Texas Penal Code 46.05 – Prohibited Weapons

WHAT IS PROHIBITED WEAPONS IN TEXAS?

The Texas law against prohibited weapons punishes possessing, manufacturing, transporting, repairing, or selling explosives, machine guns, a short-barrel firearm, zip guns, pepper spray, tire deflation devices, and armor-piercing ammunition.

• What is a zip gun? Texas Penal Code Section 46.01 defines a “zip gun” as a device or combination of devices that was not originally a firearm and is adapted to expel a projectile through a smooth-bore or rifled-bore barrel by using the energy generated by an explosion or burning substance.A zip gun is an improvised gun to expel a projectile using an explosive force. It differs from a ghost gun, which is a disassembled gun available for purchase, and does not have a serial number. Ghost gun kits are also known as “buy building shoot kits.”

WHAT IS THE PROHIBITED WEAPONS LAW IN TEXAS?

Tex. Penal Code § 46.05. PROHIBITED WEAPONS.

(a) A person commits an offense if the person intentionally or knowingly possesses, manufactures, transports, repairs, or sells:

(1) any of the following items, unless the item is registered in the National Firearms Registration and Transfer Record maintained by the Bureau of Alcohol, Tobacco, Firearms and Explosives or otherwise not subject to that registration requirement or unless the item is classified as a curio or relic by the United States Department of Justice:

(A) an explosive weapon;

(B) a machine gun; or

(C) a short-barrel firearm;

(2) armor-piercing ammunition;

(3) a chemical dispensing device;

(4) a zip gun;

(5) a tire deflation device; or

(6) an improvised explosive device.

(b) It is a defense to prosecution under this section that the actor’s conduct was incidental to the performance of official duty by the armed forces or national guard, a governmental law enforcement agency, or a correctional facility.

(d) It is an affirmative defense to prosecution under this section that the actor’s conduct:

(1) was incidental to dealing with a short-barrel firearm or tire deflation device solely as an antique or curio;

(2) was incidental to dealing with armor-piercing ammunition solely for the purpose of making the ammunition available to an organization, agency, or institution listed in Subsection (b); or

(3) was incidental to dealing with a tire deflation device solely for the purpose of making the device available to an organization, agency, or institution listed in Subsection (b).

(e) Except as otherwise provided by this subsection, an offense under this section is a felony of the third degree. An offense under Subsection (a)(5) is a state jail felony.

(f) It is a defense to prosecution under this section for the possession of a chemical dispensing device that the actor is a security officer and has received training on the use of the chemical dispensing device by a training program that is:

(1) provided by the Texas Commission on Law Enforcement; or

(2) approved for the purposes described by this subsection by the Texas Private Security Board of the Department of Public Safety.

(g) In Subsection (f), “security officer” means a commissioned security officer as defined by Section 1702.002, Occupations Code, or a noncommissioned security officer registered under Section 1702.221, Occupations Code.

WHAT IS THE PENALTY CLASS FOR PROHIBITED WEAPONS IN TEXAS?

Prohibited weapons is a state jail felony, punishable by 180 days to two years in a state jail facility, if a person possesses a tire deflation device. Prohibited weapons is otherwise a third degree felony, punishable by two to ten years in prison.

Texas Penal Code Section 46.11 increases the punishment to the next highest category if the person committed a weapons offense within 300 feet of a school, or on premises where a school function or an event sponsored by the University Scholastic League is taking place. Possessing a prohibited weapon enhanced to a second degree felony is punishable by two to 20 years in prison, and a maximum $10,000 fine.

WHAT IS THE PUNISHMENT RANGE FOR PROHIBITED WEAPONS IN TEXAS?

The punishment range for prohibited weapons depends on the penalty classification:

• State jail felony (possessing a tire deflation device):
  • 180 days to two years in a state jail facility, maximum $10,000 fine;
• Third degree felony (by default):
  • two to ten years in prison, maximum $10,000 fine;
• Second degree felony (within 300 feet of a school or school-sponsored event):
  • two to 20 years in prison, maximum $10,000 fine.

WHAT ARE THE PENALTIES FOR PROHIBITED WEAPONS IN TEXAS?

A person charged with prohibited weapons may be eligible for probation after a conviction, or deferred adjudication without a conviction. The community supervision period for a state jail felony is between two and five years, with the possibility of extending supervision for up to ten years. If charged with a second degree felony or third degree felony, the period of community supervision may not exceed ten years.

WHAT ARE THE DEFENSES TO PROHIBITED WEAPONS IN TEXAS?

The statute authorizes defenses for law enforcement, military, and security personnel who possessed or used a listed prohibited weapon in the lawful discharge of their duties. Security officers may also possess pepper spray in the course of their employment, if trained to use them.

It is an affirmative defense to prosecution under this section that the actor’s conduct: (1) was incidental to dealing with a short-barrel firearm or tire deflation device solely as an antique or curio; or (2) was incidental to dealing with armor-piercing ammunition or tire deflation devices solely for the purpose of making the ammunition or device available to law enforcement, military, or a correctional facility.

WHAT IS THE STATUTE OF PROHIBITED WEAPONS IN TEXAS?

The limitation period for prohibited weapons is three years.

PROHIBITED WEAPONS IN TEXAS

Possessing a prohibited weapon, such as short-barrel firearms, silencers, armor-piercing ammunition, explosives, zip guns, and pepper spray is a felony in Texas.

TEXAS PROHIBITED WEAPONS COURT CASES

The case law regarding prohibited weapons in Texas shows what evidence will support a conviction.

• In Krausz v. State, the defendant was stopped with a gun and a water bottle wrapped in electrical tape. Police testified at trial the water bottle with the hole in it was used as a silencer, which is a prohibited weapon. He was convicted of possessing a prohibited weapon, and the appellate court affirmed. The muzzle of the stolen gun found in the defendant’s car fit in the hole cut out of the water bottle, and was intended to be used as a silencer.