Texas Penal Code 46.13 – Making a Firearm Accessible to a Child

WHAT IS MAKING A FIREARM ACCESSIBLE TO A CHILD IN TEXAS?

The Texas law against making a firearm accessible to a child prohibits failing to secure a readily dischargeable firearm or leaving a readily dischargeable firearm in a place a person knew or should have known was accessible by a child.

WHAT IS THE MAKING A FIREARM ACCESSIBLE TO A CHILD LAW IN TEXAS?

Tex. Penal Code § 46.13. MAKING A FIREARM ACCESSIBLE TO A CHILD.

(b) A person commits an offense if a child gains access to a readily dischargeable firearm and the person with criminal negligence:

(1) failed to secure the firearm; or

(2) left the firearm in a place to which the person knew or should have known the child would gain access.

(c) It is an affirmative defense to prosecution under this section that the child’s access to the firearm:

(1) was supervised by a person older than 18 years of age and was for hunting, sporting, or other lawful purposes;

(2) consisted of lawful defense by the child of people or property;

(3) was gained by entering property in violation of this code; or

(4) occurred during a time when the actor was engaged in an agricultural enterprise.

(d) Except as provided by Subsection (e), an offense under this section is a Class C misdemeanor.

(e) An offense under this section is a Class A misdemeanor if the child discharges the firearm and causes death or serious bodily injury to himself or another person.

(f) A peace officer or other person may not arrest the actor before the seventh day after the date on which the offense is committed if:

(1) the actor is a member of the family of the child who discharged the firearm; and

(2) the child in discharging the firearm caused the death of or serious injury to the child.

(g) A dealer of firearms shall post in a conspicuous position on the premises where the dealer conducts business a sign that contains the following warning in block letters not less than one inch in height:

“IT IS UNLAWFUL TO STORE, TRANSPORT, OR ABANDON AN UNSECURED FIREARM IN A PLACE WHERE CHILDREN ARE LIKELY TO BE AND CAN OBTAIN ACCESS TO THE FIREARM.”

WHAT IS THE PENALTY CLASS FOR MAKING A FIREARM ACCESSIBLE TO A CHILD IN TEXAS?

Making a firearm accessible to a child is a Class C misdemeanor, punishable by a maximum $500 fine. If the child discharges the firearm and causes death or serious bodily injury to himself or another, making a firearm accessible to the child is a Class A misdemeanor, punishable by up to one year in county jail.

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.

WHAT IS THE PUNISHMENT RANGE FOR MAKING A FIREARM ACCESSIBLE TO A CHILD IN TEXAS?

The punishment range for making a firearm accessible to a child charged as a Class A misdemeanor is up to one year in jail, and a maximum $4,000 fine. A person charged with making a firearm accessible to a child as a Class C misdemeanor faces a fine of up to $500, and no jail time.

WHAT ARE THE PENALTIES FOR MAKING A FIREARM ACCESSIBLE TO A CHILD IN TEXAS?

A person charged with making a firearm accessible to a child as a Class A misdemeanor may be eligible for probation after a conviction, or deferred adjudication without a conviction, for a period not to exceed two years. A person charged with a Class C misdemeanor may be placed on deferred adjudication for no more than 180 days.

WHAT ARE THE DEFENSES TO MAKING A FIREARM ACCESSIBLE TO A CHILD IN TEXAS?

The statute authorizes four affirmative defenses, and gives guidelines to police and firearms dealers. A person may raise an affirmative defense to making a firearm accessible to a child if the child’s access to the firearm:

1. was supervised by a person older than 18 years of age and was for hunting, sporting, or other lawful purpose;
2. consisted of lawful defense by the child of people or property;
3. was gained by unlawfully entering property; or
4. occurred during a time when the person was engaged in an agricultural enterprise.

The law also prohibits police from arresting a person sooner than seven days after a child accidentally shoots himself or a family member. Texas law recognizes the necessity to grieve the loss of a child or family member prior to pursuing criminal charges.

• Is taking a child hunting illegal in Texas? One of the affirmative defenses to making a firearm accessible to a child is that it occurred while hunting with a person over 18 years old. If a child is given a firearm for hunt, use in a sporting event, or for another lawful purpose, and accidentally causes injury or death by discharging the firearm, the person who gave the child the firearm may assert this affirmative defense.

WHAT IS THE STATUTE OF LIMITATIONS FOR MAKING A FIREARM ACCESSIBLE TO A CHILD IN TEXAS?

The limitation period for making a firearm accessible to a child is two years.

MAKING A FIREARM ACCESSIBLE TO A CHILD IN TEXAS

Texas punishes people who act with criminal negligence in leaving loaded firearms in areas they know or should know are accessible to children. The purpose of this law is to prevent tragic scenarios in which children accidentally injure or kill themselves or others with guns.

TEXAS MAKING A FIREARM ACCESSIBLE TO A CHILD COURT CASES

The case law regarding making a firearm accessible to a child in Texas is mostly observed in the context of civil wrongful death suits.

• In Johnson v. Walker, friends were gathering at the Johnsons’ home to celebrate Christmas. Anthony, a 19-year-old who stole a gun out of Walker’s unlocked truck, brought the gun to the Johnsons’ home and let their 15-year-old son, James, play with it. James showed the gun to H.J., his ten-year-old cousin, who accidentally shot and killed James. The Johnsons sued Walker for leaving his gun in his unlocked truck, but the trial court dismissed the suit. Walker also could not be charged with making a firearm accessible to a child, because it was not a place he knew or should have known a child could access.