What is making a firearm accessible to a child under Texas law?
Texas Penal Code § 46.13 is a safe-storage offense: a person commits it when a child gains access to a readily dischargeable (loaded) firearm and the person, with criminal negligence, either failed to secure it or left it where the person knew or should have known the child would reach it. The base offense is a Class C misdemeanor — fine only.
Making a firearm accessible to a child is a safe-storage offense, not a violent crime. Section 46.13 says a person commits an offense when a child gains access to a readily dischargeable firearm and that person, with criminal negligence, either failed to secure the firearm or left it in a place the person knew or should have known the child would reach. A Texas appellate court quoted the operative text directly: "A person commits an offense if a child gains access to a readily dischargeable firearm and the person with criminal negligence . . . left the firearm in a place to which the person knew or should have known the child would gain access." Lesley Bell v. Roy Gilfour, No. 02-16-00031-CV (Tex. App.—Fort Worth July 20, 2017).
- Child — § 46.13(a)(1)
- A "child" under § 46.13(a)(1) is a person younger than 17 years of age. Access to a firearm by a person 17 or older places the situation outside § 46.13 entirely — a point that matters in households with teenagers near the statutory line.
- Readily dischargeable firearm — § 46.13(a)(2)
- A "readily dischargeable firearm" under § 46.13(a)(2) is one that is loaded with ammunition, whether or not a round is in the chamber. This definition is the hinge of the whole statute: if the gun was not loaded, the offense does not apply at all, no matter how a child got hold of it. The law is aimed at the narrow, dangerous combination of a loaded gun plus a child plus a careless adult — not at lawful gun ownership.
- The storage failure — § 46.13(b)
- The State must show the person either failed to take reasonable steps to secure the firearm, or left it in a place the person knew or should have known a child would gain access. Documented storage steps — a safe, a lock box, a trigger or cable lock, a high or locked location, separate storage of ammunition — cut directly against this element.
- Criminal negligence — § 6.03(d)
- This is the mental-state element and the one most cases turn on. Under § 6.03(d), criminal negligence means failing to perceive a substantial and unjustifiable risk where that failure is a gross deviation from the standard of care an ordinary person would exercise. Ordinary carelessness is not enough — the gap between an ordinary mistake and a crime is exactly where the defense lives.
The provision has been on the books since 1995, long before the constitutional-carry debates of the past decade, and it sits in the same Penal Code chapter as the weapons offenses people more commonly recognize. What makes § 46.13 unusual is its mental state. Most weapons crimes punish intentional or knowing conduct. This one punishes a failure — a lapse in storing a loaded gun — and only when that lapse rises to the level of criminal negligence. Understanding that distinction is the first step in defending one of these cases.
Elements the State must prove
To convict under § 46.13, the State must prove every element beyond a reasonable doubt: a child younger than 17 gained access, the firearm was readily dischargeable (loaded), the accused failed to secure it or left it accessible, and the conduct was criminally negligent. Each element is a separate point of attack.
To convict under § 46.13, the State must prove every element beyond a reasonable doubt. Each element is a separate point of attack, and the prosecution's failure on any one of them defeats the charge.
- A child younger than 17 gained access
- The person who reached the firearm must have been under 17 at the time. If the person was 17 or older, § 46.13 does not apply — a point that matters in homes with teenagers near the statutory line.
- The firearm was readily dischargeable
- It must have been loaded with ammunition when the child gained access. An unloaded firearm, or one stored separately from its ammunition, falls outside the statute. Whether a gun was loaded at the moment of access is frequently a genuine fact dispute.
- The accused failed to secure it or left it accessible
- The State must show the person either failed to take reasonable steps to secure the firearm, or left it in a place the person knew or should have known a child would gain access. Documented storage steps — a safe, a lock box, a trigger lock, a high or locked location — cut against this element.
- The conduct was criminally negligent
- This is the mental-state element and the one most cases turn on. Under § 6.03(d), criminal negligence means failing to perceive a substantial and unjustifiable risk where that failure is a gross deviation from ordinary care. Ordinary carelessness is not enough.
What are the penalties for a § 46.13 charge?
The base offense is a Class C misdemeanor — fine only, up to $500, with no jail time. It rises to a Class A misdemeanor (up to 1 year in county jail and a $4,000 fine) only when a child discharges the firearm and causes death or serious bodily injury. There is no felony version of this offense.
The punishment ladder for making a firearm accessible to a child is short and, by Texas standards, mild — until a child is hurt. The base offense is a Class C misdemeanor, the lowest tier in Texas criminal law, carrying a fine only and no jail time. The charge rises to a Class A misdemeanor in just one situation: when the child discharges the firearm and causes death or serious bodily injury. There is no felony version of this offense.
| Scenario | Classification | Confinement | Maximum fine |
|---|---|---|---|
| Base offense (child accessed a loaded gun) | Class C misdemeanor | None | $500 |
| Child discharged the firearm causing death or serious bodily injury | Class A misdemeanor | Up to 1 year, county jail | $4,000 |
Two practical points follow from that table. First, a Class C is handled in justice or municipal court and is fine-only, which means the realistic goals are dismissal, deferred disposition, and keeping the matter off a permanent record — not avoiding prison. Second, the Class A enhancement requires both a discharge and a serious-injury or fatal result; a child who merely handles or finds a loaded gun, without firing it, keeps the case at the Class C level. Prosecutors sometimes reach for related felony statutes when a child is badly hurt, so a major part of the defense is keeping the case correctly classified under § 46.13 rather than recharged as child endangerment.
How prosecutors prove criminal negligence
Criminal negligence is the heart of a § 46.13 case and a demanding standard. Under Queeman v. State, the failure to perceive a substantial and unjustifiable risk must be a gross deviation from ordinary care, judged from the actor's standpoint at the time — not by the resultant harm.
Criminal negligence is the heart of a § 46.13 case, and it is a demanding standard. The Texas Court of Criminal Appeals has held that a criminally negligent defendant "ought to have been aware that there was a substantial and unjustifiable risk" of the harm, and that "his failure to perceive the risk constituted a gross deviation from the standard of care an ordinary person would have exercised under like circumstances." Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). The court has been emphatic that "the carelessness required for criminal negligence is significantly higher than that for civil negligence." Id.
Two features of that standard create real defenses. First, the conduct is judged "from the standpoint of the actor at the time that the allegedly negligent act occurred." Id. at 623. That means the question is not whether, in hindsight, something terrible happened — it is whether, at the moment the gun was stored, the storage choice was a gross deviation from what a reasonable person would do. Second, Queeman warns that the inquiry must focus on the conduct itself "and not by the resultant harm." A tragic outcome does not retroactively convert reasonable storage into a crime.
Firearms do carry a heightened expectation of care — Texas courts describe them as dangerous instrumentalities that must be handled carefully. But that cuts both ways. An adult who took genuine precautions — locking the gun, storing it unloaded, keeping it out of a child's known reach — has met the standard of care even if a determined child defeats those precautions. The defense work is to reconstruct what the client actually did at the time of storage and show that it was, at worst, an ordinary lapse rather than the gross deviation the statute requires.
Accidental tragedies and the seven-day rule
Section 46.13(f) bars arresting a family member of a child who unintentionally shot himself or herself before the seventh day after the offense, unless a court issues a warrant sooner. That window is the most important phase of a serious § 46.13 case — the time to retain counsel and preserve evidence.
Section 46.13 is one of the few criminal statutes that openly acknowledges the human reality behind the charge. Subsection (f) provides that an arrest of a family member of a child cannot be made before the seventh day after the date on which the offense is alleged to occur, when the child unintentionally and with criminal negligence caused the child's own injury or death by discharging the firearm — unless a court issues an arrest warrant sooner. The Legislature built in that pause because the typical defendant in a serious § 46.13 case is a parent who has just lost or nearly lost a child.
That window matters enormously to the defense. Those first days are when storage evidence can be preserved, when a recorded statement can be avoided, and when a lawyer can engage with investigators before a charging decision hardens. Families who use the seven-day period to retain counsel are in a far better position than those who give an uncounseled account in the first hours. We treat the immediate aftermath of one of these tragedies as the most important phase of the case, not a formality to be sorted out later.
County-by-county practice notes
A base § 46.13 charge is a Class C handled in justice or municipal court; a Class A enhancement moves the case into the county criminal courts. That split shapes where a case lands across Collin, Dallas, Denton, and Tarrant Counties.
A base § 46.13 charge is a Class C misdemeanor, which in Texas is filed and heard in justice of the peace or municipal court rather than the county criminal courts that handle Class A and B cases. A Class A enhancement, by contrast, moves the case into the county criminal courts. That split shapes where a case lands across the four DFW counties we serve from our Frisco office.
- Collin County. Misdemeanor cases at the Class A and B level are heard at the Collin County Courthouse (Russell A. Steindam Courts Building) in McKinney, while fine-only Class C matters originate in the county's justice of the peace courts and Frisco-area municipal courts.
- Dallas County. County criminal courts sit at the Frank Crowley Courts Building in Dallas. A Class A § 46.13 enhancement would be filed there; a Class C base offense stays in the originating JP or municipal court.
- Denton County. Misdemeanor cases are heard at the Denton County Courts Building in Denton, with Class C matters in the county's justice and municipal courts.
- Tarrant County. County criminal courts sit at the Tim Curry Criminal Justice Center in Fort Worth.
The practical takeaway is that the classification decision — Class C versus a Class A enhancement, or a felony recharacterization — determines which courthouse, which prosecutors, and which range of outcomes a family is facing. Keeping a case correctly framed under § 46.13 is often the single most consequential thing a defense lawyer does early on.
Collateral consequences
A § 46.13 conviction does not trigger the felon-in-possession statutes and is not a family-violence offense, so the federal firearms bar does not attach. A base Class C generally does not affect a Texas License to Carry; a Class A conviction triggers a five-year LTC ineligibility under Government Code § 411.172.
A § 46.13 conviction does not carry the firearms-rights fallout that clients understandably fear. It does not trigger the felon-in-possession statutes — neither Penal Code § 46.04 nor 18 U.S.C. § 922(g) attaches to this misdemeanor — and it is not a family-violence offense, so the federal firearms bar for domestic-violence misdemeanants does not apply. A base Class C conviction generally does not affect a Texas License to Carry.
A Class A conviction is a different matter. Under Government Code § 411.172, a Class A misdemeanor conviction can make a person ineligible for a Texas License to Carry for five years from the date of conviction or release. That five-year disqualification is one more reason the classification fight matters: keeping the case at the Class C level, or off the record entirely, protects carry eligibility that a Class A conviction would suspend. Beyond licensing, any conviction can surface on background checks for employment, housing, or professional licensing, so even a fine-only outcome is worth resolving in a way that avoids a permanent public record.
Can a § 46.13 charge be dismissed or expunged?
Yes — and the resolution path determines what your record looks like afterward. A Class C resolved by deferred disposition and dismissed can usually be expunged under CCP chapter 55A; a dismissed Class A deferred adjudication points toward an order of nondisclosure. A final conviction generally stays.
Yes — and the resolution path determines what your record looks like afterward. A Class C charge resolved by deferred disposition and then dismissed can usually be expunged under Code of Criminal Procedure chapter 55A, which erases the record of the arrest and charge. A Class A case taken on deferred adjudication and dismissed generally points toward an order of nondisclosure that seals the record from most public view rather than a full expunction.
The critical point is that these options usually require the case to end in dismissal, not conviction — a final conviction generally stays on the record. That is why the defense strategy from day one is built around dismissal, diversion, or deferred disposition, and why classification matters so much: a Class C handled correctly is far easier to wipe clean than a Class A conviction. We map the available record-clearing path at the outset and steer the resolution toward it.
