The Texas Prohibited Weapons law in the state of Texas outlaws possessing, manufacturing, transporting, repairing, or selling certain types of weapons, including explosives, machine guns, armor-piercing rounds and chemical weapons, among others.
FAQs about the
Prohibited Weapons law in Texas
- What is the current Texas law about Prohibited Weapons?
- What is a machine gun under Texas law?
- What is a explosive weapon under Texas law?
- What is a short-barrel gun under Texas law?
- What is an improvised explosive device under Texas law?
- What is a zip gun under Texas law?
- What is a tire deflation device under Texas law?
- What is the statute of limitation for Prohibited Weapons in Texas?
- What is the penalty for a Texas Prohibited Weapons offense?
- Can you get probation for Prohibited Weapons in Texas?
- What level of crime is Prohibited Weapons in Texas?
The various types of prohibited weapons and exceptions to the law are discussed in more detail below.
Have you been charged with Prohibited Weapons? Book a consultation to discuss legal representation with attorneys Paul Saputo and Nicholas Toufexis today.
There are two defenses to prosecution and one affirmative defense under the law, also discussed in more detail below.
The Texas legislature codified this criminal offense in Texas Penal Code Section 46.05. The legislature did not update this law in 2023. However, this law has been updated numerous times over the last several Texas legislative sessions. Weapons have been both added and removed to the list under prohibition.
The Penal Code classifies the Texas Prohibited Weapons law under Title 10 “Offenses Against Public Health, Safety, and Morals,” Chapter 46 “Weapons.” Learn more about the Texas offense of Prohibited Weapons below.
What is the current Texas law about Prohibited Weapons?
This Prohibited Weapons law prohibits the intentional or knowing possession, manufacture, transportation, repair and sale of explosive weapons, machine guns, short-barrel guns, armor piercing ammo, chemical weapons, zip guns, tire deflation devices and improvised explosive devices. The current Texas law defines the offense of Prohibited Weapons in Penal Code Section §46.05 as follows:[1]
(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.
Statutory History – Changes in 2017, 2019 and 2021
“Improvised explosive devices” were added to this list in 2017.[2] Also in 2017, improvised explosive devices were added the list of weapons that carry third degree felony penalties.[3] The 86th Texas Legislature removed “knuckles” from the list of weapons covered by this offense in 2019. [4] Silencers were removed in 2021.[5]
Defenses to Prosecution
The staute provides a defense to prosecution for this offense if your 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.”[6]
The statute provides another defense to prosecution for subsectin (a)(3) prosecution (dealing with chemical dispensing devices) for “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.”[7] A “security officer” is defined as “a commissioned security officer as defined by Section 1702.002, Occupations Code, or a noncommissioned security officer registered under Section 1702.221, Occupations Code.”[8]
Affirmative Defense
The law also provides an affirmative defense if you were acting incident to (1) dealing with a short-barrel firearm or tire deflation device solely as an antique or curio or (2) dealing with armor-piercing ammunition solely for the purpose of making the ammunition available to the armed forces or national guard, a governmental law enforcement agency, or a correctional facility or (3) dealing with a tire deflation device solely for the purpose of making the device available to the armed forces or national guard, a governmental law enforcement agency, or a correctional facility.[9]
What is a machine gun under Texas law?
Texas Penal Code Section 46.01(a)(9) defines a “machine gun” as
any firearm that is capable of shooting more than two shots automatically, without manual reloading, by a single function of the trigger.
What is a explosive weapon under Texas law?
Texas Penal Code Section 46.01(a)(2) defines an “explosive weapon” as:
any explosive or incendiary bomb, grenade, rocket, or mine, that is designed, made, or adapted for the purpose of inflicting serious bodily injury, death, or substantial property damage, or for the principal purpose of causing such a loud report as to cause undue public alarm or terror, and includes a device designed, made, or adapted for delivery or shooting an explosive weapon.
What is a short-barrel gun under Texas law?
Texas Penal Code Section 46.01(a)(10) defines a “short-barrel gun” as
a rifle with a barrel length of less than 16 inches or a shotgun with a barrel length of less than 18 inches, or any weapon made from a shotgun or rifle if, as altered, it has an overall length of less than 26 inches.
What is an improvised explosive device under Texas law?
Effective September 1, 2017, the definition of improvised explosive device is “a completed and operational bomb designed to cause serious bodily injury, death, or substantial property damage that is fabricated in an improvised manner using nonmilitary components. The term does not include: (A) unassembled components that can be legally purchased and possessed without a license, permit, or other governmental approval; or (B) an exploding target that is used for firearms practice, sold in kit form, and contains the components of a binary explosive.”[10]
What is a zip gun under Texas law?
Texas Penal Code Section 46.01(a)(16) 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.
What is a tire deflation device under Texas law?
Texas Penal Code Section 46.01(a)(16) defines a “tire deflation device” as
a device, including a caltrop or spike strip, that, when driven over, impedes or stops the movement of a wheeled vehicle by puncturing one or more of the vehicle’s tires. The term does not include a traffic control device that:
(A) is designed to puncture one or more of a vehicle’s tires when driven over in a specific direction; and
(B) has a clearly visible sign posted in close proximity to the traffic control device that prohibits entry or warns motor vehicle operators of the traffic control device.
What is the statute of limitation for Prohibited Weapons in Texas?
Prohibited Weapons offenses have a three-year limitations period.[11]
What is the penalty for a Texas Prohibited Weapons offense?
Possession (also, manufacture, sale, etc.) of “knuckles” (for offenses that occurred before September 1, 2019) was punished as a Class A misdemeanor, with a maximum of 1 year in jail and a $4000 fine.[12] “Tire deflation device”-related convictions are punished as a state jail felony.[13] All other Prohibited Weapons convictions are punished as third degree felonies,[14] including improvised explosive devices.[15] Learn more about penalties for different grades of felonies and misdemeanors
In addition, prosecutors may seek a one classification-level enhancement for Chapter 46 offenses under the Weapon-Free School Zone Law by proving beyond a reasonable doubt that you committed the offense in a place that you knew was within 300 feet of the premises of a school or at an official school function or game.[16]
Can you get probation for Prohibited Weapons in Texas?
The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Prohibited Weapons, and judges are also allowed to accept deferred adjudication plea deals.[17]
Note, however, that no matter the offense, neither judges nor juries may recommend community supervision for any suspended sentence of over 10 years.[18] Also, judges may not grant community supervision after a conviction if (1) the defendant used or exhibited a deadly weapon during the commission of the felony or immediate flight thereafter and (2) the defendant used or exhibited the deadly weapon himself or was a party to the offense and knew that a deadly weapon would be used or exhibited.[19]
What level of crime is Prohibited Weapons in Texas?
The Penal Code classifies Prohibited Weapons as either a state jail felony or a third degree felony.
Learn more about the penalty range for this offense in the section above.
Legal References:
^1. Texas Penal Code §46.05. This law is current as of 2024.^2. H.B. 913, 85th Texas Legislature, Section 2^3. H.B. 913, 85th Texas Legislature, Section 2^4. H.B. 446, 86th Texas Legislature, Section 2^5. H.B. 957, 87th Texas Legislature, Section 2, effective September 1, 2021^6. Texas Penal Code §46.05(b)^7. Texas Penal Code §46.05(f)^8. Texas Penal Code §46.05(g)^9. Texas Penal Code §46.05(d)^10. Texas Penal Code §46.01(a)(18), as created by House Bill 913, 85th Texas Legislature, Section 1, effective September 1, 2017^11. See Code of Criminal Procedure 12.01(9)^12 Texas Penal Code Section 46.05(e), as amended by HB 446, 86th Texas Legislative Session^13. Texas Penal Code §46.05(e)^14. Texas Penal Code §46.05(e)^15. Texas Penal Code §46.05(e), as amended by House Bill 913, 85th Texas Legislature, Section 2, effective September 1, 2017^16. §46.11, Texas Penal Code^17. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102 .^18. Art. 42A.053(c), Texas Code of Criminal Procedure^19. Art. 42A.054(b), Texas Code of Criminal Procedure
