Unlawful Firearm and Knife Possession

Texas is a proud 2nd Amendment state, but with that pride comes the responsibility of appropriate and legal gun ownership. It is perhaps because of the reputation Texas has in the gun community that it is so hard on offenses that involve firearms or other weapons. If your gun ownership rights have been restricted by law and you are caught possessing a firearm it is a serious criminal offense in Texas. Depending on the circumstances involving the possession and the arresting officer, you could be charged with either a misdemeanor or a felony.

The Texas Penal Code reads as follows:

Sec. 46.04. UNLAWFUL POSSESSION OF FIREARM. (a) A person who has been convicted of a felony commits an offense if he possesses a firearm: (1) after conviction and before the fifth anniversary of the person’s release from confinement following conviction of the felony or the person’s release from supervision under community supervision, parole, or mandatory supervision, whichever date is later; or (2) after the period described by Subdivision (1), at any location other than the premises at which the person lives. (b) A person who has been convicted of an offense under Section 22.01, punishable as a Class A misdemeanor and involving a member of the person’s family or household, commits an offense if the person possesses a firearm before the fifth anniversary of the later of: (1) the date of the person’s release from confinement following conviction of the misdemeanor; or (2) the date of the person’s release from community supervision following conviction of the misdemeanor. (c) A person, other than a peace officer, as defined by Section 1.07, actively engaged in employment as a sworn, full-time paid employee of a state agency or political subdivision, who is subject to an order issued under Section 6.504 or Chapter 85, Family Code, under Article 17.292 or Chapter 7A, Code of Criminal Procedure, or by another jurisdiction as provided by Chapter 88, Family Code, commits an offense if the person possesses a firearm after receiving notice of the order and before expiration of the order. (e) An offense under Subsection (a) is a felony of the third degree. An offense under Subsection (b) or (c) is a Class A misdemeanor.

Effective September 1, 2013, it is now legal to own and carry an automatic switchblade knife in Texas. However, there are many caveats that the law still has not addressed.

First, the definition of an Illegal Knife in Texas Penal Code Sec. 46.01(6)(C) still includes “dagger, including but not limited to dirk, stiletto and poniard.” That has not changed. None of these type knives, dagger, etc., are defined in Texas law, but based on case law generally you should assume that a “dagger” covers any double-edged blade. This would include automatic knives with double-edged blades.

Some have suggested that you might make a case for the position that when the legislature repealed the ban on switchblades, that repeal covers any automatic knife, regardless of blade style. That is referred to technically as a “presumptive repeal” defense. However, unless you want to be a test case, spend thousands and thousands of dollars and possibly still end up in jail if you lose, that could be a very risky position to take. We do not recommend testing the law by carrying a double-edged knife.

It is also noted that Section 46.15(b)(1) provides an exception to possession of an illegal knife if a person is on his or her own premises. There is also Texas case law with regards to firearms that supports the notion that a person who purchased a firearm that they would have been illegal to carry, is allowed to transport that firearm from the place of purchase directly to their premises, otherwise part of the Castle Doctrine. It would seem that this case law would support that same argument regarding an otherwise illegal knife, but this has not ever been tested in court. It certainly would be unlikely to succeed if you were found to not have transported it DIRECTLY home.

There is also an exception for use if you are “engaging in lawful hunting, fishing, or other sporting activity on the immediate premises where the activity is conducted, or is en route between the premises and the actor’s residence, if the weapon is a type commonly used in the activity.” Note the last part of that exception. You might find it a challenge in court supporting the contention that the otherwise illegal knife was “commonly used in the activity.”

As you can see from the statute, these are serious offenses with significant jail time and fines associated with illegal weapons charges. Finding a criminal attorney in Sugar Land or Harris County that understands how to negotiate weapons charges on your behalf to mitigate the circumstances of the arrest, including suppressing evidence by questioning the police procedure and invoking your rights is vital at a time like this. You want a seasoned Fort Bend defense lawyer on the case because there may be no other way to steer you out of a criminal record aside from a jury trial. The modern legal system is so much more convoluted and rigorous than it was even a decade ago that attorneys can no longer afford to be a Jack of All Trades.

When you are interviewing an attorney that will keep you out of jail you want to know that he or she will fight for you all the way. Your criminal case in Harris County or Fort Bent County, especially in a place like Houston, has to be on point and your lawyer needs to be clever, aggressive, but also patient enough to know how to lay low and wait. No one needs a lengthy criminal record nor do they need the black spot of an illegal weapons charge to show up on a background check.

Call an attorney who knows how to fight for your rights and your freedom!