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Does Texas have a criminal statute on making a firearm accessible to a child?
by Donald Ray Burger
Attorney at Law

Yes. Section 46.13 of the Texas Penal Code addresses this issue. The law went into effect on September 1, 1995.

A person commits an offense under the statute if a child gains access to a readily dischargeable firearm and the person, with criminal negligence:
(1) failed to secure the firearm; or
(2) left the firearm in a place to which the person knew or should have known the child would gain access.

Under this statute a "child" is someone under the age of seventeen (46.13(a)(1)).

Remember that under 46.01 of the Penal Code a "firearm" includes shotguns, rifles and handguns. A "readily accessible firearm" is one that is loaded with ammunition-even if the ammo is in a magazine and there is no round in the chamber (46.13(a)(2)).

One "secures" a readily accessible firearm by taking the steps a reasonable person would take to prevent access by a child including, but not limited to, placing the firearm in a locked container or temporarily rendering the firearm inoperable through a trigger lock or other means.

There are four affirmative defenses to this section. An affirmative defense is one on which the Defendant has the burden of proof at trial. The affirmative defenses are that the child's access to the firearm:
(1) was supervised by a person older than 18 years of age and was for hunting, sporting, or other lawful purposes;
(2) consisted of lawful defense by the child of people or property;
(3) was gained by entering property in violation of this code; or
(4) occurred during a time when the actor was engaged in an agricultural enterprise.

If the child is killed when the firearm is discharged, and the Defendant is a family member, the police must wait seven days after the offense before arresting the Defendant.

The whole issue of children and guns is complicated. Just as parents drown-proof their children by teaching them to deal with swimming pools and lakes, they should "gun-proof" their kids. And that means more than just telling them to never go near water. Children will encounter guns. That is almost a certainty. Parents should prepare their children for that day. Ignorance is not bliss.

The NRA has safety programs for children and young adults. To learn more about such programs, click here.

Massad Ayoob has an excellent book out call Gun-Proof Your Children. You can order it through the Police Bookshelf, PO Box 122, Concord, NH 03302-0122. Also, one of the best introductions to this subject is contained in Chapter 16 of Ayoob's book, In the Gravest Extreme.

To read 46.13 (Making a Firearm Accessible to a Child) of the Penal Code, click here.

Question answered 2/2/04

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