On September 1, 2021, the new Constitutional carry law went into effect in Texas. The Stornello Law Firm received numerous calls with questions about the new law and the changes it makes. I hope this post answers some of those questions.
Texas Open Carry Law and Concealed Carry Law
The Texas Constitution Article 1, § 23 protects the right to bear arms for legal self-defense, it also gives the state the power to regulate carrying guns in order to prevent crime. The state has no laws that restrict carrying rifles and shotguns, other than general gun prohibitions for a few people (including recent felons) and at a few places (such as K-12 schools).
As of September 1, 2021, Texas no longer requires a license to carry a handgun for anyone 21 or older.
Carrying or Displaying a Handgun in Texas
Although Texas still issues licenses to carry a handgun, you no longer need a permit to carry a handgun in most places, unless you are younger than 21 or can't legally have any gun.
However, it is still a crime in Texas to display a handgun on purpose in a public place, in another person's plain view, unless the gun is holstered. It's also illegal to carry a handgun under the following circumstances:
- if you've been convicted of a certain type of violent crime within the past five years
- if you are legally prohibited from possessing any firearm (as discussed below)
- if you're intoxicated and aren't on your property, in your car or boat, or directly en route to your car or boat (or the private property, car, or boat or someone else who has given you consent to be there); or
- in certain places where guns are restricted (more on that below).
(Tex. Penal Code §§ 46.02 (2021).)
Can You Open Carry in Texas?
As mentioned above, you can only open carry if your gun is in a holster. Otherwise, it will need to be concealed. What this law did change is the requirement to have a license to carry.
Texas and Federal Restrictions on Gun Possession
Under Texas law, it’s illegal to possess a gun if you have been convicted of a felony or any domestic violence crime, but only for a five-year period after release from incarceration. However, Federal prohibitions on gun purchases and possession apply to a broader group of people than Texas restrictions.
Including those who:
- have been convicted of a felony (any crime with a potential punishment of more than one year in prison) or a domestic violence misdemeanor, regardless of the release date from incarceration
- are subject to a domestic violence restraining order, protective order, or emergency protective order (issued after notice and a hearing)
- are in the country illegally or under a nonimmigrant visa
- have been dishonorably discharged from the military
- have fled to avoid arrest or punishment for a crime, or
- use controlled drugs illegally.
(Tex. Penal Code § 46.04, 18 U.S.C. § 922(g) (2021).)
Can I Carry a Gun in My Car?
You are able to transport a handgun in the vehicle as long as the vehicle is under your control. The person must either be 21 years or older or have a License to Carry if the handgun is in plain view. The gun also must be in a holster.
Places in Texas Where It's Illegal to Carry a Gun
It's a weapon crime to have any guns in certain Texas locations, including:
- schools, school buses, and anywhere school activities are taking place (but see special rules for handguns at colleges and universities, discussed below)
- wherever sporting events are being held (whether professional, school, or interscholastic)
- at businesses that get more than half of their income from the on-premises sale of alcohol
- at hospitals and nursing homes
- at polling places during elections or early voting
- in court buildings or offices, and
- at racetracks.
Violations are either a third-degree felony or a Class A misdemeanor, depending on the location. (Tex. Penal Code § 46.03 (2021).)
Special Texas Rules for Handguns on College Campuses
Texas law specifically allows license holders to carry concealed handguns on post-secondary school campuses, except on portions of the campuses of private institutions that have established rules prohibiting concealed handguns in certain areas, as long as the schools have posted proper notices about the prohibition.
It's also a crime for a license holder to carry a handgun openly (even in a holster) on the premises of any institution of higher education that has prohibited open carry and has posted proper notices. (Tex. Penal Code § 46.03 (2021).)
Can Guns be Banned on Private Property?
Private property owners such as restaurants and businesses can still prohibit the carrying of firearms on the property if they choose.
If property owners want to ban guns, they must give proper "notice" to people at the property. This notice can be given orally (by speaking to visitors) or by using written communication. If property owners use written communication, they must follow specific instructions that are set out in the law.
Because of the way the law is written, it is a "defense to prosecution" under Section 30.05 if the person who is charged with a crime was carrying a handgun with a license to carry and certain other criteria were met. It's possible that a private property owner would need to post multiple signs in order to ban both unlicensed carry and licensed carry. Property owners should consult an attorney for advice on the proper signage for their situation.
Signs to Ban the Carry of Handguns by People With a License
Sections 30.06 and 30.07 of the Texas Penal Code allow property owners to use signs to prohibit people with a license to carry from carrying a handgun on the property.
- 30.06 Signs ban people who have a license to carry from carrying a concealed handgun on the property
- 30.07 Signs ban people who have a license to carry from carrying a handgun openly on the property
Property owners should consult an attorney for advice on the proper signage for their situation.
These statutes set out the offense of trespassing with an openly carried or concealed firearm for those who have "received notice" that firearms are prohibited on the property. These statutes also set out signage requirements for property owners who wish to restrict the carry of firearms on their property.