In Texas, a DWI arrest while carrying a handgun is a separate criminal offense, even for someone with a valid License to Carry. State law specifically prohibits LTC holders from carrying while intoxicated, and the gun charge is filed alongside the DWI rather than absorbed into it.
The two cases don’t always move at the same speed. A DWI can be resolved in months while the weapons charge lingers, or the gun count can drive plea negotiations on the DWI in ways defendants don’t expect. License revocation through DPS runs on its own track, on top of everything else.
RJ Harber is a former Dallas prosecutor who defends stacked DWI and weapons cases. Contact us today for a free consultation.
Unlawful Carrying of a Weapon Under Texas Penal Code § 46.02
Carrying in a Motor Vehicle During Criminal Activity (§ 46.02(A-1))
Section 46.02(a-1) makes it an offense to carry a handgun in a motor vehicle the person owns or controls if any of three triggers apply:
- The gun is in plain view (with limited exceptions for those licensed and using a holster),
- The person is engaged in criminal activity besides a Class C violation of a traffic law,
- The person is otherwise prohibited from possessing a firearm.
A first-offense DWI under § 49.04 is a Class B misdemeanor, well above the Class C exclusion. The moment a driver becomes intoxicated behind the wheel with a handgun in the car, otherwise lawful carry turns into a separate offense under (a-1).
Carrying While Intoxicated Outside (§ 46.02(A-6))
Carrying a handgun while intoxicated is an offense unless the person is on their own property, on private property with the owner’s consent, or inside or directly en route to a motor vehicle they own or have permission to use. Intoxication means either loss of normal use of mental or physical faculties from alcohol, drugs, or a combination, or a BAC of 0.08 or more.
This is where stacked cases often pick up additional exposure. A driver who steps out of the vehicle while still intoxicated and still carrying can go from (a-1) to (a-6).
Penalties for DWI and Unlawful Carrying of a Weapon
Class A Misdemeanor Sentencing Under § 46.02
An offense under § 46.02(a-1) or (a-6) is a Class A misdemeanor under § 46.02(b). Section 12.21 sets the punishment at up to one year in county jail, a fine of up to $4,000, or both. A conviction also creates a record that affects firearm eligibility and license renewals.
DWI Sentencing Under § 49.04 and § 49.09
- A first-offense DWI under § 49.04(b) is a Class B misdemeanor. Section 12.22 caps that at 180 days in jail and a $2,000 fine, with a 72-hour minimum.
- Section 49.09(a) raises a second DWI to a Class A misdemeanor with a 30-day minimum and the Class A range.
- A third DWI is a third-degree felony under § 49.09(b), carrying the § 12.34 range of 2 to 10 years in TDC and a fine of up to $10,000.
Section 49.09(h) requires ignition interlock for second-or-subsequent offenders within a five-year window.
Open Container and 0.15 BAC Enhancements
- Section 49.04(c) raises the minimum jail term to six days when the driver had an open container of alcohol in immediate possession at the time of the offense.
- Section 49.04(d) raises the offense itself to a Class A misdemeanor when chemical analysis shows a BAC of 0.15 or more.
The Class A bracket lines up with the weapons-charge bracket, so a 0.15 enhancement on the DWI puts both counts in the same sentencing range.
Felony Unlawful Carrying Under Texas Penal Code § 46.02(A-7)
When It’s a Second-Degree Felony: Prior Felony Conviction
Under § 46.02(a-7), carrying becomes a crime if you’re already prohibited from possessing a firearm under § 46.04. The charge is enhanced to a second-degree felony with a five-year minimum when that prohibition comes from a prior felony conviction. (Tex. Penal Code § 46.05(e)(1), § 46.04(a).)
Section 46.04(a) works in two stages after a felony conviction:
- For five years after release from prison, parole, or community supervision: no firearm possession, anywhere.
- After those five years: possession is still barred everywhere except your own residence.
A second-degree felony carries 2–20 years in prison and a fine of up to $10,000. (§ 12.33.)
When It’s a Third-Degree Felony: Family Violence or Protective Order Cases
The charge jumps to a third-degree felony in two situations:
- You have a recent family violence conviction: Specifically, a Class A misdemeanor assault against a family or household member, and you’re still within five years of your release date. (Tex. Penal Code §§ 46.04(b), 22.01; enhancement at § 46.05(e)(2).)
- You’re under an active protective order. (Tex. Penal Code § 46.04(c).)
A third-degree felony carries 2–10 years in prison and a fine of up to $10,000. (§ 12.34.) Any DWI charge in the case is separate—these penalties are on top of it.
Firearm Rights Consequences
License to Carry Suspension and the Repealed § 46.035
Texas runs a separate administrative process for License to Carry (LTC) holders, handled by the Department of Public Safety (DPS), and it moves on its own timeline, regardless of what’s happening in your criminal case.
Getting charged triggers a suspension. If you’re charged with a Class A or Class B misdemeanor, which includes both DWI and unlawful carrying under § 46.02, the DPS is required to suspend your LTC. The suspension stays in place until the underlying charges are dismissed.
Getting convicted can trigger a full revocation. DPS must revoke your LTC if you become ineligible to hold one under § 411.172. Meaning a second qualifying DWI conviction can push you from suspension into revocation.
Defenses to DWI and Unlawful Carrying of a Weapon
Even when these charges move through the courthouse together, the defenses are split between them. Each charge has its own elements the state has to prove.
DWI Defenses
- The traffic stop itself: Was there legal justification to pull the driver over in the first place?
- The officer’s observations of intoxication: Was there a proper foundation for what the officer claims to have seen?
- The evidence: Was the breath or blood test administered correctly? Was the equipment properly calibrated, and was the specimen preserved according to lab protocol?
Unlawful Carrying Defenses
- 46.02(a-1) Carrying during other criminal activity: The state has to prove the underlying criminal activity actually happened. If the DWI doesn’t hold up, the (a-1) charge that was riding on it may fall with it.
- 46.02(a-6) Location-based restrictions: This subsection has built-in exceptions for carrying on your own property, on property where you have the owner’s consent, and in your own vehicle. Where the defendant actually was at the moment of the alleged carrying often drives the whole analysis.
- 46.02(a-7) Carrying while prohibited: The state has to prove the underlying disqualification under § 46.04(a), (b), or (c) was actually in force at the time of the offense. That raises questions about whether the prior conviction or protective order existed and was still active.
Contact a Dallas DWI and Weapons Defense Lawyer
If you are facing a DWI and a weapons charge in the Dallas area, early defense work can shape what happens in both cases. RJ Harber handles DWI and weapons in Dallas with 15+ years of criminal defense experience. Contact criminal defense attorney RJ Harber today for a free consultation.
Frequently Asked Questions
Can I be charged with both DWI and unlawful carrying of a weapon at the same time?
Yes. Texas treats them as separate offenses. A single DWI arrest with a firearm in the vehicle can result in DWI and unlawful possession of a weapon charges filed together under the Texas Penal Code.
Does carrying a firearm while intoxicated violate Texas law?
Yes. Penal Code 46.02(a-6) makes it a Class A misdemeanor to carry a handgun while intoxicated, even if the person holds a Texas license to carry. The protection a permit normally provides drops away when alcohol or drugs impair the person carrying.
What happens to a license to carry after a DWI conviction?
A DWI conviction can lead the Texas Department of Public Safety to suspend or revoke a license holder’s carry permit. Even after the suspension lifts, a recent conviction often complicates renewal and may affect gun rights in ways that vary by charge level.
Does permitless carry protect me if I’ve been drinking?
No. Permitless carry under Texas’s 2021 law does not extend to anyone who is intoxicated. The same rule applies to open carry. If a person intentionally, knowingly, or recklessly carries a handgun while impaired, the carry becomes unlawful regardless of how the law would otherwise treat it.
Can police search my car for a weapon after a DWI traffic stop?
Once an officer makes an arrest at a traffic stop, the subsequent search of the motor vehicle is often allowed under exceptions tied to officer safety or evidence preservation. The legality usually turns on whether probable cause existed at each stage.
What defenses exist for DWI and unlawful possession of a weapon charges?
Possible defenses range from challenging the reasonable suspicion for the original stop to questioning the field sobriety testing procedures, the testing equipment used, or the blood alcohol concentration result. Statutory defenses under Penal Code 46.15 may also apply if the firearm was carried within an authorized exception, and the state must prove every element of each charge beyond a reasonable doubt.