Weapons Charges in Texas — When Carrying a Firearm Becomes a Crime

Texas enacted permitless carry in 2021, allowing most residents 21 and older who are not otherwise prohibited from possessing a firearm to carry a handgun — openly or concealed — without a license. For many Texans, this expanded the scope of what they can legally do with a firearm they lawfully own. What it did not do is eliminate weapons charges from Texas criminal law. The circumstances under which legal gun ownership crosses into criminal conduct remain significant, the consequences of weapons charges in Texas are serious, and the specific situations that most commonly result in weapons arrests in Bexar County are ones that many gun owners do not fully understand.

This post addresses the most common weapons charges in Texas, explains precisely when carrying a firearm that you legally own becomes a criminal offense, and identifies the specific situations that most frequently result in weapons arrests in the San Antonio area.

Who Cannot Legally Possess a Firearm in Texas

Before addressing where and how legal carriers can run into legal trouble, the threshold question is whether a person is legally permitted to possess a firearm at all. Both Texas and federal law prohibit certain categories of people from possessing firearms regardless of any permit or license.

Under Texas Penal Code Section 46.04, it is a felony for a convicted felon to possess a firearm anywhere other than their own home before five years have elapsed since the conviction or their release from confinement, supervision, or parole — whichever is later. After that five-year period, a person with a Texas felony conviction may possess a firearm in their own residence only. Federal law under 18 U.S.C. § 922(g) is significantly broader — federal law permanently prohibits felons from possessing any firearm or ammunition anywhere, with no residential exception and no restoration of rights after any waiting period absent a specific legal procedure.

The federal prohibition also applies permanently to anyone convicted of a misdemeanor crime of domestic violence under 18 U.S.C. § 922(g)(9) — the Lautenberg Amendment — including a Class A misdemeanor assault family violence conviction in Texas. This is one of the most consequential and most commonly misunderstood firearms prohibitions because it applies at the misdemeanor level, it is permanent, and many people with family violence convictions do not know it applies to them until they are arrested for felon in possession or prohibited person in possession of a firearm.

Other federal prohibitions include being under indictment for a felony, being an unlawful user of or addicted to a controlled substance, being an illegal alien, having been adjudicated as a mental defective or committed to a mental institution, having renounced United States citizenship, and being subject to certain domestic violence restraining orders. Texas state law adds persons on deferred adjudication for a felony and persons under a family violence protective order to the list of prohibited possessors in specific circumstances.

Carrying in a Prohibited Location

Even people who are fully legally permitted to carry a firearm cannot carry everywhere. Texas Penal Code Chapter 46 identifies a comprehensive list of locations where carrying a handgun — even by a person with a license — is prohibited. Carrying in a prohibited location is a criminal offense regardless of whether the person has a license to carry.

Prohibited locations under Texas law include premises of a school or educational institution, polling places on election day, courts and offices utilized by a court, racetracks, secured areas of airports, within 1,000 feet of the premises where an execution is being conducted on the day of execution, amusement parks, places of religious worship unless the organization provides notice that concealed or open carry is permitted, hospitals and nursing homes unless the hospital or nursing home provides notice that it is permitted, and establishments that derive 51 percent or more of their income from the sale of alcohol for on-premises consumption — commonly identified by a red 51% sign. Carrying in a 51% location is a Class A misdemeanor for a first offense and escalates to a third-degree felony for subsequent violations.

Federal law adds additional prohibited locations including federal buildings and lands, post offices, federal courthouses, military installations, and schools receiving federal funding. Military installations are particularly relevant in San Antonio — carrying a personal firearm onto Fort Sam Houston, Lackland Air Force Base, or Randolph Air Force Base is a federal offense regardless of Texas’s permitless carry law.

Unlawful Carrying of a Weapon

Texas Penal Code Section 46.02 governs unlawful carrying of a weapon — the charge most commonly associated with weapons arrests in Bexar County. Under the 2021 permitless carry law, a person who is 21 or older, not a member of a criminal street gang, not otherwise prohibited from possessing a firearm, and who is in a location where carrying is permitted may carry a handgun without a license. But Section 46.02 retains criminal liability in several specific situations.

Carrying while intoxicated remains a Class A misdemeanor regardless of permitless carry. A person who is legally permitted to carry but who is intoxicated while doing so — whether in a vehicle, on foot, or anywhere else — commits an offense under Section 46.02(a-1). This is one of the most common weapons charges arising from DWI arrests in Bexar County — an officer who arrests a driver for DWI and finds a firearm in the vehicle may add an unlawful carrying charge if the driver’s intoxication level supports it.

Carrying by a person under 21 who does not have a license to carry is also prohibited under the revised Section 46.02. Permitless carry applies only to persons 21 and older. A 19-year-old who carries a handgun without a license commits a Class A misdemeanor.

Displaying a firearm in a manner calculated to alarm — sometimes called brandishing — is an offense under Section 42.01 regardless of whether the person is licensed to carry. Pointing a firearm at another person, even without firing it, can support charges ranging from assault to aggravated assault with a deadly weapon depending on the circumstances.

Weapons Enhancements in Other Criminal Cases

One of the most significant ways weapons charges arise in Bexar County criminal cases is not as a standalone charge but as an enhancement to another offense. Texas Penal Code Section 12.35 provides that when a deadly weapon is used or exhibited during the commission of a felony or during immediate flight after the commission of a felony, the conviction is automatically enhanced by one degree — a third-degree felony becomes a second-degree felony, a second-degree becomes a first-degree, and a first-degree felony carries a mandatory minimum of fifteen years rather than five.

More significantly, a deadly weapon finding in the judgment of conviction carries consequences beyond the sentence enhancement. Under Texas Government Code Section 508.145, a person convicted of a felony with a deadly weapon finding is not eligible for parole until they have actually served one-half of their sentence rather than the standard one-quarter. This means the practical effect of a deadly weapon finding doubles the minimum time served in TDCJ for most felony offenses — a consequence that affects plea negotiations, trial strategy, and sentencing recommendations across every category of serious felony case.

Federal Weapons Charges in San Antonio

Federal weapons charges carry mandatory minimum sentences that do not exist under Texas law and are prosecuted in the United States District Court for the Western District of Texas — the federal court in San Antonio. The most common federal weapons charges in this area involve possession of a firearm by a prohibited person under 18 U.S.C. § 922(g), use of a firearm during or in relation to a drug trafficking crime under 18 U.S.C. § 924(c) — which carries a mandatory consecutive five-year sentence that cannot be suspended or reduced — and unlicensed dealing in firearms.

Federal prosecution of weapons charges in Bexar County most commonly arises when a firearm is found during a drug investigation or when a previously convicted felon is stopped by law enforcement with a weapon. The mandatory minimum sentences in federal court make weapons charges in a federal case significantly more consequential than the equivalent state charge — a conviction under Section 924(c) for using a firearm in a drug trafficking crime adds five years, by law, to whatever sentence the underlying drug offense carries, with no ability for the judge to reduce it regardless of the defendant’s individual circumstances.

How Weapons Charges Are Defended in Bexar County

The defense of a weapons charge in Texas follows the same analytical framework as any other criminal case — beginning with whether the search that produced the weapon was legally conducted. A firearm found during an unlawful traffic stop, an unlawful vehicle search, or an unlawful search of a residence may be suppressible under the Fourth Amendment. If the weapon is suppressed, the weapons charge typically cannot survive.

When the search was lawful, the defense analysis shifts to the elements of the specific charge — whether the location was actually a prohibited location, whether the carrier was actually intoxicated, whether the person is actually a prohibited possessor under the specific statute charged, and whether any applicable exceptions apply. The facts of each case determine which of these arguments are available and how strong they are.

If you are facing a weapons charge in San Antonio or anywhere in Bexar County — whether as a standalone charge or as an enhancement to another offense — call Barton & Associates at 210-500-0000. Consultations are free, confidential, and available 24 hours a day.