“Constitutional Carry”: The Nuts and Bolts

CRIMINAL COURT NEWS

BY DAN DWORIN

One of the most controversial of the Texas Legislature’s criminal-justice related bills that became law on Sept. 1, 2021 was the adoption of the so-called “Constitutional Carry” bill. The bill amends several sections of the Texas Penal Code and other statutes that regulate the carrying of handguns, specifically governing the carrying of a handgun by a person who is 21 years of age or older and not otherwise prohibited by state or federal law from possessing the firearm, and other provisions related to the carrying, possessing, transporting, or storing of a firearm or other weapon.

For the most part, what used to be a general prohibition on carrying a handgun unless certain exceptions were met has changed into a blanket permission, with no licensing required, absent certain exceptions, to carry a holstered handgun. Texans can now, as before the bill, carry handguns openly or concealed in public, most state office buildings, and private businesses that do not prohibit handguns, but now do not have to obtain a permit. The state had already allowed the carrying of a long gun without a permit. Texas House Bill 1927 makes it a crime to openly carry a holstered handgun only if:

• A person is prohibited from possessing a weapon based on a prior felony or family-violence conviction;

• A person is intoxicated;

• A person is carrying in certain places in which firearm possession is still restricted (hospitals, jails, courts, bars, schools, etc.);

• A person is in the course of committing an offense other than a Class C traffic offense;

• A person is a member of a criminal gang; or

• A person is younger than 21 years old.

Law enforcement officers are given the authority to temporarily disarm a person during the course of an investigation, so long as they return the firearm to the suspect after determining that a crime was not committed by that person and that the person does not pose a threat to another.

The prohibition that firearms not be openly displayed in a vehicle has been repealed; it is no longer illegal to openly carry a firearm within a vehicle. Further,

it is not a crime to openly carry a firearm in view of the public so long as the weapon is holstered, and the person is not otherwise prohibited from possession of a firearm.

One check does still remain in place: a firearm purchase through a licensed gun dealer still requires a background check.

One interesting provision offers an opportunity for those convicted of Unlawfully Carrying a Weapon prior to the effective date of this legislation to have their criminal record expunged, regardless of the circumstances of the conviction. This change is a major departure from the general rule that arrests resulting in a conviction cannot be expunged.

Business establishments that want to restrict open-carry on their premises will have to use a sign or personal notification to an individual, who can then be charged with criminal trespass if they refuse to leave after receiving notification that firearm possession is prohibited.

No matter what one’s personal feeling is about the contours of gun regulation, the Texas Legislature

has directed much effort in the last couple of decades to minimize almost all checks on the purchasing and possession of firearms. One check does still remain in place: A firearm purchase through a licensed gun dealer still requires a background check. AL

Dan Dworin is a criminal defense attorney licensed in the Western District of Texas since 1997. He is board certified in criminal law by the Texas Board of Legal Specialization.