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Unlawful Carrying Weapons (“UCW”)

The Unlawful Carrying Weapons” offense, also known as “UCW” in Texas, makes it illegal to carry a “handgun, illegal knife, or club” (note that H.B. 1935 removed illegal knives from regulation under this law effective September 1, 2017) except under certain circumstances, and there are many such circumstances. For starters, carrying one of these weapons in your own “premises” or “motor vehicle” is not illegal under this law. Another broad exception is for those who have concealed carry licenses (CHL permits), law enforcement and court officers.

Described more thoroughly below, H.B. 1935 removed illegal knives from regulation under the existing UCW law, created a new subsection dealing with possession of “Location-restricted knives” by juveniles and set the offense level for this new subsection as a Class C misdemeanor.

Have you been charged with UCW in Texas? Call criminal defense lawyer Paul Saputo at (888) 239-9305.

The UCW law also makes it illegal to carry in your car or truck a “handgun, illegal knife, or club” that is in “plain view.” And even if it is not in plain view, the UCW statute criminalizes the carrying of a weapon if it is in your vehicle or on your person and either 1) you are committing some other offense (like a DWI) or 2) you are a member of a “criminal street gang.” And, unsurprisingly, you can be convicted of UCW if you are already forbidden by law to be carrying a weapon and a weapon is found on you or your vehicle.

What is UCW? What is the UCW law?

UCW means Unlawful Carrying Weapons. The Texas offense of Unlawful Carrying Weapons is described in the Texas Penal Code Section 46.02, and it prohibits carrying handguns, illegal knives and clubs in certain circumstances. H.B. 1935 amended this law, effective September 1, 2017,1 by removing “illegal knives” from regulation under this law and creating a new subsection (a-4) that regulates the possession of “Location-restricted knives” by juveniles.2 The new law is below the old version:

Law in effect until September 1, 2017:

(a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not:

(1) on the person’s own premises or premises under the person’s control; or

(2) inside of or directly en route to a motor vehicle or watercraft that is owned by the person or under the person’s control.

(a-1) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle or watercraft that is owned by the person or under the person’s control at any time in which:

(1) the handgun is in plain view, unless the person is licensed to carry a handgun under Subchapter H, Chapter 411, Government Code, and the handgun is carried in a shoulder or belt holster; or

(2) the person is:

(A) engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic or boating;

(B) prohibited by law from possessing a firearm; or

(C) a member of a criminal street gang, as defined by Section 71.01.

The phrase in bold above was added to subsection (a-1)(1) as part of Texas’s new Open Carry laws in House Bill 910 of the Texas 84th Regular Legislative Session. Note that Section 52 of the bill states that this new change is effective only to offenses committed after the effective date of the bill (January 1, 2016).

The new subsection (a) and (a-4) in effect after September 1, 2017:

(a) A person commits an offense if the person:

(1) intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club; and

(2) if the person is not:

(A) on the person’s own premises or premises under the person’s control; or

(B) inside of or directly en route to a motor vehicle or watercraft that is owned by the person or under the person’s control.

(a-4) A person commits an offense if the person:

(1) intentionally, knowingly, or recklessly carries on or about his or her person a location-restricted knife;

(2) is younger than 18 years of age at the time of the offense; and

(3) is not:

(A) on the person’s own premises or premises under the person’s control;

(B) inside of or directly en route to a motor vehicle or watercraft that is owned by the person or under the person’s control; or

(C) under the direct supervision of a parent or legal guardian of the person.

Who is exempt from the UCW law?

Texas law exempts many people from the applicability of the UCW law.3 Section 46.15(a) of the Texas Penal Code exempts law enforcement and court officials, and Section 46.15(b) exempts certain military members,4, people who are traveling,5 hunters and fishermen,6 security officers,7 CHL holders,8 and alcoholic beverage permit holders.9

In addition, Texas law contains the following exemptions:

  • Section 46.15(c) exempts a properly trained “noncommissioned security guard at an institution of higher education who carries a nightstick or similar club”
  • Section 46.15(d) exempts a “public security officer employed by the adjutant general” from prohibitions on the carrying of a club
  • Section 46.15(e) exempts the carrying of a bowie knife or sword in a “historical demonstration or in a ceremony” (and beginning September 1, 2017, pursuant to H.B. 1935, this exemption will be extended to all location-restricted knives)
  • Section 46.15(g) exempts animal control officers from certain prohibitions
  • Section 46.15(j) exempts people who carry a handgun in a “historical reenactment performed in accordance with the rules of the Texas Alcoholic Beverage Commission”

Note that for each exemption, certain conditions may apply that limit the exemption. See the footnotes below for more details.

How does UCW interact with my CHL?

Under Section 46.15(b)(6), the UCW offense does not apply to holders of a CHL, whether the weapon was concealed or, under the new Open Carry law, carried openly in a shoulder or belt holster. If you are charged with UCW and you hold a CHL permit, immediately inform your criminal defense attorney. You may be able to get your UCW case dismissed.

Note, however, that Section 46.035 contains separate rules for prohibited carry by CHL holders. Section 46.035 covers the conspicuous carry of handguns and carrying a handgun at a bar, church, sporting event, amusement park and other places. It also covers carrying a handgun while intoxicated and carrying at a government meeting. Also note that your CHL can be suspended if you are convicted of certain misdemeanor and felony offenses.

What is a “criminal street gang“?

The UCW law mentions the term “criminal street gang.” The criminal street gang definition is discussed in our article about Engaging in Organized Criminal Activity.

How we defend against a UCW charge

Some of the key elements of UCW defense are: 1) whether the person being charged “intentionally, knowingly, or recklessly” carried the weapon 2) whether the handgun was in “plain view” and 3) whether there was an underlying criminal defense. These are only three of the possible defense strategies, however, and there are many more depending on your particular situation. It is important to contact a lawyer to discuss your specific case to learn how these and other defenses may affect you.

If the state can’t prove that you did not “intentionally, knowingly, or recklessly” carry the weapon, regardless of the other circumstances, then you should win your case. An example of this would be if someone planted the gun on you or your person and you there is no way you could or should have known about it. Mere negligence would not give rise to a conviction.

Alternatively, if the state can’t prove the weapon was in “plain view” then you could win the case that way. Plain view is a technical, legal term, of course, so any analysis of this would entail a review of the relevant Texas case law on the subject.

The third example that I give is most typically seen in DWIs. If you are arrested for a DWI and you have a handgun in your car, you could be faced with a UCW arrest. But if you win the DWI case, then you should also win the UCW case (if there is no other basis for the UCW).

As I mentioned above, these are only three of the many possible defense strategies that we use. The defense we might use in your case might be different, and it will depend on the specific facts of your case.

What is the penalty for a UCW conviction?

The UCW offense is a Class A misdemeanor10 unless the state’s attorneys prove that the UCW offense is committed on any premises licensed to sell alcoholic beverages, in which case it is a third degree felony11. However, the law as updated by H.B. 1935 in 2017 punishes subsection (a-4) convictions as Class C misdemeanors.12 As described above, that subsection deals exclusively with juveniles possession Location-restricted knives.

How did the UCW law change when Texas passed the Open Carry Laws?

Texas Open Carry
A member of the group Open Carry Texas poses for a picture taken before a rally at the University of Texas in Austin.

The UCW law changed significantly when Texas passed the new Open Carry laws. In summary, it is no longer a crime for a CHL (that is, a holder of a concealed carry permit) to carry a handgun in a shoulder or belt holster in plain view, under most circumstances. Of course, there are still some places where weapons are not allowed.

How did the UCW statute change to make open carry legal? First, House Bill 910 amended subsection (a-1)(1) of the UCW law by adding “unless the person is licensed to carry a handgun under Subchapter H, Chapter 411, Government Code, and the handgun is carried in a shoulder or belt holster” as an exception to the “plain view” type of UCW violation. See how the statute looks now

Globally, the same House Bill eliminated the word “concealed” from various places in the Penal Code (including Section 46.15) because, essentially, a “concealed” handgun permit now allows people to carry in a concealed and un-concealed manner. So the exceptions that applied to concealed handguns now generally apply to both concealed and visible handguns.

The change is effective only to offenses committed after the effective date of the bill,13 January 1, 201614.

Can I get deferred for UCW? Is there a waiting period for nondisclosure? What are the laws about UCW probation?

UCW charges are eligible to be deferred under Article 42A.102 of the Texas Code of Criminal Procedure. Straight probation is also allowed to be imposed by both the judge and jury.15 However, Sec. 411.073 of the Texas Government Code mandates a 2 year waiting period to petition the court for an order of nondisclosure after the successful completion of deferred adjudication probation.


Legal References:

1House Bill 1935, 85th Texas Legislature, Sections 9-10

2House Bill 1935, 85th Texas Legislature, Section 4

3Texas Penal Code Section 46.15(a) applies to both UCW and the “Places Weapons Prohibited” offense:

Sections 46.02 and 46.03 do not apply to:

(1) peace officers or special investigators under Article 2.122, Code of Criminal Procedure, and neither section prohibits a peace officer or special investigator from carrying a weapon in this state, including in an establishment in this state serving the public, regardless of whether the peace officer or special investigator is engaged in the actual discharge of the officer’s or investigator’s duties while carrying the weapon;

(2) parole officers and neither section prohibits an officer from carrying a weapon in this state if the officer is:

(A) engaged in the actual discharge of the officer’s duties while carrying the weapon; and

(B) in compliance with policies and procedures adopted by the Texas Department of Criminal Justice regarding the possession of a weapon by an officer while on duty;

(3) community supervision and corrections department officers appointed or employed under Section 76.004, Government Code, and neither section prohibits an officer from carrying a weapon in this state if the officer is:

(A) engaged in the actual discharge of the officer’s duties while carrying the weapon; and

(B) authorized to carry a weapon under Section 76.0051, Government Code;

(4) an active judicial officer as defined by Section 411.201, Government Code, who is licensed to carry a handgun under Subchapter H, Chapter 411, Government Code;

(5) an honorably retired peace officer, qualified retired law enforcement officer, federal criminal investigator, or former reserve law enforcement officer who holds a certificate of proficiency issued under Section 1701.357, Occupations Code, and is carrying a photo identification that is issued by a federal, state, or local law enforcement agency, as applicable, and that verifies that the officer is:

(A) an honorably retired peace officer;

(B) a qualified retired law enforcement officer;

(C) a federal criminal investigator; or

(D) a former reserve law enforcement officer who has served in that capacity not less than a total of 15 years with one or more state or local law enforcement agencies;

(6) a district attorney, criminal district attorney, county attorney, or municipal attorney who is licensed to carry a handgun under Subchapter H, Chapter 411, Government Code;

(7) an assistant district attorney, assistant criminal district attorney, or assistant county attorney who is licensed to carry a handgun under Subchapter H, Chapter 411, Government Code;

(8) a bailiff designated by an active judicial officer as defined by Section 411.201, Government Code, who is:

(A) licensed to carry a handgun under Subchapter H, Chapter 411, Government Code; and

(B) engaged in escorting the judicial officer; or

(9) a juvenile probation officer who is authorized to carry a firearm under Section 142.006, Human Resources Code.

Texas Penal Code Section 46.15(b) applies to UCW only. Section 46.15(b) is as follows:

(b) Section 46.02 does not apply to a person who:

(1) is in the actual discharge of official duties as a member of the armed forces or state military forces as defined by Section 437.001, Government Code, or as a guard employed by a penal institution;

(2) is traveling;

(3) is engaging in lawful hunting, fishing, or other sporting activity on the immediate premises where the activity is conducted, or is en route between the premises and the actor’s residence, motor vehicle, or watercraft, if the weapon is a type commonly used in the activity;

(4) holds a security officer commission issued by the Texas Private Security Board, if the person is engaged in the performance of the person’s duties as an officer commissioned under Chapter 1702, Occupations Code, or is traveling to or from the person’s place of assignment and is wearing the officer’s uniform and carrying the officer’s weapon in plain view;

(5) acts as a personal protection officer and carries the person’s security officer commission and personal protection officer authorization, if the person:

(A) is engaged in the performance of the person’s duties as a personal protection officer under Chapter 1702, Occupations Code, or is traveling to or from the person’s place of assignment; and

(B) is either:

(i) wearing the uniform of a security officer, including any uniform or apparel described by Section 1702.323(d), Occupations Code, and carrying the officer’s weapon in plain view; or

(ii) not wearing the uniform of a security officer and carrying the officer’s weapon in a concealed manner;

(6) is carrying:

(A) a license issued under Subchapter H, Chapter 411, Government Code, to carry a handgun; and

(B) a handgun:

(i) in a concealed manner; or

(ii) in a shoulder or belt holster;a concealed handgun and a valid license issued under Subchapter H, Chapter 411, Government Code, to carry a concealed handgun;

(7) holds an alcoholic beverage permit or license or is an employee of a holder of an alcoholic beverage permit or license if the person is supervising the operation of the permitted or licensed premises; or

(8) is a student in a law enforcement class engaging in an activity required as part of the class, if the weapon is a type commonly used in the activity and the person is:

(A) on the immediate premises where the activity is conducted; or

(B) en route between those premises and the person’s residence and is carrying the weapon unloaded.

Sections 46.15(c), (d), (e), (g) and (j) provide additional exemptions.

4Texas Penal Code Section 46.15(b)(1)

5Texas Penal Code Section 46.15(b)(2)

6Texas Penal Code Section 46.15(b)(3)

7Texas Penal Code Section 46.15(b)(4)

8Texas Penal Code Section 46.15(b)(6)

9Texas Penal Code Section 46.15(b)(7)

10Texas Penal Code Section 46.02(b)

11Texas Penal Code Section 46.02(c)

12Texas Penal Code Section 46.02(d), created by House Bill 1935, Section 4, 85th Texas Legislature, effective September 1, 2017

13House Bill 910, 85th Texas Legislature, Section 52, effective September 1, 2017

14House Bill 910, 85th Texas Legislature, Section 53, effective September 1, 2017

15See Texas Code of Criminal Procedure Chapter 42A, generally

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