Note: this post deals predominantly with open carry. Concealed carry is legal without a license anywhere in a vehicle in Texas.
I’ve seen a lot of debate among people about whether Texas law allows a person to carry a holstered firearm on the seat next to him or in a cupholder or some other place that is not directly on the person. Before I go any further, I want to make very clear that I am NOT giving legal advice. I am not an attorney.
Texas Penal Code 46.02(a)(1) states that “A person commits an offense if the person…intentionally, knowingly, or recklessly carries on or about his or her person a handgun…” The code then goes on to state that the exception to this is having a license to carry. Section 46.02(a-1)(1) discusses handguns in a vehicle: “A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle or watercraft that is owned by the person or under the person’s control at any time in which…the handgun is in plain view, unless the person is licensed to carry a handgun.”
The point of contention is the part where the law says the gun has to be “carried” in a way that is “on or about the person.” People unfamiliar with legal language and common law can’t grasp the concept that, under the law, you don’t have to physically bear the weight of something to “carry” it. This should be obvious in the way the law is worded. It doesn’t just say carried “on the person.” It adds the clause “about the person.” If “on” and “about” meant the same thing, the legislature wouldn’t have included both words. But it did, and people are confused for some reason still.
Remember that during Reconstruction the Democrats were really worried about armed black people. The 1876 Texas Constitution was worded to include ways with which the legislature could potentially restrict firearms – “with a view to prevent crime.” Just prior to our Constitution being ratified, the Democrats passed the first law to ban open and concealed carry to keep the “newly freed slaves and Mexicans” from arming themselves. The law was titled “An Act to Regulate the Keeping and Bearing of Deadly Weapons, Law of April 12, 1871, ch. 34, §1, 1871 Tex. Gen. Laws 25.” The law specifically banned “any person [from] carrying on or about his person, saddle, or in his saddle bags, any pistol, dirk, dagger, slung-shot, sword-cane, spear, brass-knuckles, bowie-knife, or any other kind of knife manufactured or sold for the purposes of offense or defense.” This law remained relatively unchanged until 1995 when the concealed carry law was passed.
In 1909, a man was convicted for having a pistol under the seat of his buggy. He wasn’t carrying it, but it was about his person. See Leonard v. State, 56 Tex. Crim. 84, 119 S.W. 98 (1909). In 1914, a man was also convicted and fined for having a pistol under his seat because the State considered it “carried” on his buggy. See Mayfield v. State, 75 Tex. Crim. 103, 170 S.W. 308 (1914).
There were also a few cases that were contrary to these cases. An 1897 conviction was overturned when the Court found that having a pistol in the front end of a wagon in which defendant was riding was not ‘about’ the person. See Hardy v. State, 37 Tex. Crim. 511, 40 S.W. 299 (1897). Another case held that having a pistol in a wagon about half-way between the seat and the rear end is not carrying ‘about the person.’ See Thompson v. State, 48 Tex. Crim. 146, 86 S.W. 1033 (1905). So, obviously this issue needed to be resolved.
In 1916, the Texas Court of Criminal Appeals (the Supreme Court in Texas for criminal cases) heard a Houston case that addressed the very language of what constituted “on or about the person.” Wagner v. State, 80 Tex. Crim. 66, 188 S.W. 1001 (1916). Wagner was charged with carrying a pistol about his person and at his jury trial was found guilty and fined $100. Now, I won’t get into the defendant’s story about how it got there because it’s irrelevant to this discussion. Wagner appealed the sufficiency of the evidence.
His main argument was that he was never seen with the gun and never picked it up, so he wasn’t “carrying” it. Witnesses testified that they had not seen him with the gun either. The Wagner court finally settled the issue of what constituted “about the person”:
The Legislature must have meant something when it used the words ‘or about the person,’ and on principle using the word ‘about’…be held to mean, within the pistol statute, near by, close at hand, convenient of access, and within such distance of the party so having it as that such party could without materially changing his position get his hand on it…
When applied to persons occupying vehicles, the phrase “on or about the person” has been expanded to include the area “near by, close at hand, convenient of access, and within such distance of the party so that, without materially changing his position, the party could get his hand on it.” See Courtney v. State, 424 S.W.2d 440, 441 (Tex. Crim. App. 1968). In 1993, this definition was again used as cannon. Contreras v. State, 853 S.W.2d 694 (Tex. App. 1993).
So there you have it. The law allows you to openly carry a holstered handgun that is carried on or about the person in your vehicle. The courts have already held that this applies to the holstered handgun being on the seat or anywhere in one’s vehicle provided he doesn’t “materially chang[e] his position get his hand on it.” In other words, a court would likely find that an openly holstered handgun in the third row of a minivan probably isn’t “about the person.” But, having a holstered handgun in the seat next to you, between the seats, in the cupholder, on the dashboard, etc., fit perfectly within Texas common law for “on or about the person.”