been convicted of an misdemeanor crime of assault involving a family or household member before the 5th anniversary or release from confinement or community supervision (whichever is later). (See Tex. Penal Code § 46.04(b)(effective Sept. 1, 2021);but see 18 U.S.C. § 922(g)(9), it is “unlawful” for anyone “convicted in any court of a misdemeanor crime of domestic violence” to possess a weapon, regardless of the time since the conviction); persons, other than a peace officer, who are subject to a protective order, who received notice of the order and before the expiration of the order. (See Tex. Penal Code §§46.04(c)(effective Sept. 1, 2021); see also 18 U.S.C. § 922(g)(8)); persons who have been convicted (a final judgment of guilt) within the past 5 years of an Assault Causing Bodily Injury (see Tex. Penal Code §§§ 22.01(a)(1) & 46.02(a)(2)(B)), Deadly Conduct,(see Tex. Penal Code §§ 22.05 & 46.02(a)(2)(B)-, Terroristic Threat, (see Tex. Penal Code §§ 22.07 & 46.02(a)(2)(B)(effective Sept. 1, 2021)), Disorderly Conduct-Discharging a Firearm, (see Tex. Penal Code §§ 42.01(a)(7) & 46.02(a)(2)(B)(effective Sept. 1, 2021)), and Disorderly Conduct-Displaying a Firearm, (see Tex. Penal Code §§ 42.01(a)(8) & 46.02(a)(2)(B)(effective Sept. 1, 2021)); someone who is a fugitive from justice. (See 18 U.S.C. § 922(g)(2)); someone who unlawfully uses or is addicted to a controlled substance. (See 18 U.S.C. § 922(g)(3)); someone “who has been adjudicated as a mental defective or who has been committed to a mental institution.” (See 18 U.S.C. § 922(g)(4)); an alien illegally in the United States or who has been admitted into the United States under a nonimmigrant visa. (See 18 U.S.C. § 922(g)(5)); anyone who “has been discharged from the Armed Forces under dishonorable condition.” (See 18 U.S.C. § 922(g)(6)); and anyone who was a citizen of the United States, but has renounced his or her citizenship. (See 18 U.S.C. § 922(g)(7)). Additionally, a person may not openly carry a handgun in plain view pursuant to Texas’ new gun laws while in a motor vehicle or watercraft that is under the person’s ownership or control, unless the person is 21 years of age or older, or has an LTC and the handgun is in a holster. (See Tex. Penal Code § 46.02(a-1)(1). Finally, a person may not carry, in plain view or otherwise, a handgun in a motor vehicle or watercraft that is under the person’s ownership or control if the person is engaged in criminal activity, prohibited by law from possessing a firearm, or a member of a criminal street gang. (See Tex. Penal Code § 46.02(a-1)(2). Under Texas’ new gun law, there will be no requirement that a person carrying a handgun be a Texas resident.
Texas’ new gun laws primarily affect handgun possession. Much of the change in Texas’ gun laws are an effort to conform handgun and long gun carry laws. Previously, possession of any firearm including a long gun was prohibited in any place listed in Tex. Penal Code § 46.03, while places prohibited to license holders carrying handguns were listed in Tex. Penal Code § 46.035. These two prohibitions will now be combined in Tex. Penal Code § 46.03 (effective Sept. 1, 2021), which means that long guns are now explicitly prohibited in 51% establishments, professional sporting events, correctional facilities, hospitals, nursing facilities, mental hospitals, amusement parks, civil commitment facilities, and open meetings of governmental entities.
Other important considerations in understanding the change in Texas’ gun laws is understanding what is considered a handgun and how can handguns be carried under the new law. The term handgun refers to any firearm that is designed, made, or adapted to be fired with one hand. (See Tex. Penal Code § 46.01(5)(effective Sept. 1, 2021)). Pursuant to the upcoming changes, there are two legal methods of carrying a handgun. A person carrying a handgun under the authority of Texas’ new gun laws may either carry that handgun: (1) concealed; or (2) openly in a holster. Generally speaking, “concealed” means that no part of the handgun is visible based on ordinary observation, while “openly in a holster” means that a handgun is partially or wholly visible based on ordinary observation MUST be carried in a holster. (See e.g. Tex. Penal Code § 46.035 (effective Sept. 1, 2021)).
When reviewing all of the above explained changes, the location where a person may legally carry a handgun must still be considered. In most instances, a person carrying a handgun under the authority of Texas’ new gun laws may do so in any public, non-prohibited place, or a public place without effective notice. Businesses that chose to disallow the carrying of weapons can provide notice either verbally or in writing (ex. posted signage) that carrying a handgun is prohibited. On the other hand, the following places are generally prohibited to a person carrying a handgun, even under the recent changes,: schools or educational institutions, a transportation vehicle of the school or educational institution, or the grounds where a school sponsored activity is taking place, (see Tex. Penal Code § 46.03(a)(1)(effective Sept. 1, 2021));polling places including places offering early voting, (see Tex. Penal Code § 46.03 (a)(2) (effective Sept. 1, 2021)); courts or offices utilized by a court, (see Tex. Penal Code § 46.03(a)(3) (effective Sept. 1, 2021)); racetracks where pari-mutuel wagering takes place (horse or dog racing), (see Tex. Penal Code § 46.03(a)(4) (effective Sept. 1, 2021)); secured areas of an airport. (see Tex. Penal Code § 46.03(a)(5) (effective Sept. 1, 2021)); within 1,000 feet of locations designated by TDCJ as a place of execution on the day a death sentence is to be imposed (does not include a person’s home or place of employment), (see Tex. Penal Code § 46.03(a)(6) (effective Sept. 1, 2021)); bars (51% or more establishments), (see Tex. Penal Code § 46.03(a)(7) (effective Sept. 1, 2021)); professional sporting events, (see Tex. Penal Code 46.03(a)(8) (effective Sept. 1, 2021)); correctional facilities , (see Tex. Penal Code § 46.03(a)(9) (effective Sept. 1, 2021)); civil commitment facilities, (see Tex. Penal Code § 46.03(a)(10); hospitals or nursing homes, (see Tex. Penal Code § 46.03(a)(11) (effective Sept. 1, 2021)); mental hospitals, (see Tex. Penal Code § 46.03 (a)(12) (effective Sept. 1, 2021)); amusement parks, (see Tex. Penal Code § 46.03 (a)(13) (effective Sept. 1, 2021)); and a room or rooms of an open meeting of a governmental entity. (See Tex. Penal Code § 46.03(a)(14) (effective Sept. 1, 2021)).
However, License holders are only prohibited in carrying inside amusement parks and hospitals if effective notice is given per Tex. Penal Code §s 30.06 & 30.07 (effective Sept. 1, 2021). Additionally, a room or rooms of an open meeting of a governmental entity will no longer be prohibited to license holders per Tex. Penal Code § 46.15(b) (effective Sept. 1, 2021). An unlicensed person carrying a long gun or a handgun is strictly prohibited and risks being charged with a felony for carrying into the room or a meeting of a governmental entity.
Private property owners may give notice to persons other than license holders that entering the premises with a firearm constitutes a trespass. This notice may now be provided by a Tex. Penal Code § 30.05 “No Firearms” sign personally by the owner or someone with apparent authority. The trespass notices for license holders will remain the same under Tex. Penal Code § 30.06 and/or 30.07. Additionally, if an establishment sells alcohol and receives 51% or more of its income from the sale of alcohol, it must display 51% signage to give to all persons that the place is prohibited. Only license holders will be provided relief if the establishment does not provide effective notice. See Tex. Penal Code § 46.15(p).
People may decide to prohibit firearms and other weapons on their premises or property, but muse post a sign at each entrance that contains specific language, in both English and Spanish, in certain coloring and sizing. If effective notice is provided under Tex. Penal Code § 46.15(o) (effective Sept. 1, 2021)), any person who carries a firearm (even accidentally) into that location will not have the benefit of the newly created defense to prosecution intended to guard against mistakes.
In order to receive the protections afforded by Texas’ new gun laws, a person openly carrying a handgun MUST keep the handgun holstered. A handgun should not leave the holster unless the person is acting in justified defense (Tex. Penal Code, Chapter 9) or another lawful activity. A person cannot display a firearm in manner calculated to alarm. This has commonly been referred to as brandishing. The Tex. Penal Code criminalizes the general display of a firearm as either disorderly conduct or deadly conduct. If a person intentionally or knowingly displays a firearm or other deadly weapon in a public place in a manner calculated to alarm, this is the act of disorderly conduct. Additionally, an unlicensed person commits an offense if the person carries a handgun while the person is intoxicated and is not: on their own property or property under their control or on private property with the consent of the owner of the property; or inside or directly enroute to a motor vehicle or watercraft: (i) that is owned by the person or under their control; or (ii) with the consent of the owner or operator of the vehicle or watercraft. See Tex. Penal Code § 46.02(a-6)(1).
