Unintentional Exposure of a Concealed Handgun Under Texas Law

[Bartholomew Roberts]

In a couple of different posts, I have seen people state the belief that accidentally allowing your CHL to be exposed is against the law in Texas. I wanted to take a brief second to go over the actual Texas laws on this subject so that gun owners have a better understanding of these issues.

Under Texas law, there are two statutes under which a person may carry a concealed handgun. The most commonly known statute is those people who are licensed to carry a concealed handgun under Subchapter H, Chapter 411 of the Government Code (Texas CHLs). This process is more costly and requires more paperwork; but offers many advantages over the other statute.

The unlawful carry of a handgun by a CHL is governed by Section 46.035 of the Texas Penal Code:

Sec. 46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER. (a) A license holder commits an offense if the license holder carries a handgun on or about the license holder's person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally fails to conceal the handgun... (text omitted)...
(h) It is a defense to prosecution under Subsection (a) that the actor, at the time of the commission of the offense, displayed the handgun under circumstances in which the actor would have been justified in the use of deadly force under Chapter 9.

So right away, you have two big advantages. First, the failure to conceal the handgun must be intentional. So in order for you to be arrested for this offense, the officer must believe and ideally, have some evidence, that you intentionally failed to conceal the handgun. In order to be convicted, that must be proved beyong a reasonable doubt.

The second big advantage, is that even if you do display your concealed handgun intentionally, you can avoid conviction if you would have been justified in using deadly force under Section 9 of the Penal Code.

The second way you can carry concealed in Texas is without a CHL. The wording of Section 46.02 of the Texas Penal Code actually REQUIRES an unlicensed person to conceal a handgun when relying on the travelling law to carry a handgun in a vehicle (or from your premises to the vehicle). I have bolded the relevant sections of the law.

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.
(a-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; or
(2) the person is:
(A) engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic or boating;
(B) prohibited by law from possessing a firearm; or
(C) a member of a criminal street gang, as defined by Section 71.01.
(a-2) For purposes of this section, "premises" includes real property and a recreational vehicle that is being used as living quarters, regardless of whether that use is temporary or permanent. In this subsection, "recreational vehicle" means a motor vehicle primarily designed as temporary living quarters or a vehicle that contains temporary living quarters and is designed to be towed by a motor vehicle. The term includes a travel trailer, camping trailer, truck camper, motor home, and horse trailer with living quarters.
(a-3) For purposes of this section, "watercraft" means any boat, motorboat, vessel, or personal watercraft, other than a seaplane on water, used or capable of being used for transportation on water.
(b) Except as provided by Subsection (c), an offense under this section is a Class A misdemeanor.
(c) An offense under this section is a felony of the third degree if the offense is committed on any premises licensed or issued a permit by this state for the sale of alcoholic beverages.

As you can see, if you intend to use the Texas travelling law to carry a handgun in your motor vehicle or watercraft, then the handgun MUST NOT BE IN PLAIN VIEW (i.e. it must be concealed). However, note that unlike the statute for CHLs, you can be in trouble if you intentionally, knowingly, or recklessly display your concealed handgun. One example of recklessness might be a person on a motorcycle who has a handgun in a belt holster and an untucked shirt. Although the handgun is concealed initially, the likelihood that the wind will expose it is very high. Even though the exposure is not intentional, it can be argued that the motorcyclist knew the handgun was exposed or that he was reckless about whether it was exposed or not.

As you can see, while the travelling law gives you some leeway in carrying a handgun without a Texas CHL, it also offers you less legal protections if that firearm is exposed.

 

[HarrySchell]

Thanks for the note, Bart.

 

[carguychris]

The wording of Section 46.02 of the Texas Penal Code actually REQUIRES an unlicensed person to carry a concealed handgun in certain circumstances.

Methinks you meant to write that the unlicensed person has to conceal the handgun if he or she wishes to carry it. I don't think unlicensed Texans are REQUIRED to own and carry a handgun yet, although this is TX, perhaps we just need to give the Legislature a few more years to fix that...

GREAT post otherwise, I'm just giving you grief.

 

[Bartholomew Roberts]

Methinks you meant to write that the unlicensed person has to conceal the handgun if he or she wishes to carry it. I don't think unlicensed Texans are REQUIRED to own and carry a handgun yet, although this is TX, perhaps we just need to give the Legislature a few more years to fix that...

Worth clarifying all the same just to avoid confusion . Thanks for the help!

 

[Bartholomew Roberts]

I wanted to clarify an aspect of this discussion that came up on another forum. In my original post, I stated:

The second way you can carry concealed in Texas is without a CHL. The wording of Section 46.02 of the Texas Penal Code actually REQUIRES an unlicensed person to conceal a handgun when relying on the travelling law to carry a handgun in a vehicle (or from your premises to the vehicle). I have bolded the relevant sections of the law.

This is bad wording on my part. Texas common law has what is called "travelling". Under this case law, you could carry a handgun or some other prohibited weapons if you met the definition of a traveler under Texas law. However, since "traveller" has never been defined by statute, you must rely on the definitions from existing case law, which are convuluted and sometimes contradictory - so much so that a 2005 Baylor Law Review devoted an article to the subject.

In 2007, the legislature attempted to clarify travelling exemptions for firearms; but still did not define travelling. As a result, some jurisdictions (former Prosecutor Chuck Rosenthal in Harris County being one example) stated they would continue to arrest and prosecute citizens travelling with a handgun and allow the jury to sort it out. In response, the Texas legislature drafted the language in Section 46.02 (a-1)(1) that I discussed above. Because this was an effort to clarify the travelling exception, I mistakenly referred to it as "travelling law."

Texas still has the additional common law travelling rule in addition to Section 46.02. In fact, Section 46.15 of the Texas Penal Code provides that if you meet the definition of traveller (which is still convoluted and varies from court to court), you are excepted from the requirements of Section 46.02.

For the purposes of this post, the quoted language should have read:

The second way you can carry concealed in Texas is without a CHL. The wording of Section 46.02 of the Texas Penal Code actually REQUIRES an unlicensed person to conceal a handgun when relying on Section 46.02 (a-1) to carry a handgun in a vehicle (or from your premises to the vehicle). I have bolded the relevant sections of the law.

If you would like to better educate yourself on the convoluted subject of Texas travelling exceptions to weapons laws, I recommend reading Ayesh v. State, 734 SW 2d 106, 108 (Tex: Court of Appeals, 3rd Dist. 1987), or Jack E. Skaggs article in the 2005 Baylor Law Review. Both are available online, though only the Ayesh case is available for free.

As a practical matter, I still recommend concealing the handgun from plain view if you are carrying under Section 46.02(a-1). While travelling may offer an additional defense to you, a definition that Texas courts cannot agree on doesn't offer a great deal of protection to a motorist who is dealing with an individual officer who may not be an avid reader of Baylor Law Review.