Are you committing a crime?
Because you want to protect your family, and if you will recall from our previous blog that you are most likely a member of the Reserve Militia of Texas; you most likely own a gun.
Well, depending on how your guns are stored, you could be committing a crime right now without even realizing it.
I know, I know, you’re not a “criminal”, but in Texas, children are not allowed to have access to firearms, and making a firearm accessible to a child is a criminal offense.
That’s right, even here in Texas, children aren’t allowed to have access to firearms.
If a Child Gains Access
According to Texas law, a person commits an offense if two things happen: 1) a child gains access to a readily dischargeable firearm AND 2) the person, with criminal negligence, failed to secure the firearm or left the firearm in a place to which the person knew, or should have known, the child would gain access.
—See Tex. Pen. Code § 46.13(b)
Notice that this is a two-part criminal offense? The child has to actually gain access, and you have to do something foolish in storing your firearms.
What does that mean?
Well, there are a couple of words and a phrase in that law that we need to define.
A “child” is a person younger than 17 years of age. That means someone that hasn’t had their 17th birthday yet.
—See Tex. Pen. Code § 46.13(a)(1)
A “readily dischargeable firearm” means a firearm that is loaded with ammunition, whether or not a round is in the chamber. This means having a cartridge in the magazine, and having the magazine in the firearm. This means having a cartridge in one of the chambers of a revolver. Notice how it says nothing about using the firearm’s “safety”?
—See Tex. Pen. Code § 46.13(a)(2)
To “secure” a firearm means to take steps that a reasonable person would take to prevent the access to a readily dischargeable firearm by a child, including, but not limited to, placing a firearm in a locked container, or temporarily rendering the firearm inoperable by a trigger lock or other means.
—See Tex. Pen. Code § 46.13(a)(3)
Affirmative Defenses
Even though allowing a child access to a firearm is an offense, if a child is allowed access to a firearm under certain circumstances, then you cannot be prosecuted.
If the child’s access to a readily dischargeable firearm is under the supervision of someone over age 18 for hunting, sporting, or other lawful purposes, then this defense can be asserted to avoid prosecution.
If the child’s access to a readily dischargeable firearm was while the child was lawfully defending themselves or property, then this defense can be asserted to avoid prosecution.
If the child’s access to a readily dischargeable firearm was gained by entering property in violation of this code, (child breaks into your home, gun safe, etc.) then this defense can be asserted to avoid prosecution.
If the child’s access to a readily dischargeable firearm occurred during a time when engaged in an agricultural enterprise, then this defense can be asserted to avoid prosecution.
—See Tex. Pen. Code § 46.13(c)(1)-(4)
What’s the Punishment?
The punishment for making a firearm accessible to a child is fairly minor. It is simply a Class C Misdemeanor. A Class C Misdemeanor is punishable by a fine only, not to exceed $500.00.
—See Tex. Pen. Code § 46.13(d) & Tex. Pen. Code § 12.23
However, if the child discharges the firearm and causes death or serious bodily injury to himself or another person, then the person who made the firearm accessible to the child may be charged as a Class A Misdemeanor. A Class A Misdemeanor is punishable by a fine not to exceed $4,000.00, confinement in jail for up to 1 year, or both fine and confinement.
—See Tex. Pen. Code § 46.13(e) & Tex. Pen. Code § 12.21
Mourning Period
Unfortunately, many children are hurt each year by unsecured firearms. Whether it is a lack of supervision, failure to teach children about the proper handling of firearms (i.e., DON’T TOUCH IT!), or the failure of the parent to properly secure the firearm, the ugly truth is that children are hurt and it is absolutely preventable by any responsible gun owner.
When children seriously injure, or kill, themselves with a firearm, Texas law prohibits police from arresting the family member that made the firearm accessible to the child for 7 days.
—See Tex. Pen. Code § 46.13(f)
–Authored by Matthew L. Harris, Esq.,
Matthew Harris Law, PLLC – Criminal Law Division
1001 Main Street, Suite 200, Lubbock, Texas, 79401-3309
Tel: (806) 702-4852 | Fax: (800) 985-9479