An Unlawful Carrying of a Weapon Case

The Complexity of Unlawful Carrying of a Weapon Cases and Concealed Weapons

I worked on an Unlawful Carrying of a Weapon case recently that was ultimately dismissed through a pre-trial diversion.  The unlawful carrying of a weapon law can be confusing.  In this particular case, my client’s boyfriend was pulled over, she was in the passenger seat.

After talking with the officer she told him she had a gun in her purse and gave it to him, she was not licensed to carry a gun.  She was arrested.  Had she been in her own vehicle, or driving this vehicle she would not have been arrested since the gun was concealed.

Details About the Complexity

Confused?  Here is the penal code section on unlawful carrying of a weapon:

Sec. 46.02.  UNLAWFUL CARRYING WEAPONS.  (a)  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 or under the person’s control.
    1. A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle or watercraft that is owned by the person or under the person’s control at any time in which:
      1. the handgun is in plain view, unless the person is licensed to carry a handgun under Subchapter H, Chapter 411, Government Code, and the handgun is carried in a shoulder or belt holster; or
      2. the person is
        1. engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic or boating;
        2. prohibited by law from possessing a firearm; or
        3. a member of a criminal street gang, as defined by Section 71.01.

When You can Carry a Gun

So if we break this down, if you DO NOT have a license to open carry a gun, it is ok to have a concealed weapon if

  1. You are on your own premises or a premise under your control

OR

  1. You are in or walking to your car/boat that you own, or that is under your control

It is ILLEGAL if:

  1. The gun is in plain view (must be concealed)
  2. If you are complying legally as above BUT are in the process of committing a class B misdemeanor or higher. (For example, you are legally concealing the gun in your car you are driving while you have some marijuana in your pocket, or while you are driving drunk)

My client’s problem was that she was in a car that was not hers, and was not under her control.  Luckily we were still able to get a dismissal, but its definitely a lesson learned for her.

Eric Benavides
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Eric Benavides

Criminal Defense Attorney at Benavides & Serrano
Eric Benavides is a Houston Criminal Defense Attorny and immigration lawyer.He is one of the co-founders of Benavides and Serrano.He is a member of the Harris County Criminal Defense Lawyers Association, Texas Criminal Defense Lawyers Association, Houston Young Lawyers Association, and is licensed to practice law in the state by the Supreme Court of Texas and federally by the Southern District of Texas.
Eric Benavides
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