Unlawful Carrying Weapon
Unlawful Carrying a Weapon (UCW)
Unlawful Carrying Weapons, or UCW, is an offense that prohibits a person from carrying a weapon, sometimes in a certain place or method of carrying.. There are specific weapons listed, such as a handgun, or illegal knife, and the legality depends how or where the person is carrying the weapon. This includes otherwise legal handguns improperly carried or transported in a vehicle. In fact, the most common UCW cases in Travis County are handguns improperly stored in a car or truck. There's a fine line with car cases involving UCW; if the weapon is in plain view, officers will arrest for UCW unless it's in a holster.
2021 Update! As of September 1, 2021, the law on carrying a handgun changed! Scroll down to New Gun Law in Texas or click New Gun Law in Texas for more information. You can also check out Robert's Unlawful Carry Video below, which outlines Is it Illegal to Carry a Gun in Texas?
What's Illegal in Texas for Carrying a Handgun
Check out our New Gun Law in Texas breakdown for more information, but generally speaking, as of September 1, 2021, it is now ILLEGAL in Texas under Penal Code 46.02 to carry a handgun outside of your home or vehicle (unless you’re directly en route to and from those locations) if you’re:
- (1) intoxicated,
- (2) prohibited from possessing a firearm under other law,
- (3) under 21 years old, or
- (4) convicted of certain offenses within five years from the date of carry.
- (5) to carry a handgun in plain view in a public place unless the handgun is in a holster,
- (6) to carry a handgun in plain view inside a vehicle unless you’re 21 (or if under 21, then permitted per Ch411) and the handgun is in a holster.
- (7) committing a crime or another offense while in car
What You Need To Know
One of the main issues in Unlawful Carrying a Weapon cases centers on subsection (a-1), which is when a person carries a handgun in a motor vehicle, and whether the handgun is in plain view. Generally, for a defense or exception to apply, the gun must be holstered or not in plain sight when carried in a vehicle.
UCW cases are toughly prosecuted in Austin. Prosecutors are very strict about Weapon Forfeitures, meaning even if the gun was legally purchased, they may require forfeiture if a dismissal is on the table.
Closely Related Offenses
Related areas to Unlawful Carrying a Weapon include other firearms offenses, as well as issues like road rage, which is classified as Deadly Conduct or sometimes Terroristic Threat, or even shooting a gun in a public area, which is charged as Discharge Firearm in Certain Municipalities.
If you're looking for other offenses that are related to this one, you can see more information below, or click related legal offenses.
Jail Release and Bond for Unlawful Carrying a Weapon
A person charged with Unlawful Carrying a Weapon is normally arrested and taken to jail. This will require the person to be "magistrated" (see a Judge during the Booking Process), which means there could be considerable delays awaiting a Judge and the volumes of paperwork required for a release. An Attorney can possibly speed that up.
Sometimes an officer will file an arrest warrant, which will require a Walkthrough to clear the Arrest Warrant. Doing a Walkthrough quickly is important, because most of the time a person does not go into the jail during the surrender process. Call us for more details if you have an Active Travis County Arrest Warrant.
Keates Law Firm can act quickly to assist with a personal bond to release that person. Be sure to read more about Bond, Personal Bonds, and Travis County Jail Releases.
Defenses for Unlawful Carrying a Weapon
The main defense on UCW cases involves "plain view," specifically subsection (a1)(1), which deals with guns carried in a vehicle. If holstered or if gun is not in plain view, there is a strong argument for dismissal. This may vary depending on the person's age as well as criminal record. Frequently, cases involve guns in a glove box, or under a seat, or even in a bag within the passenger compartment -- not necessarily in plain view, but certainly within arms reach and accessible. An in-depth caselaw analysis is required, specific to the facts, to see whether the location of the gun in a person's case is consistent with the statute and law.
If you'd like to talk in detail about your situation, or if you have questions, contact us for a Free Case Consultation. Keep in mind, Keates Law Firm only practices in Austin and Travis County.
Work with an Experienced Unlawful Carrying a Weapon Attorney
Hiring the right attorney from the beginning is important. Poor legal decisions will have a negative effect upon the case as it progresses. The Keates Law Firm has over 16+ Years Experience handling Unlawful Carrying a Weapon cases. Our focus is to try and have the case dismissed against you. We don't even discuss pleas until all legal and negotiation options have been explored in detail.
Call Us to talk about your particular case and situation. It's a 100% Free Phone Consultation with Criminal Defense Attorney Keates. No Sales Pitches, No Hassles. We'll see if we are the right Law Firm for you, and give you a quote. Be sure to check out Keates Law Firm's Reviews and also our past cases and Results.
How We Can Help
Your goal should be Dismissal for any Unlawful Carrying a Weapon charge. While not every case can be dismissed, often times the goal becomes avoiding jail, or getting a reduced charge, or even getting a favorable probation with a possible dismissal at the end, called Deferred Adjudication. If dismissed, a person can later seek an Expunction of a Criminal Record, which is where a Judge Orders the offense records destroyed, including police reports, court records, and prosecutor files.
Likewise, if Deferred Adjudication is successfully completed, the person can have thier record sealed through Motions for NonDisclosure.
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2021 Update! As of September 1, 2021, the law on carrying a handgun changed! Scroll down to New Gun Law in Texas Section for an in-depth analysis or click New Gun Law in Texas for more information.
2021 Changes to Gun Laws in Texas
On September 1, 2021, new gun laws were enacted that effect a citizen's right to carry a firearm. The new law siubstantially changes what is considered illegal when carrying a handgun. Let's discuss the new law, section by section.
Sec. 46.02. UNLAWFUL CARRYING WEAPONS
This is the main unlawful carrying weapon statute, with a long list of subsections addressing whether a firearm is carried on a person, in a car or boat, in your home, and whether that person carrying a gun is prohibited under a different law -- or based on age. The statute starts with subsection (a), which is where we'll start as well. If you prefer to watch a quick video, with Attorney Robert Keates explaining the statute, check out his video.
Section (a) – The First Part of P.C. 46.02
Section (a) begins by saying "A person commits an offense if the person:" and then goes on to list three different categories. First, (a)(1) talks about actually carrying the handgun. The mental state (awareness) of the person carrying the gun must be intentionally, knowingly, or recklessly. IN other words, they had to know (or should have known) they were carrying a gun.
The statute goes on to say that at the time they carried the gun, the person was either (a)(2)(A) under 21 or (a)(1)(B) has been convicted of assault, deadly conduct, terroristic threat, or disorderly conduct in last 5 years.
Subsection (a)(3) creates an exception to the above, saying that if the person (who is carrying a gun and under 21 or convicted as described above) is carrying the handgun on the person's own premises (or premises under the person's control), or if the person is inside of or directly headed to a vehicle or watercraft (that they own or under thier control), then the other subsections do not apply.
The Short Version - Texas P.C. 46.02(a)
This section only applies to people carrying a handgun in a public place who are under 21 or convicted within the last five years of certian offenses -- and may not apply to those people if they are in or on their direct way to their car or boat. Keep in mind that each subsection must be true to be in violation of the law.
Section (a-1) – Firearms in a Vehicle
Section (a-1) deals with handguns in a vehicle or watercraft. The statute begins similarly to section (a) concerning carrying a gun with the required mental state (awareness), but adds "in a motor vehicle or watercraft that is owned by the person or under the person's control..."
Subsection (A-1)(1) deals with handguns carried (in a vehicle or boat) in plain view. Essentially, the gun must be holstered if you're over 21. If it's not holstered, it must not be in plain view. Plain view means the gun can be seen by the officer (or another person) just by looking. If the officer has to open a case, or the glovebox, then it's not plain view. Specifically, 46.02(A-1)(1) says: If in plain view, it’s illegal, unless: the gun is holstered by a person over 21 years of age, or, if the person is under 21, the gun must be holstered and the person under 21 must also have a Chapter 411 License to Carry.
Under the next subsection, 46.02(A-1)(2), plain view does not matter. This subsection deals only with handguns carried in a vehicle or boat by a person either "engaged in criminal activity, other than a Class C traffic offense (or boating offense) or, by a person prohibited by law from possessing a firearms under any other law. Most commonly, this is a person convicted of a felony or violent misdemeanor in the past.
The "criminal activity" section under 46.02(a-1)(2)(A) has seen a rise of arrests -- and is typically the main type of UCW case here in Travis County. More on that below.
Breakdown of 46.02(a-1)(2)(A)“Criminal Activity”
This part of the Unlawful Carry Statute deals with people that are considered to be "engaged in criminal activity" while carrying a gun. The "criminal activity" must be something other than a traffic or boating type offense. So Speeding would not trigger this section. But you don't need to be on a crime spree to considered "engaging in criminal activity" for purposes of this section.
To get a better idea, we need to look at what is “Criminal Activity”? Under the Texas Code of Criminal Procedure, Art. 3.01 says "all words, phrases and terms used in this Code are to be taken and understood in their usual acceptation in common language, except where specially defined." And Criminal Activity is not defined. So… Acts that are criminal, meaning illegal acts, such as Possession of Marijuana, POCS, Possessing stolen items, and even perhaps a ticket for Possession of Drug Paraphrenalia (PDP). Since possessing those items are technically illegal, having a gun while possessing something illegal, is.. well.. illegal under 46.02(a-1)(2)(A).
Sections (a-3), (a-4), (a-5) deal with definitions and knives, and we won't be discussing them here.
Displaying the Firearm in Public- 46.02(a-5)
Section 46.02(a-5) deals with actually displaying the firearm outside of a holster in a public place. So, necessarily, the handgun must be in plain view to fall under this subsection. And to be illegal, it must be out of the holster. Keep in mind that holster is not defined either, but as long as it's "holstered" then a person falls under the exception per subsection
The Short Version of 46.02(a-5)
If you're in public and the gun is in a holster, you're okay. Think of it this way: Pulling out your firearm while arguing in parking lot over a parking space, vs. bending over to tie your shoes and your shirt sliding up to reveal a holstered gun. Both are in plain view, but only one is illegal.
Keep in mind, this subsection does not address the new provisions of location restrictions, meaning places you cannot take a firearm. That topic will be addressed elsewhere, and we'll link to it here once we get it ready.
Intoxicated and Firearms- 46.02(a-6)
Section 46.02(a-6) makes it illegal to be intoxicated and carry a firearm if you're not at your home, or have permission to carry the gun at another person's home or proerty. You cannot be trespassing. Likewise, there is also an exception if you're en route to your vehicle or inside a vehicle that you own or control – or again with the consent of owner.
But! What about Section (a-2), which deals with criminal activity? If you're actually intoxicated, and inside of your vehicle, beware of a possible DWI and UCW combo if you're operating the vehicle. Best tip here would be to keep the car off and the key out of the ignition, just to be safe (if you're sleeping in your car after drinking, with a firearm).
Previous Conviction for UCW - 46.02(a-7)
Section 46.02(a-7) makes it illegal to carry a handgun if a person has been convicted of a previous Unlawful Carrying Weapon offense. This section contains three subsections, and all of them must be true to be in violation.
Specifically, (1) Carrying a handgun (with required mental state) + (2) in Public Place + outside of your home (or on way to vehicle/boat) + prior final conviction for Section 46.04(a), (b), or (c).
Section (a-8) – Multiple Offenses
This mainly deals with also being charged with another similar offense and interacts with double jeopardy laws, and which offenses a person can be charged with from same conduct.
What are the Punishments for Unlawful Carrying a Weapon?
UCW is a Class A Misdemeanor, which means probation, or jail up to 365 days, or a fine up to $4,000, or a combination of those. In Travis County, a person charged with Unlawful Carrying a Weapon can expect an uphill battle in trying to get the weapon back, even if it was otherwise legal (aside from the UCW).
| Level of Offense | Punishment |
|---|---|
| Class C Misdemeanor | Not Applicable |
| Class B Misdemeanor | Not Applicable |
| Class A Misdemeanor | Not more than 1 year in a county jail, and/or no more than $4,000 fines |
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