These days, there are not many requirements for a person to carry a gun legally in their car in Texas.
It takes a little more effort to drive a car legally, but if a person has a driver’s license, is over 21, and isn’t disqualified from carrying a gun for some other reason, then they’ll just need to keep the gun in a holster if it is in open view while on their way to or in their car.
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Looking at Texas Penal Code 46.02, all of that is true unless the person is in the act of committing another crime – like driving while intoxicated or possessing a little bit of marijuana. In the circumstance of committing a crime, they are then committing a second crime as the possession of the gun also becomes illegal even if the gun is locked away in a console, had no part in the incident other than existing, and was legal in every other way.
It is common, then, that a situation will arise where someone will smell like alcohol – maybe they’re a bartender and spilled some drinks on themselves during a work shift or maybe they even had a drink – and be on the way home when they are pulled over for a traffic violation. The officer then claims probable cause since they smell alcohol and has the person get out of the car and complete field sobriety tests. I have yet to hear of an officer tell someone they passed those tests and then let them get on down the road.
After the officer places the person under arrest, they search the car and find a gun stowed in the glove box or a purse. Or the officer will ask if the person has a gun or other weapon, the person will tell them they do have a gun in the car, and now the officer knows that if they make an arrest for DWI or marijuana possession, they have a second charge they can add. Facing two charges, the person will likely have a higher bail, increased fees from a defense attorney, and a lot of other costs financially, socially and professionally regardless of whether they are ever convicted of anything.
In Austin, Texas recently, for instance, the Texas Department of Public Safety supplemented the local police traffic enforcement efforts because of a shortage of officers in Austin’s police department. Austin has a policy that it does not make arrests for small amounts of marijuana possession. But DPS doesn’t see things the same way so not only did they make arrests for small amounts of marijuana, they added gun charges and then reported to public officials and critics of the low-level marijuana arrests that they have reduced gun crime in Austin.
In a state where the Governor implores Texans to buy more guns so that the state doesn’t fall behind California in new gun purchases, it may be surprising that having a gun while committing any violation of the law that is greater than a Class C Misdemeanor or traffic ordinance violation will result in a person being charged for unlawfully carrying a weapon. A guy can drive around all day with a gun holstered to both hips until he pockets a couple marijuana gummies a friend gave him and then he is suddenly unlawfully carrying weapons.
We recently worked with a client whose spouse insisted she start carrying a gun in her car for safety. One afternoon, she went to happy hour with a couple of friends then headed home. When she was pulled over and smelled of alcohol, she was not only charged with DWI, but also with unlawfully carrying a weapon which may not have been illegal depending upon how her blood alcohol test and other factors turned out. It had not even crossed her mind that the gun was in the car that day, but the presence of the weapon made her bad day worse.
Many people in Texas carry guns in their vehicles, but it is likely that few know how easily they can be charged with carrying it illegally.
This article by David Holmes was first published on AALM on Jan. 5, 2024.
About the author
David Holmes started his first career in the Texas Legislature in Lt. Governor Bob Bullock’s office where he worked for over a decade. He took a detour from public service and worked in the local music industry for several years on band management and music licensing. After working in the vicinity of the law at the capitol and as a mediator for so many years, he decided to go to law school. David joined Deandra Grant Law in 2022. He is based in the Austin office and handles criminal matters in Travis, Hays, Williamson and surrounding counties. (512) 279.6600; DeandraGrantLaw.com.
