Negligent Discharge in Texas | Walker & Taylor Law

Updated December 19, 2022

Many of us here in Texas take great care in handling our firearms, but what happens when you have an accidental or negligent discharge? We will discuss:

What an accidental or negligent discharge is,
What duties do you have,
What you can be criminally charged with, and
Whether you can be sued.

WHAT IS AN ACCIDENTAL OR NEGLIGENT DISCHARGE?

An accidental discharge commonly occurs when a person handling a firearm discharges it when they did not intend to do so. Improper handling of a firearm can result in a negligent discharge. Whether the firearm is discharged by accident or negligence, an unintentional discharge can have major consequences.

DO I HAVE A DUTY TO REPORT AN ACCIDENTAL OR NEGLIGENT DISCHARGE?

You will have different duties depending on the circumstances surrounding the discharge of your firearm. Let’s look at what you should do in the event of an accidental or negligent discharge.

WHAT HAPPENS IF I HAVE AN ACCIDENTAL OR NEGLIGENT DISCHARGE INSIDE MY HOME?

Your home (a private residence) is generally not a public place. If you accidentally or negligently discharge your firearm inside your residence and the bullet does not leave your property, and nobody is hurt, then you do not have a duty to report the discharge. So long as you are not aware of any ongoing investigation into the discharge, then you may repair the property damage. If, however, you are aware of an ongoing investigation, you may not repair or rehabilitate the damage as that may be considered tampering with physical evidence. If the bullet leaves your property, you need to assess the situation before making any calls to the authorities; it is important to have an experienced criminal attorney when talking to authorities.

WHAT HAPPENS IF I HAVE AN ACCIDENTAL OR NEGLIGENT DISCHARGE IN PUBLIC?

While accidental or negligent discharges can happen anywhere, the ones that take place in public will often occur while an individual is hunting or at a sport shooting range. It is important, if you have an accidental or negligent discharge in public, to assess the situation before making any calls to the authorities. Under the 5^th Amendment to the United States Constitution, you have no duty to incriminate yourself¹. If you find yourself in this situation, it is important to have an experienced criminal attorney.

WHAT CAN I BE CHARGED WITH IF I HAVE AN ACCIDENTAL OR NEGLIGENT DISCHARGE?

In Texas, criminal charges can result from someone who accidentally or negligently discharges their firearm. Be mindful of the following offenses when handling or discharging a firearm in Texas.

MUNICIPAL VIOLATION – CLASS C

Just about every city in Texas has an ordinance against discharging a firearm within the city’s incorporated limits. Violations of these ordinances are generally Class C misdemeanors punishable by a fine not to exceed $500². Depending on the municipal ordinance, most of these Class C offenses will allow for defenses.

DISORDERLY CONDUCT

A person commits the offense of Disorderly Conduct – Discharging a Firearm when they intentionally or knowingly discharge a firearm in a public place that is not a public road or a sport shooting range³. This offense is classified as a Class B misdemeanor, which carries a penalty of up to 180 days in the county jail and/or a fine not to exceed $2000⁴. A person can also commit the offense of Disorderly Conduct – Discharging a Firearm when they intentionally or knowingly discharge a firearm on or across a public road⁵. This offense is classified as a Class C misdemeanor⁶.

DISCHARGE OF A FIREARM IN CERTAIN MUNICIPALITIES

A person commits the offense of Discharging of Firearm in Certain Municipalities if they recklessly discharge a firearm inside the corporate limits of a municipality that has a population of 100,000 or more⁷. This is a Class A misdemeanor with a punishment of up to a year in jail and/or a fine not to exceed $4000⁸.

DEADLY CONDUCT

A person commits a third-degree felony for Deadly Conduct when they knowingly discharge a firearm at or in the direction of at least one person or a habitation, building, or vehicle and is reckless as to whether that location is occupied⁹. A third degree felony in the State of Texas carries a punishment of 2 years up to 10 years in the Texas Department of Criminal Justice and a fine not to exceed $10,000¹⁰. A person can also commit a Class A misdemeanor for Deadly Conduct if they recklessly engage in conduct that places another in imminent danger of serious bodily injury¹¹.

The Texas Court of Criminal Appeals ruled in Reed v. State that discharging a firearm inside a building does not constitute deadly conduct when the indictment charges that the defendant fired a gun “at or in the direction of a habitation.”¹².

AGGRAVATED ASSAULT

A person commits an aggravated assault when they intentionally, knowingly, or recklessly cause serious bodily injury to another or uses or exhibits a deadly weapon during the commission of the assault¹³. Generally, this offense is classified as a second-degree felony, which carries a penalty from 2 years up to 20 years in the Texas Department of Criminal Justice and a fine not to exceed $10,000¹⁴.

Most of the offenses we have discussed depend on the location of the discharge; when assessing your situation, it is important to know the law surrounding your location. Check out our article for more information on how much land you need to shoot on your property legally.

CAN I BE SUED CIVILLY FOR DAMAGES?

The short answer is “yes.” An accidental or negligent discharge claim will likely come in the form of a negligence or gross negligence claim. Each claim requires different proof from the plaintiff for them to recover damages.

Texas courts describe negligence as:

“[T]he failure to use ordinary care, that is, failing to do that which a [person] of ordinary prudence would have done under the same or similar circumstances, or doing that which a [person] of ordinary prudence would not have done under the same or similar circumstances.”¹⁵.

Ordinary prudence (care) means “that degree of care that a [person] of ordinary prudence would use under the same or similar circumstances”¹⁵. If a plaintiff is able to establish liability for negligence by showing that a person acted without this ordinary care when handling and discharging a firearm then they may be able to recover damages. Whether or not a person acted with ordinary care is decided by the judge or jury and not determined by what the person acting believed at the time.

Texas Civil Practices and Remedies Code Section 41.001(11) defines gross negligence as:

“[A]n act or omission: which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.”¹⁶

As you can see, this is a subjective standard. Additionally, your conduct will be evaluated as to whether the actual person was aware of the risk involved. If you are sued under a claim of gross negligence, then the plaintiff may recover more damages than they would be entitled to under a negligence claim.

Be aware that you can be sued if you accidentally or negligently discharge your firearm, and it is important to have an experienced attorney. Contact Walker & Taylor now for a free case evaluation.

HOW DO YOU BEAT A CHARGE FOR ACCIDENTALLY OR NEGLIGENTLY DISCHARGING YOUR FIREARM—HIRE AN ATTORNEY WITH KNOWLEDGE AND EXPERIENCE IN HOUSTON, TX TODAY!

Consult with a firearm charges attorney right away. As you can tell, charges that come with negligently or accidentally discharging your firearm can be very serious, and the penalties can be harsh. The attorneys at Walker & Taylor will provide experienced legal representation to help fight the charges. Contact the firm for a free case evaluation by calling (281) 668-9957 today!

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