Carry Woes

or watch what you do when you carry!

A local PD picked up a guy on DWI. Turns out, the gentleman had a concealed handgun as well. So, not only is he being charged with a Class B Misdemeanor for the DWI, he is also being charged with a Class A Misdemeanor for Unlawful Carrying Weapon (a.k.a. UCW).

But Jay, I thought it was legal in the state of Texas to carry a concealed handgun in your vehicle, even without a CHL?

It is legal. The catch is, the above gentleman broke the law when he decided to get behind the wheel of his vehicle and drive. You see, Texas Penal Code 46.02 UNLAWFUL CARRYING WEAPONS states (I bolded the relevant sections):

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 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 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;

(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.

(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.

So, because the gentleman was DWI (a Class B Misdemeanor), it becomes a UCW charge. Some thing like speeding, fail to indicate turn, headlight out, etc are all Class Cs, which won’t turn into a UCW.

But, driving on a suspended license without insurance…that could easily turn into a UCW charge.

The bottom line is, keep up with your business (i.e. insurance, DL, and tags) and don’t break the law (i.e. DWI, etc), and you’ll be fine. If not, you run the added risk of a UCW charge simply because your a CHL holder and you were carrying.

5 Responses to “Carry Woes”

  1. What if the driver claimed he was ‘traveling’ to use the historic defense? Since the old traveling “nonapplicability” aka exception. doesn’t require concealment nor abstaining from any other crimes above a class C.

    When they created the new presumption of traveling exception, I don’t believe they erased the historical traveling exception.

    46.02 is UCW

    (b) Section 46.02 does not apply to a person who:
    (2) is traveling;

    I agree that it isn’t a slam dunk.

    • You could try it, but I hope you have deep pockets and get a good lawyer.

      There are a few loose ends when all the Castle Doctrine stuff got passed a few years back.

  2. Another comment…

    If the driver in question had a CHL, he would not be violating 46.02, he would be violating


    (d) A license holder commits an offense if, while intoxicated, the license holder carries a handgun under the authority of Subchapter H,
    Chapter 411, Government Code, regardless of whether the handgun is concealed.

    Either way, its a Class A.

    • The driver in question did not have a CHL, hence the UCW charge.

      Yep, punishment is the same, only addition is “by license holder”. It allows certain agencies to track license holder crimes.

  3. I’ve always heard “If your going to be dumb, you better be tough!” I’ve always thought DWI alone qualified. Drunk driving while armed. There are parts of Texas they used to just shoot you by the side of the road for that.

    (Just kidding on that last part…I think.)

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