Carrying a Firearm While Intoxicated in Texas: Charges, Penalties & Your Gun Rights at Risk

Texas Penal Code §46.035(d): Carrying While Intoxicated

The statute is straightforward: Texas Penal Code §46.035(d) makes it illegal to carry a handgun while intoxicated.

The law applies to any person licensed to carry a handgun (a Concealed Handgun License or CHL, now called a License to Carry or LTC). It’s also possible to be charged even if you don’t have a license, depending on how the gun was carried.

The offense is defined as knowingly carrying a handgun while intoxicated. Let’s break down what this means:

• Carrying: You must have the gun on your person or within reach and ready for use. This includes carrying in a holster, waistband, purse, vehicle, or any accessible location.
• Handgun: The firearm must be a handgun (a gun with a barrel of 5.5 inches or less). Long guns (rifles, shotguns) are not covered by this specific statute, though other charges may apply.
• Intoxicated: You must be intoxicated as defined by Texas law—meaning your mental or physical faculties are impaired by alcohol, drugs, or some combination, or your BAC is 0.08 or higher.
• Knowingly: You must have known you were intoxicated. If you’re genuinely unaware of your intoxication, this element might not be met, though that’s a difficult defense.

The Charge: Class A Misdemeanor

Carrying a firearm while intoxicated is classified as a Class A misdemeanor. This is the most serious category of misdemeanor in Texas.

Maximum penalty: One year in jail and $4,000 fine.

However, many judges impose lesser sentences—probation, a smaller fine, or minimal jail time—especially for first offenders. This is where having a good attorney makes a real difference.

Criminal record. A Class A misdemeanor conviction creates a permanent criminal record. This follows you on background checks, employment applications, and when people search you online.

Beyond Criminal Penalties: Gun Rights Consequences

But criminal penalties are only part of the problem. The gun rights consequences may be worse.

CHL/LTC suspension. Your license to carry will be suspended. You will lose the right to carry a concealed handgun in Texas.

CHL/LTC revocation. If you’re convicted, the Department of Public Safety may revoke your license entirely. You may never be able to get it back—or if you can, it may be years before you’re eligible to reapply.

Federal firearms consequences. If you’re convicted of a misdemeanor involving intoxication, you face federal consequences as well. Under federal law, convicted domestic violence misdemeanants are prohibited from possessing firearms. If your charge is related to a domestic situation (intoxicated and arguing with a family member while armed), federal gun rights can be lost.

Felony enhancement. If this is your second offense within five years, the charge becomes a felony. This is especially serious because felonies result in a lifetime prohibition on firearms.

Federal Law: The Lautenberg Amendment

The federal “Lautenberg Amendment” prohibits anyone convicted of a misdemeanor domestic violence offense from possessing a firearm. This applies even if the conduct isn’t specifically called “domestic violence.”

If you were intoxicated and carrying while in a domestic dispute, you could be charged under both Texas state law and face federal gun restrictions. A conviction could mean lifetime federal prohibition on gun ownership.

This is a critical issue to discuss with your attorney if domestic violence elements are involved.

How These Cases Develop

Typical scenarios: You’re at a bar or party. You’ve been drinking. You’re carrying a handgun (openly or concealed). Someone notices—maybe a bartender, maybe another patron—and calls police. Or police stop you for another reason (traffic stop, disturbance) and discover you’re intoxicated and armed.

Police response: When police respond, they’ll observe signs of intoxication and note that you’re carrying. You’ll be asked to perform field sobriety tests or breathalyzed. If your BAC is 0.08 or higher, or if you fail sobriety tests, police will document your intoxication.

Arrest: You’ll be arrested for carrying while intoxicated and possibly for DWI as well (if you were also driving).

Booking: You’ll be taken into custody, booked, and your firearm will be confiscated.

Initial appearance: You’ll appear before a magistrate, be advised of your rights, and bail will be set. For a first-time Class A misdemeanor, bail is typically low—$500-$2,000.

Charges filed: The prosecutor will file a misdemeanor complaint alleging carrying while intoxicated.

Discovery and negotiation: Your attorney will obtain evidence and negotiate with the prosecutor.

Plea or trial: The case either settles through a plea agreement or goes to trial.

What the Prosecution Must Prove

The state must prove every element of the offense beyond a reasonable doubt.

• First, you carried a handgun. The state must prove you had a handgun on your person or in immediate proximity and that it was readily accessible.
• Second, you were intoxicated. The state must prove your mental or physical faculties were impaired by alcohol or drugs, or that your BAC was 0.08 or higher. This is often proven through field sobriety tests, breathalyzer results, or blood tests.
• Third, you knew you were intoxicated. The state must prove you knew or should have known you were intoxicated. This element is usually easy for the state to prove if your BAC is clearly above 0.08.
• Fourth, you knowingly carried the handgun. You must have known you were carrying the gun. This is rarely an issue—you almost always know if you’re carrying.

Defense Strategies

• Challenge whether you were actually intoxicated. If the state relies on a breathalyzer, we can challenge the accuracy of the test, the maintenance of the device, and the testing procedure. If the state relies on field sobriety tests, we can present evidence that poor balance or nervousness, not intoxication, caused failures.
• Challenge the BAC result. Was the breathalyzer properly calibrated? Was the test administered correctly? Was the blood test done properly? Was the chain of custody maintained? Lab errors happen. We’ll investigate any testing.
• Challenge knowledge of intoxication. If your BAC was barely above 0.08 and you felt fine, we might argue you didn’t know you were intoxicated. This is a weak defense if your BAC was significantly higher, but it’s worth exploring.
• Challenge whether you were carrying. If the gun was in your vehicle and not on your person, the charge might not apply. The statute requires carrying—having the gun accessible and on you or immediately available.
• Negotiate reduction. Many prosecutors will reduce or dismiss this charge in exchange for a guilty plea to a lesser offense or a DWI (if you were also driving). We’ll explore all options.

The Critical Issue: License Suspension

Even if you’re not convicted, police will seize your license to carry. You must take action to prevent suspension or revocation.

Administrative license suspension: The Department of Public Safety will suspend your CHL/LTC based on the arrest alone. You have a right to a hearing before the DPS to contest the suspension. This hearing must be requested within 15 days of the arrest.

We handle DPS license suspension hearings as part of our representation. Even if you ultimately plead guilty to a reduced charge, we want to fight the administrative suspension if possible.

After conviction: If you’re convicted of the offense, the DPS will revoke your license. After revocation, you may not be eligible to reapply for years—sometimes a long time depending on the specifics.

Probation and Deferred Adjudication Options

For a first offense with no prior criminal history, the prosecutor may offer probation instead of jail time.

Probation: You plead guilty and accept a probation sentence (typically 12 months of community supervision). You must comply with probation conditions: no further arrests, possible fines, possible classes, and possible community service. If you successfully complete probation, you’re still convicted—the conviction remains on your record.

Deferred adjudication: You plead nolo contendere (no contest) to the charge. Your guilt is not formally adjudicated. If you successfully complete probation, the case can be dismissed. This is better than straight probation because ultimately the conviction may be dismissed.

Both options keep you out of jail but don’t eliminate the conviction from your record in the case of probation.

Scenarios: When Carrying While Intoxicated Applies

Scenario 1: Open carry after drinking. You’re at a friend’s house for a barbecue. You’re carrying openly in a holster. You have several beers. Someone calls police about an armed person. When police arrive, they note signs of intoxication. This is carrying while intoxicated.

Scenario 2: CHL/LTC and DWI. You’re pulled over for erratic driving. Police notice you’re impaired and discover you’re carrying a concealed handgun. You’re charged with both DWI and carrying while intoxicated (two separate charges).

Scenario 3: Gun in purse at bar. You go to a bar with a handgun in your purse. You drink. A bartender notices the gun or you accidentally expose it. Police are called. You’re arrested for carrying while intoxicated.

Scenario 4: Intoxicated and driving with gun in vehicle. You’re driving after drinking, and police stop you. They find a handgun in your vehicle. You’re charged with DWI and carrying while intoxicated (though the carrying charge is weaker since the gun was in the vehicle, not on you).

Comparison: Carrying While Intoxicated vs. Unlawful Carry

It’s important to understand the difference between carrying while intoxicated and other firearm charges.

• Carrying while intoxicated (§46.035(d)): Class A misdemeanor. Requires intoxication + carrying.
• Unlawful carrying (§46.02): Class B misdemeanor. Carrying without a license (if license is required in that setting). This is less serious than carrying while intoxicated.
• Prohibited person carrying (§46.04): Felony. Someone with a felony conviction or certain other prohibitions carrying a firearm. Much more serious.
• Making a firearm accessible to a child (§46.13): Misdemeanor or felony depending on whether injury resulted. Related to unsafe storage.

Understanding which charge applies is critical to your defense strategy.

What Happens to Your Firearm

When you’re arrested for carrying while intoxicated, police will confiscate your firearm. It becomes evidence.

After the case resolves, you may be able to get your gun back—but only if you’re acquitted or if the charges are dismissed. If you’re convicted, your gun may be permanently lost or you may face requirements to surrender it.

You’ll want to consult with your attorney about the status of your firearm during the case and what options exist for recovery after the case ends.

If You Also Face DWI Charges

If you were driving while intoxicated and carrying, you’ll face both DWI charges and carrying while intoxicated charges.

DWI is more serious. DWI penalties are harsher—$1,000-$2,000 fine, possible jail time of 72 hours to six months for a first offense, and license suspension.

Carrying while intoxicated is the secondary charge. But it adds to your exposure.

We’ll work to defend both charges, focusing resources on the DWI defense while also defending the carrying charge.

Collateral Consequences

Beyond criminal penalties, a conviction for carrying while intoxicated affects:

• Gun rights: Lost CHL/LTC, potentially unable to reapply for years.
• Employment: Some employers have policies against hiring anyone convicted of carrying while intoxicated or other firearm offenses.
• Professional licenses: Certain professional licenses may require disclosure of criminal convictions, including this one.
• Immigration: If you’re not a U.S. citizen, a criminal conviction can trigger deportation proceedings.
• Custody and visitation: A conviction may affect your ability to maintain custody or visitation with children.

Jury Trial Considerations

Some defendants choose jury trial in carrying while intoxicated cases, hoping a jury will be sympathetic to a licensed gun owner who made a mistake.

This is risky. Some jurors are very unsympathetic to anyone carrying while intoxicated. The combination of guns and alcohol triggers strong emotional responses in some people.

We’ll discuss the pros and cons of jury trial versus bench trial with your specific situation in mind.

Contact Our Attorneys

If you’ve been charged with carrying a firearm while intoxicated in Dallas, Fort Worth, or any of the 16 counties we serve, contact the Dallas DWI Lawyer immediately.

We have 35+ years of experience defending gun-related charges and DWI cases. We understand the specific consequences of carrying while intoxicated convictions and will fight to protect your gun rights and your criminal record.

Call us at 972-528-0116 for a free consultation. We’re available nights and weekends.