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.
Glowing Client Reviews
Trey is the man! I hired him because I had overheard a county court judge mentioning how awesome of an attorney he is, so if an endorsement from a judge won’t convince you then I’m not sure what will. I sure do hope I never find myself in a pickle ever again but if I do, I would hire Trey in a heartbeat. He’s honest, transparent, doesn’t beat around the bush, and will work tirelessly so that your clean record stays clean and unblemished. 5 stars, highly recommend!
I recently hired Trey Porter Law to help our teenage daughter with a drug charge. In the state of Texas she was being charged as an adult which carried a much stiffer penalty. Trey is very responsive, helpful, knowledgeable and is always available to answer any questions or concerns via phone, text or email. He was able to negotiate on her behalf so it was a pleasant experience. I would highly recommend Trey Porter Law.
Trey really helped me out. He was straight forward and professional, and really helped me in my case. I thought i was going to lose my job, but trey did everything in his power to help me keep my way of life, and still keeps up with me any details on my case.
I really appreciated all he did for me.
Trey is a phenomenal attorney that gets the job done right! He is dedicated to help his clients.
He made himself available and answered all my concerns immediately! I had faith in him and he continued to prove his expertise by helping me. I highly recommend Trey Porter!!
Trey Porter fought for me! I am a nurse and thought my career was over.
Very thankful I got Trey Porter involved. He responds to messages regularly and was very thorough.
He saved my career. Forever grateful!
Mr Porter is the real deal. You get what you pay for these days. I know that from my personal business dealings. Attorney Trey Porter was no different.
He was prompt, professional and poised. I was charged with DWI, and Mr Porter got the charge dismissed. I could not be more pleased or thankful. If you get a DWI, hire the best — hire Trey Porter.
WE FIGHT FOR DISMISSAL
WE FIGHT FOR DISMISSAL
DRIVING WHILE INTOXICATED .15
Driving facts involved failing to maintain a single lane and speeding. Client refused breath test and forced law enforcement to obtain search warrant for blood. Blood test result was not used after challenge from Defense, and State waived and abandoned charge.
DRIVING UNDER THE INFLUENCE
Client was a college student, worried about the collateral consequences of an alcohol offense. After negotiation and review of the traffic stop, the case was dismissed. Client received no criminal conviction. The charge was later expunged and deleted from client’s record.
DRIVING WHILE INTOXICATED .15+
Client was involved in minor accident. Client was at fault in accident. A young executive, client was concerned that a criminal conviction for DWI would result in termination. After review of the traffic stop, it was clear the officer lacked probable cause for arrest. State eventually dismissed DWI charge. Client received no criminal conviction.
Client, a military veteran, was facing up to one year in jail. State could not prove intoxication by alcohol, and was prepared to proceed on loss of use by marijuana. After challenging the State to prove that marijuana was ingested at or near time of driving, and that marijuana impaired client’s driving, the State dismissed the case on the day of trial.
DRIVING UNDER THE INFLUENCE
Driving facts involved a false claim by police that taillight was out. After challenging the reasonable suspicion for the traffic stop, the State was forced to dismiss the case when video did not match police report. Client has since expunged arrest, and has no criminal record.
DRIVING UNDER THE INFLUENCE
Client is a public school teacher and faced immediate termination upon conviction. The facts of the case were bad. State was unwilling to budge in negotiation, and matter was set for trial – the last shot at avoiding a conviction and preserving client’s livelihood. State was forced to dismiss on day of trial. Client has no criminal record, and has since expunged the DWI arrest.
Contact Trey Porter Today
Request a free consultation
The stakes are high. Criminal charges can have devastating, lifelong consequences. During the free, confidential consultation, Mr. Porter will answer questions surrounding your legal matter, and discuss and identify potential defenses.
If you have been arrested and charged with a crime, the State is working on your conviction. It’s time to start building your defense.