This page was written, edited, reviewed & approved by Brian LaVine following our comprehensive editorial guidelines. Brian LaVine the Founding Partner, 10+ years of legal experience as criminal defense attorney.
Unlawful carry means a legal gun owner carries a weapon in the wrong place or manner. Illegal possession means a person cannot legally own any firearm at all. Texas has over 1.7 million active License to Carry holders. Gun-related arrests have risen in recent years, according to Texas Department of Public Safety data. Many Texans break the law without knowing it because gun laws are complex. At LaVine Law Firm, we defend clients against all types of firearm charges in Houston. This guide explains both offenses and your defense options.
Texas gun laws changed in 2021 with the enactment of permitless carry. The state no longer requires a license to carry a handgun. Adults 21 and older can now carry handguns in most public places. However, strict rules still apply to where you can carry firearms and who may possess them. Understanding unlawful carry vs possession of a firearm in Texas, what's the difference is crucial because breaking these rules leads to serious criminal charges.
State and federal laws both control firearm possession in Texas. Federal law sets the baseline rules that all states must follow. The ATF maintains a list of prohibited persons who cannot own guns anywhere in the country. Federal gun laws override Texas law in certain cases.
A person can face charges under state law, federal law, or both. For example, a felon with a gun violates both the Texas Penal Code and federal statutes. Federal penalties often exceed state penalties for the same offense. LaVine Law Firm handles both state and federal firearm cases in Houston courts.
Texas no longer requires people to get a handgun license for basic carry rights. However, a License to Carry (LTC) still offers benefits to gun owners. LTC holders can carry in some places where unlicensed people cannot. They also face fewer hurdles when buying firearms.
To get an LTC, you must:
An LTC does not override all restrictions. License holders still cannot carry in certain restricted areas.
Unlawful carrying happens when a legal gun owner carries a weapon in a prohibited way. Texas Penal Code Section 46.02 covers this offense. The law addresses where and how a person may carry a firearm. Even lawful gun owners can face unlawful carry charges.
Prohibited locations include:
Unlawful carry is usually a Class A misdemeanor. Penalties include up to one year in county jail and fines up to $4,000. Carrying in certain places raises the charge to a third-degree felony. LaVine Law Firm builds a strong defense for clients facing these charges.
Illegal possession differs from unlawful carry in one key way. This charge applies to who can legally own a firearm. It does not matter where the person possesses the weapon. Some people cannot legally possess any firearm under Texas law.
Texas Penal Code Section 46.04 lists the prohibited categories. A person commits this offense by possessing firearms when they fall into a banned group. The charge is typically a third-degree felony, with a prison term of 2 to 10 years.
Felony convictions strip away gun rights in Texas. A person with prior felony convictions cannot possess a firearm for five years. This waiting period starts after they complete their sentence, including community supervision. The restriction applies to all firearms, not just handguns.
After five years, Texas law allows limited possession. A person may possess a firearm only at their home. They cannot carry guns outside their residence. Federal law is stricter. Under federal law (18 U.S.C. § 922), most felons face a lifetime ban on possessing firearms. LaVine Law Firm helps clients understand their rights and explore restoration options.
Family violence convictions create serious firearm restrictions. Even a misdemeanor conviction for family violence bars gun ownership. The federal Lautenberg Amendment makes this a nationwide ban. This applies regardless of state law.
An active protective order or emergency protection order also prohibits firearm possession. A magistrate's order related to family violence triggers the same restriction. Even dismissed charges with deferred adjudication may apply in certain cases. Violating these restrictions can result in additional criminal charges and harsh penalties.
Understanding the difference between these offenses matters for gun owners. The charges have different elements and carry different penalties.
| Factor | Unlawful Carry | Illegal Possession |
|---|---|---|
| Who it applies to | Legal gun owners | Prohibited persons |
| Core issue | Wrong place or manner | Cannot possess any firearm |
| Typical charge level | Class A misdemeanor | Third-degree felony |
| Maximum jail time | 1 year in county jail | 10 years in prison |
| Maximum fine | $4,000 | $10,000 |
Generally speaking, illegal possession is the more serious charge. It carries felony penalties in most circumstances. Unlawful carry begins as a misdemeanor but can escalate to a degree felony in certain cases. Both charges can overlap when a prohibited person carries in a restricted area. LaVine Law Firm examines every detail to build the best defense for your case.
Texas law bans firearms in many locations. Carrying in these restricted areas counts as unlawful carry. Penalties vary by location type. Some places carry stiffer penalties than others.
Private property owners can also ban guns from their premises. They must post proper signage in accordance with the Texas Government Code. A 30.06 sign prohibits concealed carry. A 30.07 sign prohibits open carry with a belt holster or shoulder holster.
College campuses have different rules for firearms. Public universities allow concealed carry in most buildings. However, schools can designate gun-free zones within the campus. Private colleges can ban all firearms on their property.
Government buildings prohibit firearms in most cases:
Carrying a deadly weapon past security at an airport is a felony charge. Carrying in other government buildings is usually a Class A misdemeanor. LaVine Law Firm has defended many clients against campus-related gun charges.
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Gun charges in Texas carry stiff penalties. The punishment depends on the specific offense and your criminal history.
Unlawful carry penalties:
Illegal possession penalties:
A criminal conviction also brings collateral damage. You may lose your handgun license or License to Carry. A felony conviction strips your Second Amendment rights to own firearms. Prior felony convictions increase your sentence range. These consequences make legal representation critical from the start. LaVine Law Firm has a track record of reduced charges and dismissals.
Several defenses can beat firearm charges in Texas. The right defense depends on your circumstances and the prosecution's evidence.
Common defense strategies include:
We investigate every aspect of your case. This includes police procedures and how they found the weapon. Fourth Amendment violations can result in evidence being suppressed. LaVine Law Firm challenges weak prosecution evidence at every step. Our aggressive approach gives clients the best chance at a favorable outcome.
Federal law creates additional barriers for Texas gun owners. The federal prohibited persons list under 18 U.S.C. § 922 bans certain people from owning firearms. This list includes felons, drug users, and people with certain mental health issues.
Federal law overrides Texas's permitless carry in many situations. A person banned under federal law commits a crime even if Texas law would allow them to carry. Federal penalties reach up to 10 years in prison for illegal possession.
Dual sovereignty means you can face both state and federal charges. The federal background check system (NICS) screens gun buyers for prohibited status. A controlled substance conviction or other disqualifying factors show up in this system. LaVine Law Firm has experience defending clients in federal firearms cases.
Can I carry a gun in Texas without a license?
Yes. Texas allows permitless carry for eligible adults 21 and older, but unlicensed carry still has restrictions, including an age limit, prohibited locations, and persons such as those in criminal street gangs.
What happens if a felon is caught with a firearm in Texas?
Felons face unlawful possession charges, often classified as a third-degree felony, with penalties that include prison time and fines. Possession of firearms by criminal street gang members incurs serious consequences under state and federal law.
Can I get my gun rights back after a felony conviction in Texas?
After five years, limited possession at home is allowed. However, federal law may still restrict rights. Restrictions also apply for those convicted of family violence or involved with criminal street gangs.
Is open carry legal everywhere in Texas?
No. Open carry is banned in many places, including schools, bars, airports, and where signs prohibit weapons. Carrying other weapons or firearms in plain view can lead to charges.
What's the penalty for unlawful carry of a firearm in Texas?
Unlawful carry, including unlicensed carry, is usually a Class A misdemeanor. Enhanced penalties apply to carrying in restricted zones or while committing criminal activity, resulting in a third-degree felony.
How can LaVine Law Firm help with my gun charges?
We defend against unlawful possession and unlicensed carry charges, including cases involving other weapons. We challenge evidence such as plain-view seizures and protect your rights regardless of age or criminal history.
Firearm charges in Texas carry serious consequences. A conviction means jail time, heavy fines, and loss of your gun rights. State and federal gun laws create a maze of rules that confuse many people. You need an attorney who can navigate both systems.
LaVine Law Firm defends clients against all types of weapon crimes in Houston and Harris County. We have secured dismissed cases and reduced charges for many clients. Our law office offers a free consultation to review your case. We are available 24/7 for urgent matters.
Do not wait to get legal help after an arrest. Contact LaVine Law Firm today. We will protect your rights and fight for the best outcome in your case.
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