Kids and Guns: Making a Firearm Accessible to a Child in Texas

 In Criminal
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Whether for hunting, sport shooting or protection, Texans love their guns. In fact, nearly 36 percent of households in the Lone Star State contain guns. Unfortunately, every year we hear stories about children who get hold of a firearm and accidentally shoot themselves or someone else.

Not only is this tragic, but it can be criminal. Gun owners can be charged with a misdemeanor in Texas if they fail to secure their firearms or leave them in a place where a child can access them. Here’s what you need to know about making a firearm accessible to a child in Texas, which is also referred to as the Child Access Prevention, or CAP, law.

The Law: Making a Firearm Accessible to a Child

Under Texas Penal Code 46.13, a person commits the offense of making a firearm accessible to a child if the child gains access to a readily dischargeable firearm, and the person with criminal negligence:

  • Failed to secure the firearm; or
  • Left the firearm in a place to which the person knew or should have known the child would gain access

Making a Firearm Accessible to a Child: Important Definitions

  • A “child” means a person younger than 17 years of age.
  • A “readily dischargeable firearm” means a firearm that is loaded with ammunition, whether or not a round is in the chamber.
  • “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 or rendering the firearm inoperable by a trigger lock or other means.

The Punishment for Making a Firearm Accessible to a Child

Making a firearm accessible to a child is a Class C Misdemeanor punishable by up to $500 fine. This offense could occur, for example, if your son brings some friends home and starts showing off the loaded gun you keep under the couch.

If the gun goes off and someone gets hurt or dies, the punishment is more serious. It is a Class A misdemeanor, punishable by up to a year in jail and a $4,000 fine, if the child discharges a firearm and causes death or serious bodily injury to himself or another person.

Interestingly, the law specifically states if the negligent gun owner is a member of the family of the child who discharged the firearm, and the child was seriously injured or killed, an arrest cannot be made until seven days after the offense was committed. This aspect of the law was put into place to allow the gun owner, which is often a parent or relative, a grieving period before being taken into custody.

Affirmative Defenses to Making a Firearm Accessible to a Child

It’s important to point out that there are affirmative defenses in the law, such as an adult taking their child hunting. A person would not be in violation of the law if the child’s access to a firearm:

  • Was supervised by a person older than age 18 and was for hunting, sporting, or other lawful purposes;
  • Consisted of lawful defense by the child or people or property;
  • Was gained by entering property in violation of this code; or
  • Occurred during a time when the actor was engaged in agricultural enterprise

A Note for Firearm Dealers

Under the law, a firearms dealer must post in a “conspicuous position” on the premises where he or she 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.

Contact Us

If you or a loved one is facing a charge for making a firearm accessible to a child, call us for a complimentary strategy session. During this call we will:

  • Discuss the facts of your case;
  • Discuss the legal issues involved, including the direct and collateral consequences of the allegation; and
  • Discuss the defenses that apply to your plan and in general terms discuss our approach to your case.

Call: (817) 203-2220

You can also contact us online:

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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.”[/x_accordion_item][/x_accordion][/cs_column][/cs_row][/cs_section][/cs_content]

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