Leaving a loaded gun where a kid can get to it is a crime in Texas. Under Penal Code § 46.13, anyone who with criminal negligence lets a child under 17 gain access to a readily dischargeable firearm commits a Class C misdemeanor — and a Class A misdemeanor if the child fires it and kills or seriously injures someone.
Tell us what happened. A defense attorney reviews every submission — usually within the hour during business hours.
Independent peer-review ratings recognizing legal ability and ethical standards.
Awards reflect peer-reviewed ratings only. Past results do not guarantee future outcomes.
Texas Penal Code § 46.13 is the state's safe-storage offense — police and prosecutors often call it a “child access prevention” or CAP charge. A person commits the offense if a child gains access to a readily dischargeable firearm and the person, acting with criminal negligence, either (1) failed to secure the firearm or (2) left it in a place where the person knew or should have known the child would gain access. Both theories turn on storage decisions, not on any intent to arm a minor.
Three statutory definitions do most of the work in these cases. A “child” is a person younger than 17. § 46.13(a)(1). A “readily dischargeable firearm” is one loaded with ammunition, whether or not a round is in the chamber. § 46.13(a)(2). And “secure” means taking steps a reasonable person would take to deny a child access — the statute itself points to locked containers and to trigger locks or other means of temporarily disabling the gun. § 46.13(a)(3). Each definition is a litigation battleground: if the gun was unloaded, if the storage steps were reasonable, or if the person who reached the weapon was 17 or older, the offense fails on its face.
The Legislature created this offense in 1995, making Texas one of the earlier states to criminalize negligent firearm storage around children. Acts 1995, 74th Leg., ch. 83, § 1. The text has stayed substantively untouched for three decades — the lone amendment, in 1999, was a nonsubstantive code-revision change. Subsection (g) contains a provision most gun owners have seen without realizing it: every firearms dealer must post a conspicuous sign, in block letters at least one inch high, warning that it is unlawful to store, transport, or abandon an unsecured firearm in a place where children are likely to be and can obtain access to it.
The offense gained new visibility in 2023. House Bill 3 — the school-safety package the 88th Legislature passed after Uvalde — added Education Code § 37.222, which requires every Texas school district and open-enrollment charter school to give parents information about the § 46.13 offense and about practical ways to keep children from accessing firearms. Since September 1, 2023, in other words, every public-school family in Texas receives notice describing this exact charge.
Section 46.13 uses a two-tier punishment scheme, and the dividing line is whether the child actually fired the weapon and badly hurt someone. The base offense is a Class C misdemeanor — the same grade as a traffic ticket — punishable by a fine of up to $500 with no confinement. The offense becomes a Class A misdemeanor if the child discharges the firearm and causes death or serious bodily injury to himself or another person. § 46.13(e). A Class A misdemeanor carries up to one year in county jail and a fine of up to $4,000. Penal Code §§ 12.21, 12.23.
| Scenario | Classification | Confinement | Fine cap |
|---|---|---|---|
| Child gains access to a loaded firearm; no discharge, or a discharge without death or serious bodily injury | Class C misdemeanor | None — fine-only offense | $500 |
| Child discharges the firearm and causes death or serious bodily injury to any person, including the child | Class A misdemeanor | Up to 1 year in county jail | $4,000 |
| Sources: Tex. Penal Code §§ 46.13, 12.21, 12.23 | Last reviewed 2026-06-11 | ||
Notice what the enhancement does not cover. If a child gains access and brandishes the gun but never fires it, the charge stays Class C. If the child fires it and causes only property damage or minor injury, the charge still stays Class C — the Class A bump requires a discharge plus death or serious bodily injury. When the facts are worse than this statute's ceiling — multiple unsecured guns, prior warnings, a toddler shot in the home — prosecutors frequently move to a different statute altogether, most often abandoning or endangering a child under § 22.041, a state jail felony.
Subsection (f) contains one of the more unusual provisions in the Penal Code: when the child shot himself or herself and the actor is a member of the child's family as defined by Family Code § 71.003, no peace officer may arrest the actor before the seventh day after the offense. The Legislature wrote a grieving period directly into the arrest rules — an acknowledgment that the person facing this charge is usually also a parent whose child was just hurt or killed.
To convict under § 46.13, the State must prove each of the following beyond a reasonable doubt:
Most § 46.13 cases begin with a 911 call nobody wanted to make: a child found a gun, and either fired it or was caught holding it. The responding officers' reports, body-camera footage, and photographs of where the firearm was kept usually decide the case. Investigators document whether the gun was loaded when recovered, whether a safe, lock box, or trigger lock was present anywhere in the home, where the gun sat relative to the child's reach, and what the adults said in the first minutes — statements like “I always keep it in the nightstand” often become the State's proof of the (b)(2) theory.
Because the base offense is a Class C misdemeanor, the prosecuting authority is usually a city attorney in municipal court or a county attorney in justice court, and the case may arrive by citation rather than arrest. Class A cases — a discharge causing death or serious bodily injury — are filed by information in the county courts at law, frequently alongside a child-endangerment count. The mental-state fight dominates both tiers. Under Queeman, the State cannot rest on the fact that something terrible happened; it must show the storage decision itself grossly deviated from ordinary care, judged from the defendant's standpoint at the time. The Court of Criminal Appeals put it plainly: tragic consequences “do not elevate ordinary negligence to criminal negligence.” Queeman v. State, 520 S.W.3d 616 (Tex. Crim. App. 2017).
A hypothetical: a Frisco parent keeps a loaded pistol in an unlocked nightstand drawer. Their 8-year-old finds it during a sleepover and fires a round into the wall; no one is hurt. The likely charge is the Class C version — the discharge caused no death or serious bodily injury — and the contested element will be criminal negligence: was an unlocked drawer in a room children entered freely a gross deviation from ordinary care, or ordinary carelessness? That is a jury argument, not a foregone conclusion. (This example is hypothetical, not a description of any actual case.)
Section 46.13(c) writes four affirmative defenses directly into the statute. The charge fails when the child's access:
An affirmative defense must be raised by the defense and proved by a preponderance of the evidence, but once raised it goes to the fact-finder alongside the State's case. In Bell v. Gilfour, the Fort Worth Court of Appeals confronted the (c)(1) supervision defense as a jury-charge issue in civil litigation built on the statute — a reminder that these defenses carry enough substance to shape trials even outside criminal court.
Beyond the statutory list, the strongest § 46.13 defenses attack the elements themselves:
A second hypothetical: a McKinney homeowner stores a loaded shotgun in a bedroom closet. A 15-year-old neighbor enters the house through an unlocked back door without permission and takes it. The (c)(3) illegal-entry defense fits squarely — the teen gained access by entering property in violation of the Penal Code — and defense counsel would document it early and press the prosecutor to decline or dismiss. (Again, hypothetical only.)
Yes — and the route depends on the tier. Class C cases in municipal and justice court are frequently resolved through deferred disposition: the court defers a finding, imposes conditions (commonly a firearm-safety course and documented storage changes), and dismisses the case on completion. A dismissed Class C charge is then eligible for expunction under Code of Criminal Procedure chapter 55A, which erases the arrest and citation records. Our guides to expunction and dismissal-based nondisclosure walk through the paperwork.
Class A cases follow standard misdemeanor mechanics. Deferred adjudication ends in a dismissal without conviction and can lead to an order of nondisclosure sealing the record — see the waiting periods on our deferred-adjudication nondisclosure page. Outright dismissals happen too, most often when the readily-dischargeable element collapses, an affirmative defense is documented early, or the equities are overwhelming — as when a grieving parent faces charges over a child's self-inflicted injury. A final conviction, by contrast, is generally permanent: it is not eligible for expunction and sits on a criminal history visible to employers and licensing boards.
L and L Law Group defends firearm-storage cases across the core DFW counties from our Frisco office. Which court hears the case depends on the tier and on who wrote the ticket.
Collin County. Class C citations issued by Frisco, Plano, or McKinney officers are filed in the issuing city's municipal court; citations written by sheriff's deputies go to a justice-of-the-peace precinct. Class A cases are filed by information and heard by the county courts at law at the Collin County Courthouse (the Russell A. Steindam Courts Building), 2100 Bloomdale Road in McKinney. Storage cases involving an injured child commonly run parallel to a DFPS inquiry, and coordinating those two timelines is a core defense task here.
Dallas County. Class A misdemeanors are heard in the county criminal courts at the Frank Crowley Courts Building; city-issued Class C citations move through the Dallas municipal courts. Dallas County runs a high-volume misdemeanor docket, which makes early, organized defense submissions — storage photos, safe receipts, witness statements — disproportionately valuable before a filing decision hardens.
Denton County. County courts at law sit at the Denton County Courts Building in Denton. One recurring wrinkle: § 46.13 is not limited to homes. A loaded handgun left in a truck console, boat compartment, or RV is stored the same way in the statute's eyes, and cases around Lewisville Lake often start exactly there.
Tarrant County. Misdemeanor prosecutions run through the Tim Curry Criminal Justice Center in Fort Worth, with municipal and justice courts handling Class C paper. Discharge cases with injuries draw close prosecutorial review everywhere, and Tarrant is no exception — early mitigation, like safety-course enrollment and documented storage changes, belongs in the first conversation with the State.
The process tracks the tier. In a Class C case, expect a citation with a court date in municipal or justice court rather than handcuffs. You appear or post the appearance bond, enter a plea — enter “not guilty” before negotiating — and the city or county attorney reviews the file. The realistic endpoints are deferred disposition, dismissal, or, rarely, a fine-only trial to a six-person jury. Paying the ticket outright is a conviction; that is the classic unforced error in these cases.
Class A cases follow the standard misdemeanor arc: arrest or warrant, magistration under Code of Criminal Procedure article 15.17 where bond is set, release on conditions, the filing of an information, and a series of announcement and pretrial settings before any plea or trial date. Bond conditions in discharge cases can include surrendering or safely storing other firearms in the home. Two § 46.13-specific wrinkles change the early timeline: the subsection (f) seven-day no-arrest window for family members when the child shot himself or herself, and the near-universal presence of a parallel DFPS/CPS investigation, which runs on its own interview schedule and whose statements can migrate into the criminal file.
Defense counsel's first moves are usually identical in both tiers: photograph the storage setup before anything is moved, gather receipts or photos of safes and locks, identify every adult who had access to the space, and get ahead of the CPS interview calendar. The file built in the first two weeks is frequently the file the case is decided on.
A § 46.13 case rarely travels alone, and the collateral exposure usually matters more than the fine:
Storage cases sit inside a cluster of statutes, and charging decisions move between them based on the facts:
For the broader practice context, start with our weapons charges practice page and the Texas charges encyclopedia.
Co-Founding Partner · Texas Bar No. 24043514
Reggie London co-founded L and L Law Group with a focus on federal criminal defense, complex felony defense, and TEA/SBEC matters. Licensed in Texas, admitted to TXND and TXED.
Co-Founding Partner · Texas Bar No. 24043266
Njeri London co-founded L and L Law Group with a focus on DWI defense, family violence cases, and juvenile defense. Licensed in Texas, admitted to TXND and TXED.
Co-founding partners Reggie London and Njeri London personally handle every case. Free consultation. Frisco, Texas.
Call (972) 370-5060L&L Law Group represents clients across North Texas counties for DWI, assault, drug crimes, juvenile defense, outstanding warrants, bond reduction, and expunction matters.
