• Walker & Taylor, PLLC

Texans! Don't Bring Your Gun to the Ballot Box

Early voting in Texas began October 13, 2020, and Election Day is November 3, 2020. With election season upon us, a question we are frequently asked is: "can I, as a Texas License to Carry holder, carry my handgun with me when I vote?"

Texas Penal Code § 46.03(a) contains the answer to this question:

"[a] person commits an offense if the person intentionally, knowingly, or recklessly possesses or goes with a firearm, location-restricted knife, club, or prohibited weapon listed in Section 46.05(a) … on the premises of a polling place on the day of an election or while early voting is in progress."

Therefore, you should leave any of the above-listed weapons in your vehicle before you pull the lever.

What are "Premises"?

The definition of premises as it applies to Tex. Penal Code § 46.03 is actually is found in Texas Penal Code § 46.035.

"'Premises’ means a building or a portion of a building. [T]he term does not include any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area." Tex. Penal Code § 46.035(f)(3).

What is a "Polling Place"?

The Texas Penal Code and the Texas Election Code do not define "polling place." As of the publish date of this article, there has not been a criminal case heard by the Texas Appellate Courts to give us a bright line legal ruling as to their definition of "polling place."

There is an election code violation for Electioneering and Loitering near a polling place, and a prohibition on using electronic recording devices and wireless communication devices near a voting station. Both statutes prohibit activities within 100 feet of a polling place or voting station. Election judges also have broad discretion to settle disputes at the location they have in their charge.

This means it could be argued that carrying a handgun (other firearm, club, location-restricted knife, or prohibited weapon) within 100 feet of an entrance of a voting location could be a serious crime. If convicted, a violation of this law (except in the case of a location-restrict knife) is punishable as a Third Degree Felony, up to 10 years in prison, a $10,000 fine, permanent disqualification of the right to purchase and possess firearms, and the lifetime loss of a Texas License to Carry a Handgun ("LTC").

However, because of the definition of premises, it should be perfectly legal to carry a weapon while parked at the polling place, as long as you leave it safely secured and out of sight in the vehicle before you walk inside the building to cast your ballot.

What About Drive-Thru Voting?

With the ongoing COVID-19 pandemic, many Texas counties have authorized voting in same way you would order a burger combo—in a drive-thru. This should have no effect on an LTC holder (or other lawful gun owner) having a firearm in their own vehicle as they cast their ballot and proceed through the driveway, right? The legal definition of "premises" clearly excludes "…any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area."

Unfortunately, the Texas Legislature (along with everyone else) could not have predicted this pandemic or its effects on everyday life, including voting. The laws are not drafted to address this specific situation.

Therefore, we are left with legal arguments in the event someone is arrested for otherwise lawfully carrying a firearm in their vehicle; the statute clearly defines what "premises" are and are not.

It is possible a law enforcement officer could try to arrest someone who drove through a voting location with a prohibited weapon or firearm. It’s more likely they will not, because of the explicit language exempting driveways under the definition of premises. Alas, historically, some law enforcement officers have made greater logical leaps and mental gymnastics to meet their political objectives.

Keep in mind: there are places that are always off-limits for the possession of firearms and other prohibited weapons like schools, courtrooms, or 51% businesses. These prohibitions remain in effect, even if buildings are temporarily converted into polling locations, so absolutely do not bring a prohibited weapon into one of these locations. Further, if a polling location is located in a private location, be on the lookout for effective Tex. Penal Code §§ 30.06 and 30.07 notice.

Author: Walker & Taylor, PLLC

DISCLAIMER: The information on this website does not contain legal advice or create an attorney-client relationship. Every case is different, and this material is not a substitute for, and does not replace the advice or representation of, a licensed attorney.

382 views0 comments