In Texas, open carry laws allow people to visibly carry firearms in public under certain conditions. However, when individuals violate these laws, they may be subject to various penalties and collateral consequences.
If you are charged with violating an open carry law in Texas, you need to have a skilled Weatherford criminal defense attorney on your side as quickly as possible. Your lawyer can review the allegations against you, formulate a legal defense to your charge, and chart a plan of action for your case. Throughout the process, your attorney will do everything possible to safeguard your rights and pursue the best possible result in your case.
Types of Open Carry Laws in Texas and Potential Violations
Open carry laws in Texas have specific guidelines and vary in some aspects, such as the types of firearms you can carry and where you can carry them. Some of the most common types of open carry laws in Texas include:
- Handgun Open Carry – Texans with a valid License to Carry (LTC) can openly carry a handgun in a shoulder or belt holster. This law came into effect in January 2016, allowing those with an LTC to carry handguns openly – not just concealed.
- Constitutional Carry – As of September 2021, Texas law permits individuals aged 21 and over to carry handguns openly or concealed without a license, provided that state or federal law does not prohibit them from possessing a firearm. This is known as “permitless carry” or “constitutional carry.”
- Long Gun Open Carry – Texas has long allowed the open carry of long guns (rifles and shotguns) without a license. There are no specific restrictions on how these firearms must be carried, but the general public’s safety must be considered.
- Places Where Carrying is Prohibited – Despite the open carry laws, many places still prohibit carrying a firearm. These include schools, polling places, courts, racetracks, secure areas of airports, and businesses that post specific signs prohibiting guns on their premises.
Common types of open carry violations in Texas include:
- Carrying in Prohibited Areas – One of the most frequent violations involves carrying firearms in areas where they are explicitly banned. For instance, bringing a handgun into a school or a government building where firearms are prohibited can lead to serious legal consequences.
- Failing to Properly Holster a Handgun – Under Texas law, handguns carried openly must be in a shoulder or belt holster. Failing to comply with this requirement can result in a violation – even if the person has a license to carry.
- Unlawful Possession – Even with constitutional carry, certain individuals are prohibited from carrying firearms. This includes convicted felons, people with certain restraining orders, and individuals who are under 21 years of age. Carrying a firearm in violation of these restrictions is illegal.
- Ignoring Posted Signs – Businesses and private property owners in Texas can post signs prohibiting firearms on their premises. Ignoring these signs and carrying a firearm into such places is a common violation.
Understanding and adhering to these laws is crucial for anyone wishing to carry a firearm in Texas. Violations can lead to fines, imprisonment, and loss of the right to carry firearms.
What Happens if You Violate a Texas Open Carry Law?
Violating open carry laws in Texas can lead to serious penalties and collateral consequences. These repercussions can affect a person’s criminal record, financial situation, and future opportunities. Here’s a detailed look at the potential penalties and collateral consequences upon conviction:
Potential Penalties:
- Fines – Many violations of open carry laws result in fines. For example, carrying a firearm in a prohibited place, such as a school or government building, can lead to a significant monetary penalty. The amount can vary based upon the specific law broken and the circumstances of the violation.
- Jail or Prison Time – More severe violations can result in jail or prison sentences. For instance, carrying a firearm without a proper holster or in a place where it is explicitly banned can lead to misdemeanor or even felony charges, depending on the severity of the offense. A felony conviction can result in a prison sentence of several years.
- Community Service and Probation – Some violations may result in community service hours or probation instead of – or in addition to – jail time. Probation usually comes with strict conditions that must be met to avoid further penalties, such as regular check-ins with a probation officer and restrictions on travel.
Collateral Consequences:
- Criminal Record—A conviction for violating open carry laws will go on a person’s criminal record. Employers, landlords, and licensing agencies can access this record, potentially making it difficult to find a job, rent an apartment, or obtain certain professional licenses.
- Loss of Firearm Rights – A felony conviction or certain misdemeanor convictions can result in losing one’s right to own or carry firearms. This restriction can be permanent or last for a significant period, severely affecting someone who values their Second Amendment rights.
- Effect on Employment – Many employers conduct background checks, and a criminal record can be a major barrier to employment. Jobs that require handling money, working with vulnerable populations, or holding a position of trust are particularly unlikely to hire someone with a firearm-related conviction.
- Social and Family Consequences – A conviction can strain relationships with family and friends. It can also lead to social stigma, affecting how others view and interact with the person.
A skilled criminal defense attorney in Texas will do everything they can to lessen or eliminate the penalties and collateral consequences you face for an alleged open carry violation.
Potential Defenses to Violating a Texas Open Carry Law
When someone is accused of violating an open carry law in Texas, several potential legal defenses can challenge the charge. These defenses can show that the accused either did not break the law or had a valid reason for their actions. Here are some common defenses:
- Lack of Knowledge—One defense is that the person was unaware that they were in a prohibited area. For instance, if someone unknowingly carried a firearm into a building with signage prohibiting them, they may argue that they didn’t see the signs and had no intention of breaking the law.
- No Intent to Violate the Law – Another defense is that the person did not intend to violate the law. If the firearm was accidentally exposed due to a malfunctioning holster or a wardrobe malfunction, the accused may argue that they had no intention to carry it openly.
- Proper Holstering – If the charge is about the manner of carrying the firearm, the defense can show that the handgun was properly holstered. This may involve providing evidence like photographs or witness testimony to prove that the firearm was in a shoulder or belt holster.
- Constitutional Rights – In some cases, the defense might argue that the law itself is unconstitutional. This more complex defense challenges whether the law violates Second Amendment rights. However, it requires substantial legal argument and is typically pursued in higher courts.
- Self-Defense – If the firearm was used or displayed in self-defense, the accused may argue that their actions were justified to protect themselves or others. Texas law generally supports the right to self-defense, which can be a strong defense if evidence supports the claim.
- Law Enforcement Exceptions – Certain individuals, like off-duty law enforcement officers, may have specific rights and exceptions under the law. If the accused falls into such a category, their defense can involve proving their status and the applicable legal exceptions.
- Mistake of Fact – If the accused had a reasonable belief that they were not breaking the law due to a mistake of fact – such as carrying on property they believed was not restricted – this can serve as a valid legal defense. For instance, if they were incorrectly informed that firearms were allowed in a particular place, they may argue that they acted on incorrect information.
Each defense will depend on the case, including the location, circumstances, and the individual’s intentions. An experienced Texas criminal defense attorney can identify the best defense strategy based on the unique details of the situation.
Pros and Cons of Accepting a Plea Deal in a Texas Open Carry Violation Case
When facing charges for violating open carry laws in Texas, accepting a plea deal is an option that has both advantages and disadvantages. Here’s a balanced look at the pros and cons of taking a plea deal in such cases.
Pros:
- Reduced Sentences – One of the main benefits of a plea deal is the potential for a lighter sentence. Prosecutors often offer reduced penalties in exchange for a guilty plea, which can mean less jail time, lower fines, or both.
- Quicker Resolution – Plea deals can expedite the legal process, avoiding the lengthy duration of a trial. This allows the accused to resolve the matter faster and move on with their life, rather than spending months or even years dealing with court proceedings.
- Certainty of Outcome – Trials can be unpredictable, and there’s always a risk of a harsher sentence if the case goes to court. A plea deal provides a known outcome, giving the accused a clear understanding of the consequences they will face.
- Less Publicity – Trials can attract public attention, potentially damaging one’s reputation. Accepting a plea deal often results in less media coverage and public scrutiny, preserving the individual’s privacy to some extent.
Cons:
- Admission of Guilt – Accepting a plea deal usually involves pleading guilty to a charge. This admission goes on the person’s criminal record, which can have long-term effects on their employment, housing, and overall reputation.
- Loss of Rights – A guilty plea may lead to the loss of certain rights, such as the right to own or carry firearms.
- No Chance for Acquittal – By accepting a plea deal, the accused forfeits the opportunity to be found not guilty at trial. If they believe they are innocent or that the prosecution’s case is weak, a plea deal may deprive them of the chance to clear their name entirely.
- Potential for a Better Deal – In some cases, defendants can get a better deal by negotiating further or by going to trial. Accepting the first plea deal offered may mean missing out on more favorable, obtainable terms with more negotiation or legal strategy.
Deciding whether to accept a plea deal in a Texas open carry violation case requires careful consideration of both the immediate benefits and the long-term consequences. Hiring a criminal defense attorney in Texas can help with making an informed decision that aligns with the individual’s best interests.
Taking an Open Carry Violation Case to Court in Texas
Taking an open carry violation case to trial in Texas involves several steps and court proceedings. This choice means that the accused is opting to fight the charges instead of accepting a plea deal. Here’s an overview of what happens during the trial process.
Pre-Trial Phase:
- Arraignment – The first court appearance is called an arraignment, where the accused hears the charges against them and enters a plea of guilty, not guilty, or no contest.
- Discovery – Both the defense and prosecution gather evidence, interview witnesses, and build their cases. This process is known as discovery. The defense attorney may file motions to dismiss evidence they believe was improperly obtained or challenge the charges' legality.
- Pre-Trial Motions—These requests ask the court to decide on certain legal issues before the trial begins. Common motions may involve suppressing evidence or dismissing charges altogether.
Trial Phase:
- Jury Selection – If the case goes to a jury trial, the first step is selecting a jury. Both the defense and prosecution question potential jurors to ensure that a fair and unbiased jury is chosen.
- Opening Statements – Both sides present their opening statements, outlining the evidence they plan to present and their arguments. The prosecution goes first, followed by the defense.
- Presentation of Evidence – The prosecution presents its case, calls witnesses, and introduces evidence. The defense can cross-examine these witnesses. After the prosecution rests, the defense presents its case, calling its own witnesses and introducing evidence, with the prosecution having the opportunity to cross-examine.
- Closing Arguments – After all evidence is presented, both sides give their closing arguments, summarizing their cases and attempting to persuade the jury one way or the other.
- Jury Deliberation and Verdict – The jury deliberates in private, discussing the evidence and trying to reach a unanimous verdict. If the jury cannot agree, the judge may declare a mistrial, and the case may be retried. If the jury reaches a verdict, they return to the courtroom to announce it.
Post-Trial Phase:
- Sentencing – If the jury finds the accused guilty, the judge will determine the appropriate sentence, which may include fines, jail time, probation, or other penalties.
- Appeals – The defense may appeal the verdict if they believe legal errors affected the trial’s outcome. An appeal goes to a higher court for review.
Choosing to go to trial is a significant decision that involves weighing the risks and potential rewards. It requires a strong defense strategy and thorough preparation, to achieve the best possible outcome for the accused.
Contact a Skilled Criminal Defense Lawyer in Texas Right Away
If you are charged with violating an open carry law in Texas, you need to contact a skilled criminal defense attorney as soon as possible. Your lawyer will evaluate your circumstances, determine your options, and take the appropriate legal steps on your behalf.
About The Author:
Brandon Fulgham has an in-depth understanding of both Texas law and Texans themselves. Before practicing law here, he received his undergraduate degree from TCU and his law degree from South Texas College of Law in Houston. After graduation, he worked in District Attorneys’ offices as a prosecutor. Now, he uses that knowledge to anticipate opposing counsel’s arguments and protect the rights of people in and around Fort Worth. His work has been recognized by Expertise (Best Criminal Defense Lawyers in Forth Worth and Best DUI Lawyers in Fort Worth, both 2020), Fort Worth Magazine, and The National Trial Lawyers, just to name a few.
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