GUN LAW by D. Chris Hesse

CARPE DIEM by Dustin Vaughn Warncke
February 25, 2017
February 25, 2017


Gun rights and the criminal law intersect in a myriad of ways, and it is your duty to know the common pitfalls when you decide to carry a firearm. Failure to know these pitfalls could result in you being charged with a crime.

Although this article does not cover every conceivable way in which gun rights can be taken away, it does cover the common areas in which they are taken away and focuses on the misdemeanor accusation. Felony accusations are not addressed.

Chris Hess is a criminal defense attorney in Amarillo and former U.S. Marine who served two tours in Iraq.

I. The Misdemeanor Accusation and Conviction:

There are three types of misdemeanors in Texas. Class “A” crimes are crimes whereby the accused could face up to one year in jail or six months to two years of probation. Class “B” crimes are crimes whereby the accused could face up to 180 days in jail or six months to two years of probation. Class “C” crimes are fine-only offenses. See Tex. Penal Code Sec. 12.21, 12.22 & 12.23.

It is important to note that a person accused of any Class “A,” Class “B” or Disorderly Conduct Class “C” offense will have their License to Carry (LTC) automatically suspended. See Govt. Code Sec. 411.187(a)(1).

The suspension lasts until the accusation is disposed of. If the charges are dismissed or the person gets acquitted, then the license will be restored. If the person receives a final conviction or a deferred disposition (no-conviction type probation) then the license is revoked.

If the license is revoked, or the person hopes to obtain another license down the road, they will not be eligible for the license for a period of five years. See Tex. Govt. Code Sec. 411.172(a)(8) & 411.171(4).

Common Class “A” and “B” offenses include: Possession of Marijuana two ounces or less “B;” Possession of Marijuana four ounces or less but more than two ounces “A;” Evading Arrest or Detention on Foot “A;” Resisting Arrest “A;” Terroristic Threat “B;” Theft “A” or “B” depending on amount; and Silent or Abusive Calls to 911 Service “B;” to name a few.

Disorderly Conduct offenses cover:

Profane or abusive language in public that tends to breach the peace, Class “C.”

Offensive gestures in public that tends to breach the peace, Class “C.”

Creating a noxious odor in public, Class “C”.

Abusing or threating a person in public, Class “C.”

Making an unreasonable noise in public, Class “C.”

Public fighting Class, “C.”

Discharging a firearm in public, Class “B.”

Displaying a firearm in public to calculate alarm, Class “B.”

Discharging a firearm across a public road, Class “C.”

Exposing private parts in public, Class “C.”

Peeping toms, Class “C.”

II. The Two Most Common Misdemeanor Accusations Against Law-Abiding Citizens

The two most common misdemeanor criminal accusations that I see otherwise law-abiding citizens accused of are Assault on a Family Member and Driving While Intoxicated (DWI.) When I inform them that their gun rights are in jeopardy, they get extremely concerned.

A. The Assault on a Family Member Accusation and Conviction:

The term “family member” has a very broad definition according to Texas Penal Code Sec. 22.01. “Family member” includes:

People who are or have been dating. See Tex. Family Code Sec. 71.0021.

People who are family. Family means related by blood within the third degree See Tex. Govt. Code Sec. 573.002 & & 573.022. Family also means spouses and children, and anyone related by blood within the third degree of the spouse (affinity) See Tex. Govt. Code Sec. 573.024 & 573.025, as well as former spouses, parents of the same child, and foster children and foster parents See Tex. Family Code Sec. 71.003.

People who live or used to live under one roof, regardless if they are related or not. See Tex. Family Code Sec. 71.005 and 71.006.

The reason why “family member” is so broadly defined, is that the legislature defined it that way to prevent any kind of domestic violence. I’ve seen college roommates charged with assault on a family member for allegedly assaulting their roommate.

I’ve seen former girlfriends/boyfriends being charged. I’ve seen brother in law accused of assaulting brother in law or father in law. The definition has been applied as broadly as it is defined.

Misdemeanor assault on a family member comes in two forms. Class “A” misdemeanor assault, whereby the alleged victim suffered some sort of pain, however minor, and Class “C” misdemeanor assault, in which the alleged victim is assaulted by an “offensive” contact (without pain.) 

If the person is convicted of assault on a family member “A,” or “C” then the person is prohibited by federal law from possessing a firearm that has crossed state lines (which applies to almost every firearm manufactured.) See 18 U.S.C. 922(g)(9) & 18 U.S.C. 921(a)(33).

Some of my clients have expressed a desire to join the military. Because military service requires a person to be able to lawfully possess a firearm, they are ineligible to join. State law also prohibits a person from possessing a firearm if that person is convicted of assault on a family member “A” within five years of the person’s release from confinement or release from community supervision. See Texas Penal Code Sec. 46.04 entitled “Unlawful Possession of Firearm.” Also, a final conviction for assault on a family member “A” or “C” will forever thereafter render the person ineligible to obtain a LTC pursuant to Texas Govt. Code Sec. 411.172(9). 

B. The DWI Accusation and Conviction:

It may surprise you to know that you have a right to carry a pistol in your vehicle, out of sight, without having to have a LTC. Many citizens exercise this right and choose not to obtain a LTC and to simply have a pistol in their vehicles. It is also worth noting that rifles and shotguns need not be concealed while in the vehicle and a LTC does not apply to rifles and shotguns. 

DWI “A” or “B” is the second most common criminal accusation that I see otherwise law abiding citizens accused of. For the purposes of this article, it is not necessary to differentiate between DWI “A” or “B.”

Again, as stated above, if the person is accused of a Class “A” or “B” misdemeanor, their LTC will be suspended.

My clients who are charged with DWI and have a pistol in the car most commonly face an additional criminal accusation called “Unlawful Carrying Weapons” (UCW). See Texas Penal Code Sec. 46.02.

A person is committing UCW “A” if they are carrying a pistol in their car and the person is “engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic or boating.” Id. Because people accused of DWI “A” or “B” are “engaged in criminal activity,” many counties automatically charge the person with UCW “A” in addition to the DWI. Many of my clients in this situation have stated, “But I have aConcealed Carry License!” To them, I have said that the State can charge someone with UCW “A” regardless of whether they have a LTC or not.

III. The Lesson:

Not everyone accused of DWI or Assault on a Family Member is guilty. It is the officer’s subjective opinion on whether a person is “intoxicated” when the officer arrests someone for DWI.

Likewise, there are numerous examples of children accusing their parents of assault when no such assault occurred or ex-boyfriends/girlfriends or ex-spouses making an accusation that they were assaulted in order to gain an advantage in a custody battle or divorce. 

It is important to know what your gun rights are and to avoid being accused of these two common crimes. If you have any amount of alcohol, try taking an Uber or taxi rather than fall prey to a DWI arrest. If a family member is accusing you of assault, take into consideration the consequences of the assault accusation on your gun rights before you and your attorney develop any sort of defense.

Chris Hesse is a criminal defense attorney in Amarillo, Texas.  He served two tours of duty in Iraq and achieved the rank of Captain in the U.S. Marine Corps after a 10-year career.  He is is admitted to the bar of the State of Texas, and 20 Federal District and Federal Appellate Courts.  He represents clients at trial, on direct appeal, and on post-conviction habeas corpus.

He can be reached by email at [email protected].


—story by D. Chris Hesse


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