Do you ever feel like you are in an unending Ad Lib game? “Today the [political official] issued a disaster declaration regarding [noun] and advised everyone to [verb] immediately. Reaction was [adverb].“
Regardless of the crisis du jour, it would be wise for all of us to brush up on the Disaster Carry law in Texas.
When Hurricane Harvey hit, it became evident that the handgun law in Texas had a gaping hole. In Texas, it is illegal for a person who does not have a “license to carry” to actually carry a handgun unless it is on that premises that are owned or controlled by the person, or in a motor vehicle or watercraft owned or controlled by that person, or going to and from that person’s premises, car or watercraft.
That left little wiggle room for people who were physically threatened while engaging in rescue efforts, hit by looters, or refused shelter for carrying firearms they had removed from their flooded property. The governor obligingly signed into law a solution called Disaster Carry.
Once a governmental entity (state or local) declares a State of Disaster, an unlicensed person can carry a handgun for purposes of evacuating and reentering the area for up to 7 days after the disaster declaration is issued. As for taking a gun into an emergency shelter, that too is allowed during a State of Disaster if the operator of the premises authorizes carrying a handgun and the person carrying the handgun abides by the premise operator’s rule.
The Disaster Carry only applies to people not prohibited by state or federal law from possessing a firearm.
How will you know if a State of Disaster is declared? Usually that information is broadcast on news and media sites, but you can also check on the Governor’s website for it.
Who is prohibited from possessing a firearm by state or federal law? There is a pretty long list but the important point is that a prohibition under either state or federal law knocks you out. That is good to remember because Texas law is, in many ways, more lenient than federal law. For example, under Texas law, if you are a convicted felon, then you are only prohibited from having a firearm for five years after your conviction. The federal Gun Control Act, however, prohibits anyone who is a convicted felon from possessing or purchasing a firearm or ammunition. Federal law controls.
A few more people knocked out by the Gun Control Act: an unlawful user or someone addicted to any controlled substance, someone who has been adjudicated as a mental defective, an alien illegally or unlawfully in the United States, a person who has been dishonorably discharged from the Armed Forces or who has renounced his or her citizenship of the United States, and a person on the receiving end of a restraining order regarding stalking, etc. of an intimate partner with violence involved.
Another good to know fact: the government, federal or state, cannot confiscate your gun except for a few very limited circumstances. Check out the federal Disaster Relief and Emergency Assistance Act and the Texas Government Code sections 418 and 484.
Virginia Hammerle is a Texas attorney whose practice includes estate planning, guardianship and probate. Sign up for her newsletter at legaltalk@hammerle.com. Contact Hammerle Finley Law Firm to schedule a consultation at hammerle.com.
This column does not constitute legal advice.
