Section 71.05 - Renunciation Defense

Sec. 71.05. RENUNCIATION DEFENSE.

Text of subsection (a) as amended by Acts 1993, 73rd Leg., ch. 761, Sec. 3

(a) It is an affirmative defense to prosecution under Section 71.02 of this code that under circumstances manifesting a voluntary and complete renunciation of his criminal objective the actor withdrew from the combination before commission of an offense listed in Subdivisions (1) through (7) or Subdivision (10) of Subsection (a) of Section 71.02 of this code and took further affirmative action that prevented the commission of the offense.

Text of subsection (a) as amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01

(a) It is an affirmative defense to prosecution under Section 71.02 that under circumstances manifesting a voluntary and complete renunciation of his criminal objective the actor withdrew from the combination before commission of an offense listed in Subsection (a) of Section 71.02 and took further affirmative action that prevented the commission of the offense.
(b) For the purposes of this section and Subsection (d) of Section 71.02, renunciation is not voluntary if it is motivated in whole or in part:
     (1) by circumstances not present or apparent at the inception of the actor's course of conduct that increase the probability of detection or apprehension or that make more difficult the accomplishment of the objective; or
     (2) by a decision to postpone the criminal conduct until another time or to transfer the criminal act to another but similar objective or victim.

Text of subsection (c) as amended by Acts 1993, 73rd Leg., ch. 761, Sec. 3

(c) Evidence that the defendant withdrew from the combination before commission of an offense listed in Subdivisions (1) through (7) or Subdivision (10) of Subsection (a) of Section 71.02 of this code and made substantial effort to prevent the commission of an offense listed in Subdivisions (1) through (7) or Subdivision (10) of Subsection (a) of Section 71.02 of this code shall be admissible as mitigation at the hearing on punishment if he has been found guilty under Section 71.02 of this code, and in the event of a finding of renunciation under this subsection, the punishment shall be one grade lower than that provided under Section 71.02 of this code.

Added by Acts 1977, 65th Leg., p. 922, ch. 346, Sec. 1, eff. June 10, 1977. Amended by Acts 1981, 67th Leg., p. 2374, ch. 587, Sec. 4, 5, eff. Sept. 1, 1981; Acts 1993, 73rd Leg., ch. 761, Sec. 4, eff. Sept. 1, 1993; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Section 71.02 - Testimonial Immunity

Sec. 71.04. TESTIMONIAL IMMUNITY. (a) A party to an offense under this chapter may be required to furnish evidence or testify about the offense.
(b) No evidence or testimony required to be furnished under the provisions of this section nor any information directly or indirectly derived from such evidence or testimony may be used against the witness in any criminal case, except a prosecution for aggravated perjury or contempt.

Added by Acts 1977, 65th Leg., p. 922, ch. 346, Sec. 1, eff. June 10, 1977. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Section 71.03 - Defenses Excluded

Sec. 71.03. DEFENSES EXCLUDED. It is no defense to prosecution under Section 71.02 that:
(1) one or more members of the combination are not criminally responsible for the object offense;
(2) one or more members of the combination have been acquitted, have not been prosecuted or convicted, have been convicted of a different offense, or are immune from prosecution;
(3) a person has been charged with, acquitted, or convicted of any offense listed in Subsection (a) of Section 71.02; or
(4) once the initial combination of three or more persons is formed there is a change in the number or identity of persons in the combination as long as two or more persons remain in the combination and are involved in a continuing course of conduct constituting an offense under this chapter.

Added by Acts 1977, 65th Leg., p. 922, ch. 346, Sec. 1, eff. June 10, 1977. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Section 71.029 - Maps as Evidence of Location or Area

Sec. 71.029. MAPS AS EVIDENCE OF LOCATION OR AREA. (a) In a prosecution of an offense for which punishment is increased under Section 71.028, a map produced or reproduced by a municipal or county engineer for the purpose of showing the location and boundaries of gang-free zones is admissible in evidence and is prima facie evidence of the location or boundaries of those zones if the governing body of the municipality or county adopts a resolution or ordinance approving the map as an official finding and record of the location or boundaries of those zones.
(b) A municipal or county engineer may, on request of the governing body of the municipality or county, revise a map that has been approved by the governing body of the municipality or county as provided by Subsection (a).
(c) A municipal or county engineer shall file the original or a copy of every approved or revised map approved as provided by Subsection (a) with the county clerk of each county in which the zone is located.
(d) This section does not prevent the prosecution from:
     (1) introducing or relying on any other evidence or testimony to establish any element of an offense for which punishment is increased under Section 71.028; or
     (2) using or introducing any other map or diagram otherwise admissible under the Texas Rules of Evidence.

Added by Acts 2009, 81st Leg., R.S., Ch. 1130, Sec. 3, eff. September 1, 2009.

Section 71.028 - Gang-Free Zone

Sec. 71.028. GANG-FREE ZONES. (a) In this section:
     (1) "Institution of higher education," "playground," "premises," "school," "video arcade facility," and "youth center" have the meanings assigned by Section 481.134, Health and Safety Code.
     (2) "Shopping mall" means an enclosed public walkway or hall area that connects retail, service, or professional establishments.
(b) This section applies to an offense listed in Section 71.02(a)(1), (4), or (7), other than burglary, theft, burglary of a motor vehicle, or unauthorized use of a motor vehicle.
(c) Except as provided by Subsection (d), the punishment prescribed for an offense described by Subsection (b) is increased to the punishment prescribed for the next highest category of offense if the actor is 17 years of age or older and it is shown beyond a reasonable doubt on the trial of the offense that the actor committed the offense at a location that was:
     (1) in, on, or within 1,000 feet of any:
          (A) real property that is owned, rented, or leased by a school or school board;
          (B) premises owned, rented, or leased by an institution of higher education;
          (C) premises of a public or private youth center; or
          (D) playground;
     (2) in, on, or within 300 feet of any:
          (A) shopping mall;
          (B) movie theater;
          (C) premises of a public swimming pool; or
          (D) premises of a video arcade facility; or
     (3) on a school bus.
(d) The punishment for an offense described by Subsection (b) may not be increased under this section if the offense is punishable under Section 71.02 as a felony of the first degree.

Added by Acts 2009, 81st Leg., R.S., Ch. 1130, Sec. 3, eff. September 1, 2009.

Section 71.023 - Directing Activities of Certain Criminal Street Gangs

Sec. 71.023. DIRECTING ACTIVITIES OF CERTAIN CRIMINAL STREET GANGS. (a) A person commits an offense if the person knowingly initiates, organizes, plans, finances, directs, manages, or supervises a criminal street gang or members of a criminal street gang with the intent to benefit, promote, or further the interests of the criminal street gang or to increase the person's standing, position, or status in the criminal street gang.
(b) An offense under this section is a felony of the first degree.
(c) Notwithstanding Section 71.01, in this section, "criminal street gang" means:
     (1) an organization that:
          (A) has more than 10 members whose names are included in an intelligence database under Chapter 61, Code of Criminal Procedure;
          (B) has a hierarchical structure that has been documented in an intelligence database under Chapter 61, Code of Criminal Procedure;
          (C) engages in profit-sharing among two or more members of the organization; and
          (D) in one or more regions of this state served by different regional councils of government, continuously or regularly engages in conduct:
               (i) that constitutes an offense listed in Section 3g(a)(1), Article 42.12, Code of Criminal Procedure;
               (ii) in which it is alleged that a deadly weapon is used or exhibited during the commission of or immediate flight from the commission of any felony offense; or
               (iii) that is punishable as a felony of the first or second degree under Chapter 481, Health and Safety Code; or
     (2) an organization that, in collaboration with an organization described by Subdivision (1), engages in conduct or commits an offense or conspires to engage in conduct or commit an offense described by Subdivision (1)(D).

Added by Acts 2009, 81st Leg., R.S., Ch. 1130, Sec. 3, eff. September 1, 2009.

Section 71.022 - Coercing, Inducing, or Soliciting Membership in a Criminal Street Gang

Sec. 71.022. COERCING, INDUCING, OR SOLICITING MEMBERSHIP IN A CRIMINAL STREET GANG. (a) A person commits an offense if the person knowingly causes, enables, encourages, recruits, or solicits another person to become a member of a criminal street gang which, as a condition of initiation, admission, membership, or continued membership, requires the commission of any conduct which constitutes an offense punishable as a Class A misdemeanor or a felony.
(a-1) A person commits an offense if, with intent to coerce, induce, or solicit a child to actively participate in the activities of a criminal street gang, the person:
     (1) threatens the child or a member of the child's family with imminent bodily injury; or
     (2) causes bodily injury to the child or a member of the child's family.
(b) Except as provided by Subsection (c), an offense under this section is a felony of the third degree.
(c) A second or subsequent offense under this section is a felony of the second degree.
(d) In this section:
     (1) "Child" means an individual younger than 17 years of age.
     (2) "Family" has the meaning assigned by Section 71.003, Family Code.

Added by Acts 1999, 76th Leg., ch. 1555, Sec. 1, eff. Sept. 1, 1999.
Amended by:
Acts 2009, 81st Leg., R.S., Ch. 435, Sec. 1, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch. 435, Sec. 2, eff. September 1, 2009.

Section 71.021 - Violation of Court Order Enjoining Organized Criminal Activity

Sec. 71.021. VIOLATION OF COURT ORDER ENJOINING ORGANIZED CRIMINAL ACTIVITY. (a) A person commits an offense if the person knowingly violates a temporary or permanent order issued under Section 125.065(a) or (b), Civil Practice and Remedies Code.
(b) If conduct constituting an offense under this section also constitutes an offense under another section of this code, the actor may be prosecuted under either section or under both sections.
(c) An offense under this section is a Class A misdemeanor.

Added by Acts 1995, 74th Leg., ch. 584, Sec. 1, eff. Sept. 1, 1995.

Section 71.02 - Engaging in Organized Criminal Activity

Sec. 71.02. ENGAGING IN ORGANIZED CRIMINAL ACTIVITY.

Text of subsection as amended by Acts 2009, 81st Leg., R.S., Ch. 153, Sec. 2

(a) A person commits an offense if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang, the person commits or conspires to commit one or more of the following:
     (1) murder, capital murder, arson, aggravated robbery, robbery, burglary, theft, aggravated kidnapping, kidnapping, aggravated assault, aggravated sexual assault, sexual assault, forgery, deadly conduct, assault punishable as a Class A misdemeanor, burglary of a motor vehicle, or unauthorized use of a motor vehicle;
     (2) any gambling offense punishable as a Class A misdemeanor;
     (3) promotion of prostitution, aggravated promotion of prostitution, or compelling prostitution;
     (4) unlawful manufacture, transportation, repair, or sale of firearms or prohibited weapons;
     (5) unlawful manufacture, delivery, dispensation, or distribution of a controlled substance or dangerous drug, or unlawful possession of a controlled substance or dangerous drug through forgery, fraud, misrepresentation, or deception;
     (6) any unlawful wholesale promotion or possession of any obscene material or obscene device with the intent to wholesale promote the same;
     (7) any offense under Subchapter B, Chapter 43, depicting or involving conduct by or directed toward a child younger than 18 years of age;
     (8) any felony offense under Chapter 32;
     (9) any offense under Chapter 36;
     (10) any offense under Chapter 34 or 35;
     (11) any offense under Section 37.11(a);
     (12) any offense under Chapter 20A;
     (13) any offense under Section 37.10; or
     (14) any offense under Section 46.06(a)(1) or 46.14.

Text of subsection as amended by Acts 2009, 81st Leg., R.S., Ch. 1130, Sec. 1

(a) A person commits an offense if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang, he commits or conspires to commit one or more of the following:
     (1) murder, capital murder, arson, aggravated robbery, robbery, burglary, theft, aggravated kidnapping, kidnapping, aggravated assault, aggravated sexual assault, sexual assault, forgery, deadly conduct, assault punishable as a Class A misdemeanor, burglary of a motor vehicle, or unauthorized use of a motor vehicle;
     (2) any gambling offense punishable as a Class A misdemeanor;
     (3) promotion of prostitution, aggravated promotion of prostitution, or compelling prostitution;
     (4) unlawful manufacture, transportation, repair, or sale of firearms or prohibited weapons;
     (5) unlawful manufacture, delivery, dispensation, or distribution of a controlled substance or dangerous drug, or unlawful possession of a controlled substance or dangerous drug through forgery, fraud, misrepresentation, or deception;
     (6) any unlawful wholesale promotion or possession of any obscene material or obscene device with the intent to wholesale promote the same;
     (7) any offense under Subchapter B, Chapter 43, depicting or involving conduct by or directed toward a child younger than 18 years of age;
     (8) any felony offense under Chapter 32;
     (9) any offense under Chapter 36;
     (10) any offense under Chapter 34 or 35;
     (11) any offense under Section 37.11(a);
     (12) any offense under Chapter 20A;
     (13) any offense under Section 37.10; or
     (14) any offense under Section 38.06, 38.07, 38.09, or 38.11.

Text of subsection as amended by Acts 2009, 81st Leg., R.S., Ch. 1357, Sec. 2

(a) A person commits an offense if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang, he commits or conspires to commit one or more of the following:
     (1) murder, capital murder, arson, aggravated robbery, robbery, burglary, theft, aggravated kidnapping, kidnapping, aggravated assault, aggravated sexual assault, sexual assault, forgery, deadly conduct, assault punishable as a Class A misdemeanor, burglary of a motor vehicle, or unauthorized use of a motor vehicle;
     (2) any gambling offense punishable as a Class A misdemeanor;
     (3) promotion of prostitution, aggravated promotion of prostitution, or compelling prostitution;
     (4) unlawful manufacture, transportation, repair, or sale of firearms or prohibited weapons;
     (5) unlawful manufacture, delivery, dispensation, or distribution of a controlled substance or dangerous drug, or unlawful possession of a controlled substance or dangerous drug through forgery, fraud, misrepresentation, or deception;
     (6) any unlawful wholesale promotion or possession of any obscene material or obscene device with the intent to wholesale promote the same;
     (7) any offense under Subchapter B, Chapter 43, depicting or involving conduct by or directed toward a child younger than 18 years of age;
     (8) any felony offense under Chapter 32;
     (9) any offense under Chapter 36;
     (10) any offense under Chapter 34 or 35;
     (11) any offense under Section 37.11(a);
     (12) any offense under Chapter 20A;
     (13) any offense under Section 37.10; or
     (14) any offense under Section 42.10.

Text of subsection (b) as amended by Acts 1993, 73rd Leg., ch. 761, Sec. 3

(b) Except as provided in Subsection (c) of this section, an offense under this section is one category higher than the most serious offense listed in Subdivisions (1) through (10) of Subsection (a) of this section that was committed, and if the most serious offense is a Class A misdemeanor, the offense is a felony of the third degree, except that if the most serious offense is a felony of the first degree, the offense is a felony of the first degree.

Text of subsection (b) as amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01

(b) Except as provided in Subsections (c) and (d), an offense under this section is one category higher than the most serious offense listed in Subsection (a) that was committed, and if the most serious offense is a Class A misdemeanor, the offense is a state jail felony, except that if the most serious offense is a felony of the first degree, the offense is a felony of the first degree.

Text of subsection (c) as amended by Acts 1993, 73rd Leg., ch. 761, Sec. 3

(c) Conspiring to commit an offense under this section is of the same degree as the most serious offense listed in Subdivisions (1) through (10) of Subsection (a) of this section that the person conspired to commit.

Text of subsection (c) as amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01

(c) Conspiring to commit an offense under this section is of the same degree as the most serious offense listed in Subsection (a) that the person conspired to commit.
(d) At the punishment stage of a trial, the defendant may raise the issue as to whether in voluntary and complete renunciation of the offense he withdrew from the combination before commission of an offense listed in Subsection (a) and made substantial effort to prevent the commission of the offense. If the defendant proves the issue in the affirmative by a preponderance of the evidence the offense is the same category of offense as the most serious offense listed in Subsection (a) that is committed, unless the defendant is convicted of conspiring to commit the offense, in which event the offense is one category lower than the most serious offense that the defendant conspired to commit.

Added by Acts 1977, 65th Leg., p. 922, ch. 346, Sec. 1, eff. June 10, 1977. Amended by Acts 1981, 67th Leg., p. 2373, ch. 587, Sec. 1 to 3, eff. Sept. 1, 1981; Acts 1989, 71st Leg., ch. 782, Sec. 2, eff. Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 555, Sec. 1, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 761, Sec. 3, eff. Sept. 1, 1993; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1995, 74th Leg., ch. 318, Sec. 24, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 189, Sec. 9, eff. May 21, 1997; Acts 1999, 76th Leg., ch. 685, Sec. 8, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 641, Sec. 3, eff. Sept. 1, 2003.
Amended by:
Acts 2005, 79th Leg., Ch. 1162, Sec. 5, eff. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch. 1163, Sec. 2, eff. September 1, 2007.
Acts 2009, 81st Leg., R.S., Ch. 153, Sec. 2, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch. 1130, Sec. 1, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch. 1357, Sec. 2, eff. September 1, 2009.

Section 71.01 - Definitions

Sec. 71.01. DEFINITIONS. In this chapter,
(a) "Combination" means three or more persons who collaborate in carrying on criminal activities, although:
     (1) participants may not know each other's identity;
     (2) membership in the combination may change from time to time; and
     (3) participants may stand in a wholesaler-retailer or other arm's-length relationship in illicit distribution operations.
(b) "Conspires to commit" means that a person agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense and that person and one or more of them perform an overt act in pursuance of the agreement. An agreement constituting conspiring to commit may be inferred from the acts of the parties.
(c) "Profits" means property constituting or derived from any proceeds obtained, directly or indirectly, from an offense listed in Section 71.02.
(d) "Criminal street gang" means three or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in the commission of criminal activities.

Added by Acts 1977, 65th Leg., p. 922, ch. 346, Sec. 1, eff. June 10, 1977. Amended by Acts 1989, 71st Leg., ch. 782, Sec. 1, eff. Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 555, Sec. 1, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1995, 74th Leg., ch. 318, Sec. 23, eff. Sept. 1, 1995.

Section 49.12 - Applicability to Certain Conduct

Sec. 49.12. APPLICABILITY TO CERTAIN CONDUCT. Sections 49.07 and 49.08 do not apply to injury to or the death of an unborn child if the conduct charged is conduct committed by the mother of the unborn child.

Added by Acts 2003, 78th Leg., ch. 822, Sec. 2.05, eff. Sept. 1, 2003.

Section 49.11 - Proof of Mental State Unnecessary

Sec. 49.11. PROOF OF MENTAL STATE UNNECESSARY. (a) Notwithstanding Section 6.02(b), proof of a culpable mental state is not required for conviction of an offense under this chapter.
(b) Subsection (a) does not apply to an offense under Section 49.031.

Added by Acts 1995, 74th Leg., ch. 318, Sec. 22, eff. Sept. 1, 1995. Amended by Acts 2001, 77th Leg., ch. 969, Sec. 4, eff. Sept. 1, 2001.

Section 49.10 - No Defense

Sec. 49.10. NO DEFENSE. In a prosecution under Section 49.03, 49.04, 49.045, 49.05, 49.06, 49.065, 49.07, or 49.08, the fact that the defendant is or has been entitled to use the alcohol, controlled substance, drug, dangerous drug, or other substance is not a defense.

Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 1999, 76th Leg., ch. 1364, Sec. 14, eff. Jan. 1, 2000; Acts 2003, 78th Leg., ch. 787, Sec. 3, eff. Sept. 1, 2003.

Cognate-Pleadings Test Applies to all Prosecutions

Murray v. State (Tex.Crim.App.)

In this case, the Court of Criminal Appeals affirmed the holding of the 14th Court of Appeals (Harris County), that the Cognate-Pleadings test for lesser-included offenses applies to all prosecutions, be they before judge or jury.

What is the Cognate-Pleadings test you ask?

Section 49.09 - Enhanced Offenses and Penalties

Sec. 49.09. ENHANCED OFFENSES AND PENALTIES. (a) Except as provided by Subsection (b), an offense under Section 49.04, 49.05, 49.06, or 49.065 is a Class A misdemeanor, with a minimum term of confinement of 30 days, if it is shown on the trial of the offense that the person has previously been convicted one time of an offense relating to the operating of a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, an offense of operating a watercraft while intoxicated, or an offense of operating or assembling an amusement ride while intoxicated.
(b) An offense under Section 49.04, 49.05, 49.06, or 49.065 is a felony of the third degree if it is shown on the trial of the offense that the person has previously been convicted:
     (1) one time of an offense under Section 49.08 or an offense under the laws of another state if the offense contains elements that are substantially similar to the elements of an offense under Section 49.08; or
     (2) two times of any other offense relating to the operating of a motor vehicle while intoxicated, operating an aircraft while intoxicated, operating a watercraft while intoxicated, or operating or assembling an amusement ride while intoxicated.
(b-1) An offense under Section 49.07 is a felony of the second degree if it is shown on the trial of the offense that the person caused serious bodily injury to a peace officer, a firefighter, or emergency medical services personnel while in the actual discharge of an official duty.
(b-2) An offense under Section 49.08 is a felony of the first degree if it is shown on the trial of the offense that the person caused the death of a person described by Subsection (b-1).
(b-3) For the purposes of Subsection (b-1):
     (1) "Emergency medical services personnel" has the meaning assigned by Section 773.003, Health and Safety Code.
      (2) "Firefighter" means:
           (A) an individual employed by this state or by a political or legal subdivision of this state who is subject to certification by the Texas Commission on Fire Protection; or
           (B) a member of an organized volunteer fire-fighting unit that:
               (i) renders fire-fighting services without remuneration; and
               (ii) conducts a minimum of two drills each month, each at least two hours long.
(c) For the purposes of this section:
    (1) "Offense relating to the operating of a motor vehicle while intoxicated" means:
          (A) an offense under Section 49.04 or 49.045;
          (B) an offense under Section 49.07 or 49.08, if the vehicle operated was a motor vehicle;
          (C) an offense under Article 6701l-1, Revised Statutes, as that law existed before September 1, 1994;
          (D) an offense under Article 6701l-2, Revised Statutes, as that law existed before January 1, 1984;
          (E) an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was a motor vehicle; or
          (F) an offense under the laws of another state that prohibit the operation of a motor vehicle while intoxicated.
      (2) "Offense of operating an aircraft while intoxicated" means:
          (A) an offense under Section 49.05;
          (B) an offense under Section 49.07 or 49.08, if the vehicle operated was an aircraft;
          (C) an offense under Section 1, Chapter 46, Acts of the 58th Legislature, Regular Session, 1963 (Article 46f-3, Vernon's Texas Civil Statutes), as that law existed before September 1, 1994;
          (D) an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was an aircraft; or
          (E) an offense under the laws of another state that prohibit the operation of an aircraft while intoxicated.
     (3) "Offense of operating a watercraft while intoxicated" means:
          (A) an offense under Section 49.06;
          (B) an offense under Section 49.07 or 49.08, if the vehicle operated was a watercraft;
          (C) an offense under Section 31.097, Parks and Wildlife Code, as that law existed before September 1, 1994;
          (D) an offense under Section 19.05(a)(2), as that law existed before September 1, 1994, if the vehicle operated was a watercraft; or
          (E) an offense under the laws of another state that prohibit the operation of a watercraft while intoxicated.
     (4) "Offense of operating or assembling an amusement ride while intoxicated" means:
          (A) an offense under Section 49.065;
          (B) an offense under Section 49.07 or 49.08, if the offense involved the operation or assembly of an amusement ride; or
                     (C) an offense under the law of another state that prohibits the operation of an amusement ride while intoxicated or the assembly of a mobile amusement ride while intoxicated.
(d) For the purposes of this section, a conviction for an offense under Section 49.04, 49.045, 49.05, 49.06, 49.065, 49.07, or 49.08 that occurs on or after September 1, 1994, is a final conviction, whether the sentence for the conviction is imposed or probated.
(e) Repealed by Acts 2005, 79th Leg., Ch. 996, Sec. 3, eff. September 1, 2005.
(f) Repealed by Acts 2005, 79th Leg., Ch. 996, Sec. 3, eff. September 1, 2005.
(g) A conviction may be used for purposes of enhancement under this section or enhancement under Subchapter D, Chapter 12, but not under both this section and Subchapter D.
(h) This subsection applies only to a person convicted of a second or subsequent offense relating to the operating of a motor vehicle while intoxicated committed within five years of the date on which the most recent preceding offense was committed. The court shall enter an order that requires the defendant to have a device installed, on each motor vehicle owned or operated by the defendant, that uses a deep-lung breath analysis mechanism to make impractical the operation of the motor vehicle if ethyl alcohol is detected in the breath of the operator, and that requires that before the first anniversary of the ending date of the period of license suspension under Section 521.344, Transportation Code, the defendant not operate any motor vehicle that is not equipped with that device. The court shall require the defendant to obtain the device at the defendant's own cost on or before that ending date, require the defendant to provide evidence to the court on or before that ending date that the device has been installed on each appropriate vehicle, and order the device to remain installed on each vehicle until the first anniversary of that ending date. If the court determines the offender is unable to pay for the device, the court may impose a reasonable payment schedule not to extend beyond the first anniversary of the date of installation. The Department of Public Safety shall approve devices for use under this subsection. Section 521.247, Transportation Code, applies to the approval of a device under this subsection and the consequences of that approval. Failure to comply with an order entered under this subsection is punishable by contempt. For the purpose of enforcing this subsection, the court that enters an order under this subsection retains jurisdiction over the defendant until the date on which the device is no longer required to remain installed. To the extent of a conflict between this subsection and Section 13(i), Article 42.12, Code of Criminal Procedure, this subsection controls.

Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 14.56, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 318, Sec. 21, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 1364, Sec. 12, 13, eff. Jan. 1, 2000; Acts 2001, 77th Leg., ch. 648, Sec. 1, 2, eff, Sept. 1, 2001; Acts 2001, 77th Leg., ch. 969, Sec. 3, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 787, Sec. 2, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1275, Sec. 2(117), eff. Sept. 1, 2003.
Amended by:
Acts 2005, 79th Leg., Ch. 996, Sec. 1, eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 996, Sec. 3, eff. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch. 662, Sec. 4, eff. September 1, 2007.

Section 49.08 - Intoxication Manslaughter

Sec. 49.08. INTOXICATION MANSLAUGHTER. (a) A person commits an offense if the person:
     (1) operates a motor vehicle in a public place, operates an aircraft, a watercraft, or an amusement ride, or assembles a mobile amusement ride; and
     (2) is intoxicated and by reason of that intoxication causes the death of another by accident or mistake.
(b) Except as provided by Section 49.09, an offense under this section is a felony of the second degree.

Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 1999, 76th Leg., ch. 1364, Sec. 11, eff. Jan. 1, 2000.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 662, Sec. 3, eff. September 1, 2007.

Section 49.07 - Intoxication Assault

Sec. 49.07. INTOXICATION ASSAULT. (a) A person commits an offense if the person, by accident or mistake:
     (1) while operating an aircraft, watercraft, or amusement ride while intoxicated, or while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another; or
     (2) as a result of assembling a mobile amusement ride while intoxicated causes serious bodily injury to another.
(b) In this section, "serious bodily injury" means injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.
(c) Except as provided by Section 49.09, an offense under this section is a felony of the third degree.

Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 1999, 76th Leg., ch. 1364, Sec. 10, eff. Jan. 1, 2000.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 662, Sec. 2, eff. September 1, 2007.

Section 49.065 - Assembling or Operating an Amusement Ride While Intoxicated

Sec. 49.065. ASSEMBLING OR OPERATING AN AMUSEMENT RIDE WHILE INTOXICATED. (a) A person commits an offense if the person is intoxicated while operating an amusement ride or while assembling a mobile amusement ride.
(b) Except as provided by Subsection (c) and Section 49.09, an offense under this section is a Class B misdemeanor with a minimum term of confinement of 72 hours.
(c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the amusement ride or assembling the mobile amusement ride had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor with a minimum term of confinement of six days.

Added by Acts 1999, 76th Leg., ch. 1364, Sec. 9, eff. Jan. 1, 2000.

Section 49.06 - Boating While Intoxicated

Sec. 49.06. BOATING WHILE INTOXICATED. (a) A person commits an offense if the person is intoxicated while operating a watercraft.
(b) Except as provided by Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.

Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Section 49.05 - Flying While Intoxicated

Sec. 49.05. FLYING WHILE INTOXICATED. (a) A person commits an offense if the person is intoxicated while operating an aircraft.
(b) Except as provided by Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.

Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Section 49.045 - Driving While Intoxicated with Child Passenger

Sec. 49.045. DRIVING WHILE INTOXICATED WITH CHILD PASSENGER. (a) A person commits an offense if:
     (1) the person is intoxicated while operating a motor vehicle in a public place; and
     (2) the vehicle being operated by the person is occupied by a passenger who is younger than 15 years of age.
(b) An offense under this section is a state jail felony.

Added by Acts 2003, 78th Leg., ch. 787, Sec. 1, eff. Sept. 1, 2003.

Section 49.04 - Driving While Intoxicated (DWI)

Sec. 49.04. DRIVING WHILE INTOXICATED. (a) A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.
(b) Except as provided by Subsection (c) and Section 49.09, an offense under this section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.
(c) If it is shown on the trial of an offense under this section that at the time of the offense the person operating the motor vehicle had an open container of alcohol in the person's immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days.

Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 14.55, eff. Sept. 1, 1995.

Section 49.031 - Possession of Alcoholic Beverage in Motor Vehicle

Sec. 49.031. POSSESSION OF ALCOHOLIC BEVERAGE IN MOTOR VEHICLE. (a) In this section:
     (1) "Open container" means a bottle, can, or other receptacle that contains any amount of alcoholic beverage and that is open, that has been opened, that has a broken seal, or the contents of which are partially removed.
     (2) "Passenger area of a motor vehicle" means the area of a motor vehicle designed for the seating of the operator and passengers of the vehicle. The term does not include:
          (A) a glove compartment or similar storage container that is locked;
          (B) the trunk of a vehicle; or
          (C) the area behind the last upright seat of the vehicle, if the vehicle does not have a trunk.
     (3) "Public highway" means the entire width between and immediately adjacent to the boundary lines of any public road, street, highway, interstate, or other publicly maintained way if any part is open for public use for the purpose of motor vehicle travel. The term includes the right-of-way of a public highway.
(b) A person commits an offense if the person knowingly possesses an open container in a passenger area of a motor vehicle that is located on a public highway, regardless of whether the vehicle is being operated or is stopped or parked. Possession by a person of one or more open containers in a single criminal episode is a single offense.
(c) It is an exception to the application of Subsection (b) that at the time of the offense the defendant was a passenger in:
     (1) the passenger area of a motor vehicle designed, maintained, or used primarily for the transportation of persons for compensation, including a bus, taxicab, or limousine; or
     (2) the living quarters of a motorized house coach or motorized house trailer, including a self-contained camper, a motor home, or a recreational vehicle.
(d) An offense under this section is a Class C misdemeanor.
(e) A peace officer charging a person with an offense under this section, instead of taking the person before a magistrate, shall issue to the person a written citation and notice to appear that contains the time and place the person must appear before a magistrate, the name and address of the person charged, and the offense charged. If the person makes a written promise to appear before the magistrate by signing in duplicate the citation and notice to appear issued by the officer, the officer shall release the person.

Added by Acts 2001, 77th Leg., ch. 969, Sec. 2, eff. Sept. 1, 2001.

Section 49.02 - Public Intoxication

Sec. 49.02. PUBLIC INTOXICATION. (a) A person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.
(a-1) For the purposes of this section, a premises licensed or permitted under the Alcoholic Beverage Code is a public place.
(b) It is a defense to prosecution under this section that the alcohol or other substance was administered for therapeutic purposes and as a part of the person's professional medical treatment by a licensed physician.
(c) Except as provided by Subsection (e), an offense under this section is a Class C misdemeanor.
(d) An offense under this section is not a lesser included offense under Section 49.04.
(e) An offense under this section committed by a person younger than 21 years of age is punishable in the same manner as if the minor committed an offense to which Section 106.071, Alcoholic Beverage Code, applies.

Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 1997, 75th Leg., ch. 1013, Sec. 12, eff. Sept. 1, 1997.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 68, Sec. 25, eff. September 1, 2007.

Section 49.01 - Definitions

Sec. 49.01. DEFINITIONS. In this chapter:
(1) "Alcohol concentration" means the number of grams of alcohol per:
     (A) 210 liters of breath;
     (B) 100 milliliters of blood; or
     (C) 67 milliliters of urine.
(2) "Intoxicated" means:
     (A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or
     (B) having an alcohol concentration of 0.08 or more.
(3) "Motor vehicle" has the meaning assigned by Section 32.34(a).
(4) "Watercraft" means a vessel, one or more water skis, an aquaplane, or another device used for transporting or carrying a person on water, other than a device propelled only by the current of water.
(5) "Amusement ride" has the meaning assigned by Section 2151.002, Occupations Code.
(6) "Mobile amusement ride" has the meaning assigned by Section 2151.002, Occupations Code.

Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 1999, 76th Leg., ch. 234, Sec. 1, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1364, Sec. 8, eff. Jan. 1, 2000; Acts 2001, 77th Leg., ch. 1420, Sec. 14.707, eff. Sept. 1, 2001.

Section 48.02 - Prohibition of the Purchase and Sale of Human Organs

Sec. 48.02. PROHIBITION OF THE PURCHASE AND SALE OF HUMAN ORGANS. (a) "Human organ" means the human kidney, liver, heart, lung, pancreas, eye, bone, skin, fetal tissue, or any other human organ or tissue, but does not include hair or blood, blood components (including plasma), blood derivatives, or blood reagents.
(b) A person commits an offense if he or she knowingly or intentionally offers to buy, offers to sell, acquires, receives, sells, or otherwise transfers any human organ for valuable consideration.
(c) It is an exception to the application of this section that the valuable consideration is: (1) a fee paid to a physician or to other medical personnel for services rendered in the usual course of medical practice or a fee paid for hospital or other clinical services; (2) reimbursement of legal or medical expenses incurred for the benefit of the ultimate receiver of the organ; or (3) reimbursement of expenses of travel, housing, and lost wages incurred by the donor of a human organ in connection with the donation of the organ.
(d) A violation of this section is a Class A misdemeanor.

Added by Acts 1985, 69th Leg., ch. 40, Sec. 1, eff. Aug. 26, 1985. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Section 48.015 - Prohibitions Relating to Certain Cigarettes

Sec. 48.015. PROHIBITIONS RELATING TO CERTAIN CIGARETTES. (a) A person may not acquire, hold, own, possess, or transport for sale or distribution in this state or import or cause to be imported into this state for sale or distribution in this state:
     (1) cigarettes that do not comply with all applicable requirements imposed by or under federal law and implementing regulations; or
     (2) cigarettes to which stamps may not be affixed under Section 154.0415, Tax Code, other than cigarettes lawfully imported or brought into the state for personal use and cigarettes lawfully sold or intended to be sold as duty-free merchandise by a duty-free sales enterprise in accordance with 19 U.S.C. Section 1555(b), as amended.
(b) A person who commits an act prohibited by Subsection (a), knowing or having reason to know that the person is doing so, is guilty of a Class A misdemeanor.

Added by Acts 2001, 77th Leg., ch. 1104, Sec. 6, eff. Sept. 1, 2001.

Section 48.01 - Smoking Tobacco

Sec. 48.01. SMOKING TOBACCO. (a) A person commits an offense if he is in possession of a burning tobacco product or smokes tobacco in a facility of a public primary or secondary school or an elevator, enclosed theater or movie house, library, museum, hospital, transit system bus, or intrastate bus, as defined by Section 541.201, Transportation Code, plane, or train which is a public place.
(b) It is a defense to prosecution under this section that the conveyance or public place in which the offense takes place does not have prominently displayed a reasonably sized notice that smoking is prohibited by state law in such conveyance or public place and that an offense is punishable by a fine not to exceed $500.
(c) All conveyances and public places set out in Subsection (a) of Section 48.01 shall be equipped with facilities for extinguishment of smoking materials and it shall be a defense to prosecution under this section if the conveyance or public place within which the offense takes place is not so equipped.
(d) It is an exception to the application of Subsection (a) if the person is in possession of the burning tobacco product or smokes tobacco exclusively within an area designated for smoking tobacco or as a participant in an authorized theatrical performance.
(e) An area designated for smoking tobacco on a transit system bus or intrastate plane or train must also include the area occupied by the operator of the transit system bus, plane, or train.
(f) An offense under this section is punishable as a Class C misdemeanor.

Added by Acts 1975, 64th Leg., p. 744, ch. 290, Sec. 1, eff. Sept. 1, 1975. Amended by Acts 1991, 72nd Leg., ch. 108, Sec. 2, eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1997, 75th Leg., ch. 165, Sec. 30.242, eff. Sept. 1, 1997.

Section 47.10 - American Documentation of Vessel Required

Sec. 47.10. AMERICAN DOCUMENTATION OF VESSEL REQUIRED. If 18 U.S.C. Section 1082 is repealed, the affirmative defenses provided by Section 47.09(b) apply only if the vessel is documented under the laws of the United States.

Added by Acts 1989, 71st Leg., ch. 1030, Sec. 4, eff. Sept. 1, 1989. Renumbered from Penal Code Sec. 47.12 by Acts 1990, 71st Leg., 6th C.S., ch. 12, Sec. 2(27), eff. Sept. 6, 1990. Renumbered from Penal Code Sec. 47.13 and amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Section 47.09 - Other Defenses

Sec. 47.09. OTHER DEFENSES. (a) It is a defense to prosecution under this chapter that the conduct:
     (1) was authorized under:
          (A) Chapter 2001, Occupations Code;
          (B) Chapter 2002, Occupations Code; or
          (C) the Texas Racing Act (Article 179e, Vernon's Texas Civil Statutes);
     (2) consisted entirely of participation in the state lottery authorized by Chapter 466, Government Code; or
     (3) was a necessary incident to the operation of the state lottery and was directly or indirectly authorized by:
          (A) Chapter 466, Government Code;
          (B) the lottery division of the Texas Lottery Commission;
          (C) the Texas Lottery Commission; or
          (D) the director of the lottery division of the Texas Lottery Commission.
(b) It is an affirmative defense to prosecution under Sections 47.04, 47.06(a), and 47.06(c) that the gambling device, equipment, or paraphernalia is aboard an ocean-going vessel that enters the territorial waters of this state to call at a port in this state if:
     (1) before the vessel enters the territorial waters of this state, the district attorney or, if there is no district attorney, the county attorney for the county in which the port is located receives notice of the existence of the device, equipment, or paraphernalia on board the vessel and of the anticipated dates on which the vessel will enter and leave the territorial waters of this state;
     (2) at all times while the vessel is in the territorial waters of this state all devices, equipment, or paraphernalia are disabled, electronically or by another method, from a remote and secured area of the vessel in a manner that allows only the master or crew of the vessel to remove any disabling device;
     (3) at all times while the vessel is in the territorial waters of this state any disabling device is not removed except for the purposes of inspecting or repairing the device, equipment, or paraphernalia; and
     (4) the device, equipment, or paraphernalia is not used for gambling or other gaming purposes while the vessel is in the territorial waters of this state.

Added by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 14.54, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 111, Sec. 1, eff. May 16, 1997; Acts 1997, 75th Leg., ch. 1035, Sec. 55, eff. June 19, 1997; Acts 1999, 76th Leg., ch. 844, Sec. 1, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1420, Sec. 14.835, eff. Sept. 1, 2001.

Section 47.08 - Testimonial Immunity

Sec. 47.08. TESTIMONIAL IMMUNITY. (a) A party to an offense under this chapter may be required to furnish evidence or testify about the offense.
(b) A party to an offense under this chapter may not be prosecuted for any offense about which he is required to furnish evidence or testify, and the evidence and testimony may not be used against the party in any adjudicatory proceeding except a prosecution for aggravated perjury.
(c) For purposes of this section, "adjudicatory proceeding" means a proceeding before a court or any other agency of government in which the legal rights, powers, duties, or privileges of specified parties are determined.
(d) A conviction under this chapter may be had upon the uncorroborated testimony of a party to the offense.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Renumbered from Penal Code Sec. 47.09 by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Section 47.07 - Evidence

Sec. 47.07. EVIDENCE. In any prosecution under this chapter in which it is relevant to prove the occurrence of a sporting event, a published report of its occurrence in a daily newspaper, magazine, or other periodically printed publication of general circulation shall be admissible in evidence and is prima facie evidence that the event occurred.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Renumbered from Penal Code Sec. 47.08 and amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Section 47.06 - Possession of Gambling Device, Equipment, or Paraphernalia

Sec. 47.06. POSSESSION OF GAMBLING DEVICE, EQUIPMENT, OR PARAPHERNALIA. (a) A person commits an offense if, with the intent to further gambling, he knowingly owns, manufactures, transfers, or possesses any gambling device that he knows is designed for gambling purposes or any equipment that he knows is designed as a subassembly or essential part of a gambling device.
(b) A person commits an offense if, with the intent to further gambling, he knowingly owns, manufactures, transfers commercially, or possesses any altered gambling equipment that he knows is designed for gambling purposes or any equipment that he knows is designed as a subassembly or essential part of such device.
(c) A person commits an offense if, with the intent to further gambling, the person knowingly owns, manufactures, transfers commercially, or possesses gambling paraphernalia.
(d) It is a defense to prosecution under Subsections (a) and (c) that:
     (1) the device, equipment, or paraphernalia is used for or is intended for use in gambling that is to occur entirely in a private place;
     (2) a person involved in the gambling does not receive any economic benefit other than personal winnings; and
     (3) except for the advantage of skill or luck, the chance of winning is the same for all participants.
(e) An offense under this section is a Class A misdemeanor.
(f) It is a defense to prosecution under Subsection (a) or (c) that the person owned, manufactured, transferred, or possessed the gambling device, equipment, or paraphernalia for the sole purpose of shipping it to another jurisdiction where the possession or use of the device, equipment, or paraphernalia was legal.
(g) A district or county attorney is not required to have a search warrant or subpoena to inspect a gambling device or gambling equipment or paraphernalia on an ocean-going vessel that enters the territorial waters of this state to call at a port in this state.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1977, 65th Leg., p. 668, ch. 251, Sec. 2, eff. Aug. 29, 1977; Acts 1977, 65th Leg., p. 1865, ch. 741, Sec. 1, eff. Aug. 29, 1977; Acts 1987, 70th Leg., ch. 167, Sec. 5.01(a)(48), eff. Sept. 1, 1987; Acts 1987, 70th Leg., ch. 458, Sec. 1, eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 1030, Sec. 2, eff. Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 44, Sec. 1, eff. Aug. 26, 1991; Acts 1991, 72nd Leg., ch. 315, Sec. 1, eff. Sept. 1, 1991; Acts 1991, 72nd Leg., 1st C.S., ch. 6, Sec. 4; Acts 1993, 73rd Leg., ch. 107, Sec. 4.05, eff. Aug. 30, 1993; Acts 1993, 73rd Leg., ch. 284, Sec. 30, eff. Sept. 1, 1993; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Section 47.05 - Communicating Gambling Information

Sec. 47.05. COMMUNICATING GAMBLING INFORMATION. (a) A person commits an offense if, with the intent to further gambling, he knowingly communicates information as to bets, betting odds, or changes in betting odds or he knowingly provides, installs, or maintains equipment for the transmission or receipt of such information.
(b) It is an exception to the application of Subsection (a) that the information communicated is intended for use in placing a lawful wager under Article 11, Texas Racing Act (Article 179e, Vernon's Texas Civil Statutes), and is not communicated in violation of Section 14.01 of that Act.
(c) An offense under this section is a Class A misdemeanor.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Section 47.04 - Keeping a Gambling Place

Sec. 47.04. KEEPING A GAMBLING PLACE. (a) A person commits an offense if he knowingly uses or permits another to use as a gambling place any real estate, building, room, tent, vehicle, boat, or other property whatsoever owned by him or under his control, or rents or lets any such property with a view or expectation that it be so used.
(b) It is an affirmative defense to prosecution under this section that:
     (1) the gambling occurred in a private place;
     (2) no person received any economic benefit other than personal winnings; and
     (3) except for the advantage of skill or luck, the risks of losing and the chances of winning were the same for all participants.
(c) An offense under this section is a Class A misdemeanor.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1977, 65th Leg., p. 667, ch. 251, Sec. 1, eff. Aug. 29, 1977. Acts 1989, 71st Leg., ch. 1030, Sec. 1, eff. Sept. 1, 1989. Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Section 47.03 - Gambling Promotion

Sec. 47.03. GAMBLING PROMOTION. (a) A person commits an offense if he intentionally or knowingly does any of the following acts:
     (1) operates or participates in the earnings of a gambling place;
     (2) engages in bookmaking;
     (3) for gain, becomes a custodian of anything of value bet or offered to be bet;
     (4) sells chances on the partial or final result of or on the margin of victory in any game or contest or on the performance of any participant in any game or contest or on the result of any political nomination, appointment, or election or on the degree of success of any nominee, appointee, or candidate; or
     (5) for gain, sets up or promotes any lottery or sells or offers to sell or knowingly possesses for transfer, or transfers any card, stub, ticket, check, or other device designed to serve as evidence of participation in any lottery.
(b) An offense under this section is a Class A misdemeanor.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1987, 70th Leg., ch. 313, Sec. 3, eff. Sept. 1, 1987; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Section 47.02 - Gambling

Sec. 47.02. GAMBLING. (a) A person commits an offense if he:
     (1) makes a bet on the partial or final result of a game or contest or on the performance of a participant in a game or contest;
     (2) makes a bet on the result of any political nomination, appointment, or election or on the degree of success of any nominee, appointee, or candidate; or
     (3) plays and bets for money or other thing of value at any game played with cards, dice, balls, or any other gambling device.
(b) It is a defense to prosecution under this section that:
     (1) the actor engaged in gambling in a private place;
     (2) no person received any economic benefit other than personal winnings; and
     (3) except for the advantage of skill or luck, the risks of losing and the chances of winning were the same for all participants.
(c) It is a defense to prosecution under this section that the actor reasonably believed that the conduct:
     (1) was permitted under Chapter 2001, Occupations Code;
     (2) was permitted under Chapter 2002, Occupations Code;
     (3) consisted entirely of participation in the state lottery authorized by the State Lottery Act (Chapter 466, Government Code);
     (4) was permitted under the Texas Racing Act (Article 179e, Vernon's Texas Civil Statutes); or
     (5) consisted entirely of participation in a drawing for the opportunity to participate in a hunting, fishing, or other recreational event conducted by the Parks and Wildlife Department.
(d) An offense under this section is a Class C misdemeanor.
(e) It is a defense to prosecution under this section that a person played for something of value other than money using an electronic, electromechanical, or mechanical contrivance excluded from the definition of "gambling device" under Section 47.01(4)(B).

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1981, 67th Leg., 1st C.S., p. 101, ch. 11, Sec. 43, eff. Nov. 10, 1981; Acts 1989, 71st Leg., ch. 957, Sec. 2, eff. Jan. 1, 1990; Acts 1991, 72nd Leg., 1st C.S., ch. 6, Sec. 3; Acts 1993, 73rd Leg., ch. 107, Sec. 4.04, eff. Aug. 30, 1993; Acts 1993, 73rd Leg., ch. 774, Sec. 2, eff. Aug. 30, 1993. Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1995, 74th Leg., ch. 76, Sec. 14.53, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 318, Sec. 20, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 931, Sec. 79, eff. June 16, 1995; Acts 1997, 75th Leg., ch. 1256, Sec. 124, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 1420, Sec. 14.834, eff. Sept. 1, 2001.

Section 47.01 - Definitions

Sec. 47.01. DEFINITIONS. In this chapter:
(1) "Bet" means an agreement to win or lose something of value solely or partially by chance. A bet does not include:
     (A) contracts of indemnity or guaranty, or life, health, property, or accident insurance;
     (B) an offer of a prize, award, or compensation to the actual contestants in a bona fide contest for the determination of skill, speed, strength, or endurance or to the owners of animals, vehicles, watercraft, or aircraft entered in a contest; or
     (C) an offer of merchandise, with a value not greater than $25, made by the proprietor of a bona fide carnival contest conducted at a carnival sponsored by a nonprofit religious, fraternal, school, law enforcement, youth, agricultural, or civic group, including any nonprofit agricultural or civic group incorporated by the state before 1955, if the person to receive the merchandise from the proprietor is the person who performs the carnival contest.
(2) "Bookmaking" means:
     (A) to receive and record or to forward more than five bets or offers to bet in a period of 24 hours;
     (B) to receive and record or to forward bets or offers to bet totaling more than $1,000 in a period of 24 hours; or
     (C) a scheme by three or more persons to receive, record, or forward a bet or an offer to bet.
(3) "Gambling place" means any real estate, building, room, tent, vehicle, boat, or other property whatsoever, one of the uses of which is the making or settling of bets, bookmaking, or the conducting of a lottery or the playing of gambling devices.
(4) "Gambling device" means any electronic, electromechanical, or mechanical contrivance not excluded under Paragraph (B) that for a consideration affords the player an opportunity to obtain anything of value, the award of which is determined solely or partially by chance, even though accompanied by some skill, whether or not the prize is automatically paid by the contrivance. The term:
     (A) includes, but is not limited to, gambling device versions of bingo, keno, blackjack, lottery, roulette, video poker, or similar electronic, electromechanical, or mechanical games, or facsimiles thereof, that operate by chance or partially so, that as a result of the play or operation of the game award credits or free games, and that record the number of free games or credits so awarded and the cancellation or removal of the free games or credits; and
     (B) does not include any electronic, electromechanical, or mechanical contrivance designed, made, and adapted solely for bona fide amusement purposes if the contrivance rewards the player exclusively with noncash merchandise prizes, toys, or novelties, or a representation of value redeemable for those items, that have a wholesale value available from a single play of the game or device of not more than 10 times the amount charged to play the game or device once or $5, whichever is less.
(5) "Altered gambling equipment" means any contrivance that has been altered in some manner, including, but not limited to, shaved dice, loaded dice, magnetic dice, mirror rings, electronic sensors, shaved cards, marked cards, and any other equipment altered or designed to enhance the actor's chances of winning.
(6) "Gambling paraphernalia" means any book, instrument, or apparatus by means of which bets have been or may be recorded or registered; any record, ticket, certificate, bill, slip, token, writing, scratch sheet, or other means of carrying on bookmaking, wagering pools, lotteries, numbers, policy, or similar games.
(7) "Lottery" means any scheme or procedure whereby one or more prizes are distributed by chance among persons who have paid or promised consideration for a chance to win anything of value, whether such scheme or procedure is called a pool, lottery, raffle, gift, gift enterprise, sale, policy game, or some other name.
(8) "Private place" means a place to which the public does not have access, and excludes, among other places, streets, highways, restaurants, taverns, nightclubs, schools, hospitals, and the common areas of apartment houses, hotels, motels, office buildings, transportation facilities, and shops.
(9) "Thing of value" means any benefit, but does not include an unrecorded and immediate right of replay not exchangeable for value.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1987, 70th Leg., ch. 313, Sec. 1, 2, eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 396, Sec. 1, eff. June 14, 1989; Acts 1993, 73rd Leg., ch. 774, Sec. 1, eff. Aug. 30, 1993; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1995, 74th Leg., ch. 318, Sec. 19, eff. Sept. 1, 1995.

Section 46.15 - Nonapplicability

Sec. 46.15. NONAPPLICABILITY. (a) 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) a judge or justice of a federal court, the supreme court, the court of criminal appeals, a court of appeals, a district court, a criminal district court, a constitutional county court, a statutory county court, a justice court, or a municipal court who is licensed to carry a concealed handgun under Subchapter H, Chapter 411, Government Code;
     (5) an honorably retired peace officer or federal criminal investigator who holds a certificate of proficiency issued under Section 1701.357, Occupations Code, and is carrying a photo identification that:
          (A) verifies that the officer honorably retired after not less than 15 years of service as a commissioned officer; and
          (B) is issued by a state or local law enforcement agency;
     (6) a district attorney, criminal district attorney, county attorney, or municipal attorney who is licensed to carry a concealed 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 concealed 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 concealed handgun under 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.
(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 431.001, 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 or motor vehicle, 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 concealed handgun and a valid license issued under Subchapter H, Chapter 411, Government Code, to carry a concealed handgun of the same category as the handgun the person is carrying;
     (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.
(c) The provision of Section 46.02 prohibiting the carrying of a club does not apply to a noncommissioned security guard at an institution of higher education who carries a nightstick or similar club, and who has undergone 15 hours of training in the proper use of the club, including at least seven hours of training in the use of the club for nonviolent restraint. For the purposes of this subsection, "nonviolent restraint" means the use of reasonable force, not intended and not likely to inflict bodily injury.
(d) The provisions of Section 46.02 prohibiting the carrying of a firearm or carrying of a club do not apply to a public security officer employed by the adjutant general under Section 431.029, Government Code, in performance of official duties or while traveling to or from a place of duty.
(e) The provisions of Section 46.02 prohibiting the carrying of an illegal knife do not apply to an individual carrying a bowie knife or a sword used in a historical demonstration or in a ceremony in which the knife or sword is significant to the performance of the ceremony.
(f) Section 46.03(a)(6) does not apply to a person who possesses a firearm or club while in the actual discharge of official duties as:
     (1) a member of the armed forces or state military forces, as defined by Section 431.001, Government Code; or
     (2) an employee of a penal institution.
(g) The provisions of Sections 46.02 and 46.03 prohibiting the possession or carrying of a club do not apply to an animal control officer who holds a certificate issued under Section 829.006, Health and Safety Code, and who possesses or carries an instrument used specifically for deterring the bite of an animal while the officer is in the performance of official duties under the Health and Safety Code or is traveling to or from a place of duty.
(h) Repealed by Acts 2007, 80th Leg., R.S., Ch. 693, Sec. 3(1), eff. September 1, 2007.
(i) Repealed by Acts 2007, 80th Leg., R.S., Ch. 693, Sec. 3(2), eff. September 1, 2007.
(j) The provisions of Section 46.02 prohibiting the carrying of a handgun do not apply to an individual who carries a handgun as a participant in a historical reenactment performed in accordance with the rules of the Texas Alcoholic Beverage Commission.

Added by Acts 1995, 74th Leg., ch. 318, Sec. 18, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1221, Sec. 4, eff. June 20, 1997; Acts 1997, 75th Leg., ch. 1261, Sec. 28, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 62, Sec. 9.25, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1445, Sec. 2, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1060, Sec. 3, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 325, Sec. 2, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 421, Sec. 1, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 795, Sec. 1, eff. June 20, 2003.
Amended by:
Acts 2005, 79th Leg., Ch. 288, Sec. 1, eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 728, Sec. 23.001(78), eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 976, Sec. 4, eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 1093, Sec. 1, eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 1093, Sec. 4, eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 1179, Sec. 2, eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 1179, Sec. 3, eff. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch. 647, Sec. 1, eff. September 1, 2007.
Acts 2007, 80th Leg., R.S., Ch. 693, Sec. 2, eff. September 1, 2007.
Acts 2007, 80th Leg., R.S., Ch. 693, Sec. 3(1), eff. September 1, 2007.
Acts 2007, 80th Leg., R.S., Ch. 693, Sec. 3(2), eff. September 1, 2007.
Acts 2007, 80th Leg., R.S., Ch. 921, Sec. 17.001(62), eff. September 1, 2007.
Acts 2007, 80th Leg., R.S., Ch. 1048, Sec. 3, eff. September 1, 2007.
Acts 2007, 80th Leg., R.S., Ch. 1214, Sec. 1, eff. June 15, 2007.
Acts 2007, 80th Leg., R.S., Ch. 1222, Sec. 6, eff. June 15, 2007.
Acts 2009, 81st Leg., R.S., Ch. 87, Sec. 19.004, eff. September 1, 2009.
Acts 2009, 81st Leg., R.S., Ch. 299, Sec. 1, eff. June 19, 2009.
Acts 2009, 81st Leg., R.S., Ch. 794, Sec. 4, eff. June 19, 2009.
Acts 2009, 81st Leg., R.S., Ch. 1146, Sec. 4B.22, eff. September 1, 2009.

Section 46.14 - Firearm Smuggling

Sec. 46.14. FIREARM SMUGGLING. (a) A person commits an offense if the person knowingly engages in the business of transporting or transferring a firearm that the person knows was acquired in violation of the laws of any state or of the United States. For purposes of this subsection, a person is considered to engage in the business of transporting or transferring a firearm if the person engages in that conduct:
     (1) on more than one occasion; or
     (2) for profit or any other form of remuneration.
(b) An offense under this section is a felony of the third degree, unless it is shown on the trial of the offense that the offense was committed with respect to three or more firearms in a single criminal episode, in which event the offense is a felony of the second degree.
(c) This section does not apply to a peace officer who is engaged in the actual discharge of an official duty.
(d) If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section, the other law, or both.

Added by Acts 2009, 81st Leg., R.S., Ch. 153, Sec. 1, eff. September 1, 2009.

Section 46.13 - Making a Firearm Accessible to a Child

Sec. 46.13. MAKING A FIREARM ACCESSIBLE TO A CHILD. (a) In this section:
     (1) "Child" means a person younger than 17 years of age.
     (2) "Readily dischargeable firearm" means a firearm that is loaded with ammunition, whether or not a round is in the chamber.
     (3) "Secure" 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.
(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, as defined by Section 71.003, Family Code, 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."

Added by Acts 1995, 74th Leg., ch. 83, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1999, 76th Leg., ch. 62, Sec. 15.02(g), eff. Sept. 1, 1999.

Section 46.12 - Maps as Evidence of Location or Area

Sec. 46.12. MAPS AS EVIDENCE OF LOCATION OR AREA. (a) In a prosecution of an offense for which punishment is increased under Section 46.11, a map produced or reproduced by a municipal or county engineer for the purpose of showing the location and boundaries of weapon-free zones is admissible in evidence and is prima facie evidence of the location or boundaries of those areas if the governing body of the municipality or county adopts a resolution or ordinance approving the map as an official finding and record of the location or boundaries of those areas.
(b) A municipal or county engineer may, on request of the governing body of the municipality or county, revise a map that has been approved by the governing body of the municipality or county as provided by Subsection (a).
(c) A municipal or county engineer shall file the original or a copy of every approved or revised map approved as provided by Subsection (a) with the county clerk of each county in which the area is located.
(d) This section does not prevent the prosecution from:
     (1) introducing or relying on any other evidence or testimony to establish any element of an offense for which punishment is increased under Section 46.11; or
     (2) using or introducing any other map or diagram otherwise admissible under the Texas Rules of Evidence.

Added by Acts 1995, 74th Leg., ch. 320, Sec. 2, eff. Sept. 1, 1995.
Amended by:
Acts 2005, 79th Leg., Ch. 728, Sec. 16.004, eff. September 1, 2005.

Section 46.11 - Penalty if Offense Committed Within Weapon-Free School Zone

Sec. 46.11. PENALTY IF OFFENSE COMMITTED WITHIN WEAPON-FREE SCHOOL ZONE. (a) Except as provided by Subsection (b), the punishment prescribed for an offense under this chapter is increased to the punishment prescribed for the next highest category of offense if it is shown beyond a reasonable doubt on the trial of the offense that the actor committed the offense in a place that the actor knew was:
     (1) within 300 feet of the premises of a school; or
     (2) on premises where:
          (A) an official school function is taking place; or
          (B) an event sponsored or sanctioned by the University Interscholastic League is taking place.
(b) This section does not apply to an offense under Section 46.03(a)(1).
(c) In this section:
     (1) "Institution of higher education" and "premises" have the meanings assigned by Section 481.134, Health and Safety Code.
     (2) "School" means a private or public elementary or secondary school.

Added by Acts 1995, 74th Leg., ch. 320, Sec. 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1063, Sec. 10, eff. Sept. 1, 1997.

Section 46.10 - Deadly Weapon in Penal Institution

Sec. 46.10. DEADLY WEAPON IN PENAL INSTITUTION. (a) A person commits an offense if, while confined in a penal institution, he intentionally, knowingly, or recklessly:
     (1) carries on or about his person a deadly weapon; or
     (2) possesses or conceals a deadly weapon in the penal institution.
(b) It is an affirmative defense to prosecution under this section that at the time of the offense the actor was engaged in conduct authorized by an employee of the penal institution.
(c) A person who is subject to prosecution under both this section and another section under this chapter may be prosecuted under either section.
(d) An offense under this section is a felony of the third degree.

Added by Acts 1985, 69th Leg., ch. 46, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., ch. 714, Sec. 1, eff. Sept. 1, 1987. Renumbered from Penal Code Sec. 46.11 by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Section 46.09 - Components of Explosives

Sec. 46.09. COMPONENTS OF EXPLOSIVES. (a) A person commits an offense if the person knowingly possesses components of an explosive weapon with the intent to combine the components into an explosive weapon for use in a criminal endeavor.
(b) An offense under this section is a felony of the third degree.

Added by Acts 1983, 68th Leg., p. 4832, ch. 852, Sec. 4, eff. Sept. 1, 1983. Renumbered from Penal Code Sec. 46.10 by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Section 46.08 - Hoax Bombs

Sec. 46.08. HOAX BOMBS. (a) A person commits an offense if the person knowingly manufactures, sells, purchases, transports, or possesses a hoax bomb with intent to use the hoax bomb to:
     (1) make another believe that the hoax bomb is an explosive or incendiary device; or
     (2) cause alarm or reaction of any type by an official of a public safety agency or volunteer agency organized to deal with emergencies.
(b) An offense under this section is a Class A misdemeanor.

Added by Acts 1983, 68th Leg., p. 4831, ch. 852, Sec. 3, eff. Sept. 1, 1983. Renumbered from Penal Code Sec. 46.09 by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Section 46.07 - Interstate Purchase

Sec. 46.07. INTERSTATE PURCHASE. A resident of this state may, if not otherwise precluded by law, purchase firearms, ammunition, reloading components, or firearm accessories in another state. This authorization is enacted in conformance with 18 U.S.C. Section 922(b)(3)(A).

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Renumbered from Penal Code Sec. 46.08 by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Amended by:
Acts 2009, 81st Leg., R.S., Ch. 280, Sec. 1, eff. May 30, 2009.

Section 46.06 - Unlawful Transfer of Certain Weapons

Sec. 46.06. UNLAWFUL TRANSFER OF CERTAIN WEAPONS. (a) A person commits an offense if the person:
     (1) sells, rents, leases, loans, or gives a handgun to any person knowing that the person to whom the handgun is to be delivered intends to use it unlawfully or in the commission of an unlawful act;
     (2) intentionally or knowingly sells, rents, leases, or gives or offers to sell, rent, lease, or give to any child younger than 18 years any firearm, club, or illegal knife;
     (3) intentionally, knowingly, or recklessly sells a firearm or ammunition for a firearm to any person who is intoxicated;
     (4) knowingly sells a firearm or ammunition for a firearm to any person who has been convicted of a felony before the fifth anniversary of the later of the following dates:
          (A) the person's release from confinement following conviction of the felony; or
          (B) the person's release from supervision under community supervision, parole, or mandatory supervision following conviction of the felony;
     (5) sells, rents, leases, loans, or gives a handgun to any person knowing that an active protective order is directed to the person to whom the handgun is to be delivered; or
     (6) knowingly purchases, rents, leases, or receives as a loan or gift from another a handgun while an active protective order is directed to the actor.
(b) In this section:
     (1) "Intoxicated" means substantial impairment of mental or physical capacity resulting from introduction of any substance into the body.
     (2) "Active protective order" means a protective order issued under Title 4, Family Code, that is in effect. The term does not include a temporary protective order issued before the court holds a hearing on the matter.
(c) It is an affirmative defense to prosecution under Subsection (a)(2) that the transfer was to a minor whose parent or the person having legal custody of the minor had given written permission for the sale or, if the transfer was other than a sale, the parent or person having legal custody had given effective consent.
(d) An offense under this section is a Class A misdemeanor, except that an offense under Subsection (a)(2) is a state jail felony if the weapon that is the subject of the offense is a handgun.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1985, 69th Leg., ch. 686, Sec. 1, eff. Sept. 1, 1985. Renumbered from Penal Code Sec. 46.07 and amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 1995, 74th Leg., ch. 324, Sec. 1, eff. Jan. 1, 1996; Acts 1997, 75th Leg., ch. 1193, Sec. 22, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1304, Sec. 1, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 62, Sec. 15.02(f), eff. Sept. 1, 1999.

Section 46.05 - Prohibited Weapons

Sec. 46.05. PROHIBITED WEAPONS. (a) A person commits an offense if he intentionally or knowingly possesses, manufactures, transports, repairs, or sells:
     (1) an explosive weapon;
     (2) a machine gun;
     (3) a short-barrel firearm;
     (4) a firearm silencer;
     (5) a switchblade knife;
     (6) knuckles;
     (7) armor-piercing ammunition;
     (8) a chemical dispensing device; or
     (9) a zip gun.
(b) It is a defense to prosecution under this section that the actor's 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.
(c) It is a defense to prosecution under this section that the actor's possession was pursuant to registration pursuant to the National Firearms Act, as amended.
(d) It is an affirmative defense to prosecution under this section that the actor's conduct:
     (1) was incidental to dealing with a switchblade knife, springblade knife, or short-barrel firearm solely as an antique or curio; or
     (2) was incidental to dealing with armor-piercing ammunition solely for the purpose of making the ammunition available to an organization, agency, or institution listed in Subsection (b).
(e) An offense under this section is a felony of the third degree unless it is committed under Subsection (a)(5) or (a)(6), in which event, it is a Class A misdemeanor.
(f) It is a defense to prosecution under this section for the possession of a chemical dispensing device that the actor is a security officer and has received training on the use of the chemical dispensing device by a training program that is:
     (1) provided by the Commission on Law Enforcement Officer Standards and Education; or
     (2) approved for the purposes described by this subsection by the Texas Private Security Board of the Department of Public Safety.
(g) In Subsection (f), "security officer" means a commissioned security officer as defined by Section 1702.002, Occupations Code, or a noncommissioned security officer registered under Section 1702.221, Occupations Code.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1975, 64th Leg., p. 918, ch. 342, Sec. 15, eff. Sept. 1, 1975; Acts 1983, 68th Leg., p. 2650, ch. 457, Sec. 2, eff. Sept. 1, 1983; Acts 1983, 68th Leg., p. 4831, ch. 852, Sec. 2, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 167, Sec. 5.01(a)(47), eff. Sept. 1, 1987; Acts 1991, 72nd Leg., ch. 229, Sec. 2, eff. Sept. 1, 1991; Renumbered from Penal Code Sec. 46.06 and amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 2003, 78th Leg., ch. 1071, Sec. 1, eff. Sept. 1, 2003.
Amended by:
Acts 2005, 79th Leg., Ch. 1035, Sec. 2.01, eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 1278, Sec. 7, eff. September 1, 2005.

Section 46.041 - Unlawful Possession of Metal or Body Armor by Felon

Sec. 46.041. UNLAWFUL POSSESSION OF METAL OR BODY ARMOR BY FELON. (a) In this section, "metal or body armor" means any body covering manifestly designed, made, or adapted for the purpose of protecting a person against gunfire.
(b) A person who has been convicted of a felony commits an offense if after the conviction the person possesses metal or body armor.
(c) An offense under this section is a felony of the third degree.

Added by Acts 2001, 77th Leg., ch. 452, Sec. 1, eff. Sept. 1, 2001.

Section 46.04 - Unlawful Possession of Firearm

Sec. 46.04. UNLAWFUL POSSESSION OF FIREARM. (a) A person who has been convicted of a felony commits an offense if he possesses a firearm:
     (1) after conviction and before the fifth anniversary of the person's release from confinement following conviction of the felony or the person's release from supervision under community supervision, parole, or mandatory supervision, whichever date is later; or
     (2) after the period described by Subdivision (1), at any location other than the premises at which the person lives.
(b) A person who has been convicted of an offense under Section 22.01, punishable as a Class A misdemeanor and involving a member of the person's family or household, commits an offense if the person possesses a firearm before the fifth anniversary of the later of:
     (1) the date of the person's release from confinement following conviction of the misdemeanor; or
     (2) the date of the person's release from community supervision following conviction of the misdemeanor.
(c) A person, other than a peace officer, as defined by Section 1.07, actively engaged in employment as a sworn, full-time paid employee of a state agency or political subdivision, who is subject to an order issued under Section 6.504 or Chapter 85, Family Code, under Article 17.292 or Chapter 7A, Code of Criminal Procedure, or by another jurisdiction as provided by Chapter 88, Family Code, commits an offense if the person possesses a firearm after receiving notice of the order and before expiration of the order.
(d) In this section, "family," "household," and "member of a household" have the meanings assigned by Chapter 71, Family Code.
(e) An offense under Subsection (a) is a felony of the third degree. An offense under Subsection (b) or (c) is a Class A misdemeanor.
(f) For the purposes of this section, an offense under the laws of this state, another state, or the United States is, except as provided by Subsection (g), a felony if, at the time it is committed, the offense:
     (1) is designated by a law of this state as a felony;
     (2) contains all the elements of an offense designated by a law of this state as a felony; or
     (3) is punishable by confinement for one year or more in a penitentiary.
(g) An offense is not considered a felony for purposes of Subsection (f) if, at the time the person possesses a firearm, the offense:
     (1) is not designated by a law of this state as a felony; and
     (2) does not contain all the elements of any offense designated by a law of this state as a felony.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Renumbered from Penal Code Sec. 46.05 and amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994. Amended by Acts 2001, 77th Leg., ch. 23, Sec. 2, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 836, Sec. 4, eff. Sept. 1, 2003.
Amended by:
Acts 2009, 81st Leg., R.S., Ch. 1146, Sec. 11.24, eff. September 1, 2009.

Section 46.035 - Unlawful Carrying of Handgun by License Holder

Sec. 46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER. (a) A license holder commits an offense if the license holder carries a handgun on or about the license holder's person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally fails to conceal the handgun.
(b) A license holder commits an offense if the license holder intentionally, knowingly, or recklessly carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, regardless of whether the handgun is concealed, on or about the license holder's person:
     (1) on the premises of a business that has a permit or license issued under Chapter 25, 28, 32, 69, or 74, Alcoholic Beverage Code, if the business derives 51 percent or more of its income from the sale or service of alcoholic beverages for on-premises consumption, as determined by the Texas Alcoholic Beverage Commission under Section 104.06, Alcoholic Beverage Code;
     (2) on the premises where a high school, collegiate, or professional sporting event or interscholastic event is taking place, unless the license holder is a participant in the event and a handgun is used in the event;
     (3) on the premises of a correctional facility;
     (4) on the premises of a hospital licensed under Chapter 241, Health and Safety Code, or on the premises of a nursing home licensed under Chapter 242, Health and Safety Code, unless the license holder has written authorization of the hospital or nursing home administration, as appropriate;
     (5) in an amusement park; or
     (6) on the premises of a church, synagogue, or other established place of religious worship.
(c) A license holder commits an offense if the license holder intentionally, knowingly, or recklessly carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, regardless of whether the handgun is concealed, at any meeting of a governmental entity.
(d) A license holder commits an offense if, while intoxicated, the license holder carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, regardless of whether the handgun is concealed.
(e) A license holder who is licensed as a security officer under Chapter 1702, Occupations Code, and employed as a security officer commits an offense if, while in the course and scope of the security officer's employment, the security officer violates a provision of Subchapter H, Chapter 411, Government Code.
(f) In this section:
     (1) "Amusement park" means a permanent indoor or outdoor facility or park where amusement rides are available for use by the public that is located in a county with a population of more than one million, encompasses at least 75 acres in surface area, is enclosed with access only through controlled entries, is open for operation more than 120 days in each calendar year, and has security guards on the premises at all times. The term does not include any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area.
     (2) "License holder" means a person licensed to carry a handgun under Subchapter H, Chapter 411, Government Code.
     (3) "Premises" means a building or a portion of a building. The term does not include any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area.
(g) An offense under Subsection (a), (b), (c), (d), or (e) is a Class A misdemeanor, unless the offense is committed under Subsection (b)(1) or (b)(3), in which event the offense is a felony of the third degree.
(h) It is a defense to prosecution under Subsection (a) that the actor, at the time of the commission of the offense, displayed the handgun under circumstances in which the actor would have been justified in the use of deadly force under Chapter 9.
Text of subsection as added by Acts 2007, 80th Leg., R.S., Ch. 1214, Sec. 2

(h-1) It is a defense to prosecution under Subsections (b) and (c) that the actor, at the time of the commission of the offense, was:
     (1) an active judicial officer, as defined by Section 411.201, Government Code; or
     (2) a bailiff designated by the active judicial officer and engaged in escorting the officer.
Text of subsection as added by Acts 2007, 80th Leg., R.S., Ch. 1222, Sec. 5

(h-1) It is a defense to prosecution under Subsections (b)(1), (2), and (4)-(6), and (c) that at the time of the commission of the offense, the actor was:
     (1) a judge or justice of a federal court;
     (2) an active judicial officer, as defined by Section 411.201, Government Code; or
     (3) a district attorney, assistant district attorney, criminal district attorney, assistant criminal district attorney, county attorney, or assistant county attorney.
(i) Subsections (b)(4), (b)(5), (b)(6), and (c) do not apply if the actor was not given effective notice under Section 30.06.
(j) Subsections (a) and (b)(1) do not apply to a historical reenactment performed in compliance with the rules of the Texas Alcoholic Beverage Commission.
(k) It is a defense to prosecution under Subsection (b)(1) that the actor was not given effective notice under Section 411.204, Government Code.

Added by Acts 1995, 74th Leg., ch. 229, Sec. 4, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 165, Sec. 10.04, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1261, Sec. 26, 27, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 1420, Sec. 14.833, eff. Sept. 1, 2001.
Amended by:
Acts 2005, 79th Leg., Ch. 976, Sec. 3, eff. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch. 1214, Sec. 2, eff. June 15, 2007.
Acts 2007, 80th Leg., R.S., Ch. 1222, Sec. 5, eff. June 15, 2007.
Acts 2009, 81st Leg., R.S., Ch. 687, Sec. 1, eff. September 1, 2009.