☎ Call Today
Criminal Defense • Frisco, Texas
Serving 9 DFW Counties — Collin • Dallas • Denton • Tarrant • Rockwall • Kaufman • Ellis • Johnson • Hunt — Available 24/7
The L and L Law Group team at our Frisco, Texas office — co-founding partners Reggie London and Njeri London with staff
Our Frisco office●Est. 2011
The L and L Law Group team·Frisco, Texas
Weapons Charges · Making a Firearm Accessible to a Child

Texas making a firearm accessible to a child defense — Penal Code § 46.13

In Texas, making a firearm accessible to a child is prosecuted as a Class C misdemeanor — a fine-only offense — and rises to a Class A misdemeanor only when a child discharges the gun and causes death or serious bodily injury. The State must prove criminal negligence, a loaded (readily dischargeable) firearm, and access by a child under 17. L and L Law Group defends § 46.13 cases across Collin, Denton, Dallas, and Tarrant Counties.

A Texas making-a-firearm-accessible-to-a-child charge under Penal Code § 46.13 is a safe-storage offense, not a violent crime. It turns on three contested elements: whether the firearm was readily dischargeable (loaded) under § 46.13(a)(2), whether a child younger than 17 gained access, and whether the responsible adult acted with criminal negligence under § 6.03(d) — a gross deviation from the ordinary standard of care, judged from the actor's standpoint at the time. The base offense is a Class C misdemeanor (fine only, up to $500); it becomes a Class A misdemeanor only if a child discharges the firearm and causes death or serious bodily injury. There is no felony version. The statute also writes in three affirmative defenses under § 46.13(c) and a seven-day arrest delay under § 46.13(f), and Queeman v. State, 520 S.W.3d 616 (Tex. Crim. App. 2017), supplies the demanding criminal-negligence standard that decides most contested § 46.13 cases in DFW courts.

making a firearm accessible to a child: Texas punishment ranges at a glance
ScenarioOffense levelConfinementMax fine
Base offense (child accessed a loaded gun)Class C misdemeanorNone (fine-only)$500
Child discharged the firearm causing death or serious bodily injuryClass A misdemeanorUp to 1 year, county jail$4,000

Ranges per Tex. Penal Code § 46.13 and ch. 12. There is no felony version of this offense; felony exposure in a child-and-gun case comes from separate statutes such as § 22.041.

15 min read 3,000 words Reviewed June 20, 2026 By Reggie London
Direct Answer

Making a firearm accessible to a child under Texas Penal Code § 46.13 is a Class C misdemeanor — a fine-only offense, maximum fine $500 — and 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. To convict, the State must prove three elements beyond a reasonable doubt: that a child younger than 17 gained access to a readily dischargeable (loaded) firearm under § 46.13(a)(2); that the accused failed to secure it or left it where the accused knew or should have known a child would gain access; and that the conduct was criminally negligent under § 6.03(d). Defense work centers on the high criminal-negligence bar under Queeman v. State, the unloaded-firearm defense (the offense reaches only a loaded gun), the three statutory affirmative defenses in § 46.13(c) — supervised lawful use, unauthorized entry, and agricultural use — identity and possession problems in shared households, and suppression of an emotional statement made in the immediate aftermath. Section 46.13(f) bars arresting a family member before the seventh day where a child unintentionally shot himself or herself, giving families a window to retain counsel.

Free case review
Key Takeaways
  • Class C misdemeanor base offense under PC § 46.13 — fine only, up to $500; no jail and no felony version.
  • Class A only on a discharge-plus-injury — up to 1 year in county jail and a $4,000 fine when a child fires the gun and causes death or serious bodily injury.
  • Three elements: a loaded (readily dischargeable) firearm, access by a child under 17, and criminal negligence under § 6.03(d).
  • An unloaded gun is a complete defense — § 46.13(a)(2) reaches only a firearm loaded with ammunition.
  • Three statutory defenses in § 46.13(c) — supervised lawful use, unauthorized entry, and agricultural use — plus a seven-day arrest delay under § 46.13(f).
Quick Case Review · 24/7

Get a free review

Direct to attorney — no call center. Most clients hear back within an hour.

By submitting, you agree to our Privacy Policy. No attorney-client relationship is formed until a written engagement is signed.

Texas Bar
Licensed since 2004
TXND · TXED
Federal Court Admitted
4.7 ★
Google Reviewed
9 DFW
Counties Served
24/7
Direct-to-Attorney Line
40+
Years Combined
Texas Bar Licensed TXND & TXED Federal 24/7 Jail Release Se Habla Español
Texas Legal Context

What the statute actually requires

Controlling statute Texas Penal Code § 46.13
Analytical framework Making a firearm accessible to a child under Penal Code § 46.13 is a Class C misdemeanor (fine only) — and a Class A misdemeanor only when a child discharges the firearm and causes death or serious bodily injury — that requires proof of a readily dischargeable (loaded) firearm under § 46.13(a)(2), access by a child younger than 17 under § 46.13(a)(1), a storage failure, and criminal negligence under § 6.03(d). The defining battles are the criminal-negligence standard under Queeman v. State, the loaded-firearm question under Bell v. Gilfour, and the three affirmative defenses written into § 46.13(c).
6 Texas-specific insights
  1. An unloaded gun ends the case. Section 46.13(a)(2) defines a "readily dischargeable firearm" as one loaded with ammunition, whether or not a round is in the chamber. If the firearm was not loaded when the child gained access, the offense does not apply at all — no matter how the child got hold of it. In Lesley Bell v. Roy Gilfour, No. 02-16-00031-CV (Tex. App.—Fort Worth July 20, 2017), the court treated whether a firearm was readily dischargeable as a genuine fact question for the jury where the adult had inspected the revolver to confirm it was unloaded.
  2. Criminal negligence is a demanding standard, not ordinary carelessness. In Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017), the Court of Criminal Appeals held that the carelessness required for criminal negligence is "significantly higher than that for civil negligence" and is judged "from the standpoint of the actor at the time that the allegedly negligent act occurred" — not by the resultant harm. Reasonable storage steps defeat the gross-deviation standard even when the outcome was tragic.
  3. There is no felony version of § 46.13. The statute tops out at a Class A misdemeanor, and only on a discharge-plus-serious-injury enhancement. Felony exposure in a child-and-gun case comes from separate statutes — most often endangering a child under § 22.041 — so a core defense task is keeping the case correctly classified under § 46.13 rather than recharged upward.
  4. The Legislature wrote in three affirmative defenses. Section 46.13(c) makes it a complete defense, provable by a preponderance, that the child's access was (1) supervised lawful use for hunting or sport under § 46.13(c)(1); (3) gained by entering property in violation of the Penal Code — a burglary or criminal trespass — under § 46.13(c)(3); or (4) during a legitimate agricultural enterprise under § 46.13(c)(4).
  5. The seven-day arrest delay is unique. Section 46.13(f) bars arresting a family member of a child who unintentionally and with criminal negligence caused the child's own injury or death by discharging the firearm before the seventh day after the offense, unless a court issues a warrant sooner. That pause exists because the typical defendant is a grieving parent, and it is the window in which counsel can preserve storage evidence and head off an uncounseled statement.
  6. A § 46.13 conviction does not carry the firearms-rights fallout clients fear. It does not trigger the felon-in-possession statutes — neither Penal Code § 46.04 nor 18 U.S.C. § 922(g) attaches — and it is not a family-violence offense. A base Class C generally does not affect a Texas License to Carry; only a Class A conviction triggers a five-year LTC ineligibility under Government Code § 411.172.

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.

ScenarioClassificationConfinementMaximum fine
Base offense (child accessed a loaded gun)Class C misdemeanorNone$500
Child discharged the firearm causing death or serious bodily injuryClass A misdemeanorUp 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.

Defense Strategy

What we evaluate first

Because § 46.13 has a narrow definition and three built-in statutory defenses, there are more ways to defeat the charge than most clients expect. We evaluate every one before charting a path — the unloaded-firearm and criminal-negligence theories first, then the § 46.13(c) defenses, identity, and suppression.

  1. The firearm was not loaded — § 46.13(a)(2)
    This is the cleanest defense and it goes to an element, not just to mitigation. The statute reaches only a readily dischargeable — loaded — firearm. In Bell v. Gilfour, No. 02-16-00031-CV (Tex. App.—Fort Worth July 20, 2017), the court held that whether a firearm was "readily dischargeable" was a genuine fact issue for the jury, where the evidence showed the adult had inspected the revolver to confirm it was unloaded before the child took it and the child later filed down a bullet trying to make it fit. Where the State cannot prove the gun was loaded at the moment of access, the offense fails.
  2. The conduct was not criminally negligent — § 6.03(d)
    Ordinary carelessness is not a crime. Evidence of reasonable storage precautions — a safe, a cable or trigger lock, separate storage of ammunition, a locked closet or vehicle compartment — defeats the gross-deviation standard Queeman v. State, 520 S.W.3d 616 (Tex. Crim. App. 2017), requires. The conduct is judged from the actor's standpoint at the time of storage, not by the resultant harm, so where a client took recognizable safety steps the State's theory collapses into hindsight.
  3. Supervised lawful use — § 46.13(c)(1)
    The first of three statutory affirmative defenses. It is a defense that the child's access was supervised by a person 18 or older and was for hunting, sporting, or another lawful purpose. The defense must be raised and proved by a preponderance of the evidence, but it is a complete answer to the charge. We develop the supervision and lawful-purpose facts — who was present, what activity was underway, and how access was controlled.
  4. Unauthorized entry — § 46.13(c)(3)
    It is a defense that the child gained access by entering property in violation of the Penal Code — a burglary, criminal trespass, or break-in scenario. If a child broke in or took the gun without permission, this defense applies. The defense develops how the child came to be where the firearm was stored — uninvited entry, forced entry, or access to a space the child had no permission to enter.
  5. Agricultural use — § 46.13(c)(4)
    The third statutory affirmative defense. It is a defense that the child gained access during a legitimate agricultural enterprise. In rural Collin, Denton, and Ellis County matters this defense can be decisive, and the defense develops the agricultural-use facts — the nature of the enterprise, the role of the firearm, and the circumstances of the child's access.
  6. Identity, ownership, and possession problems
    The statute reaches the person responsible for the firearm's storage, but in a shared household it is not always obvious who that is. Where multiple adults had access to the gun, where the accused did not own or control it, or where the firearm belonged to someone else entirely, the State may be unable to prove the accused was the person who failed to secure it. Charging the wrong adult is a recurring weakness in these cases.
  7. Suppression of an emotional statement
    These cases almost always involve a parent in shock. Investigators frequently obtain a recorded statement in the immediate aftermath, when a grieving adult is most likely to say "this is my fault." Those words are an expression of grief, not a legal admission of criminal negligence, and we move to keep them from becoming the centerpiece of the State's proof — through suppression where the statement was unwarned or involuntary, and through context at trial where it was not.
Defense Timeline

How we build the case

A Texas § 46.13 defense follows a predictable arc — the seven-day window and scene preservation (day 0-7), discovery and storage investigation (week 1-8), classification and motion practice (months 2-6), then trial readiness or resolution.

  1. Day 0-7
    Seven-day window, counsel, scene preservation
    Where a child unintentionally discharged the firearm, § 46.13(f) bars arrest of a family member before the seventh day — a defined window to retain counsel before any charging decision hardens. Preserve storage evidence (safe, lock box, trigger lock, separate ammunition), document the precautions actually taken, photograph the storage location, identify household witnesses, and avoid any uncounseled recorded statement to investigators.
  2. Week 1-8
    Discovery, storage investigation, theory development
    Article 39.14 discovery requests; review of offense reports, scene photographs, and any recorded statements; reconstruct the storage at the moment of access (loaded vs unloaded, secured vs accessible); evaluate the § 46.13(c) affirmative defenses (supervised lawful use, unauthorized entry, agricultural use); assess whether the firearm was readily dischargeable; preliminary criminal-negligence analysis under Queeman.
  3. Month 2-6
    Classification, motion practice, plea negotiation
    Keep the case correctly classified under § 46.13 (Class C base) rather than recharged as child endangerment under § 22.041; motion to suppress an unwarned or involuntary statement; develop the unloaded-firearm and reasonable-storage theories; plea negotiation including dismissal, deferred disposition in justice or municipal court, or deferred adjudication, with expunction or nondisclosure planning for the surviving record.
  4. Month 6+
    Trial readiness or resolution
    At trial the State must prove a readily dischargeable (loaded) firearm, access by a child under 17, a storage failure, and criminal negligence judged from the actor's standpoint at the time, not by the resultant harm. The defense presents reasonable-storage and unloaded-firearm evidence, requests § 46.13(c) affirmative-defense instructions where supported, and argues the gross-deviation standard; deferred disposition or deferred adjudication structures the outcome where trial is unfavorable, followed by an expunction or nondisclosure where eligible.

Charged under § 46.13 in Collin, Denton, Dallas, or Tarrant County?

L and L Law Group defends making-a-firearm-accessible-to-a-child cases at every level — from a fine-only Class C through a Class A enhancement. Free initial consultation.

Call (972) 370-5060

Frequently asked questions

Nine questions we answer most often about Texas making-a-firearm-accessible-to-a-child cases — whether it is a felony, what the State must prove, the criminal-negligence standard, the unloaded-firearm defense, the statutory defenses, the seven-day rule, gun rights, and clearing the record.

Is making a firearm accessible to a child a felony in Texas?

No. Under Penal Code § 46.13 it is a Class C misdemeanor in its base form — a fine-only offense — and rises only to a Class A misdemeanor when a child actually discharges the firearm and causes death or serious bodily injury. It is never a felony. Felony exposure in a child-and-gun case comes from separate statutes, such as endangering a child under § 22.041.

What does the State have to prove to convict under § 46.13?

The State must prove three things: that a child younger than 17 gained access to a readily dischargeable (loaded) firearm; that you either failed to secure it or left it where you knew or should have known the child would reach it; and that you did so with criminal negligence. Miss any one of those and the case fails. Criminal negligence is the highest hurdle and the one most cases turn on.

What counts as criminal negligence, and how is it a defense?

Criminal negligence is more than carelessness. The State must show your failure to perceive a substantial and unjustifiable risk was a gross deviation from ordinary care, judged from your standpoint at the time. In Queeman v. State the Court of Criminal Appeals stressed that this carelessness is significantly higher than ordinary civil negligence. Reasonable storage steps — a safe, a lock, a high shelf — defeat that mental state even when the result was tragic.

Does § 46.13 apply if my gun was unloaded?

No. The statute only reaches a readily dischargeable firearm, which § 46.13(a)(2) defines as one loaded with ammunition, whether or not a round is in the chamber. An unloaded gun — even one stored near ammunition — falls outside the offense. In Bell v. Gilfour the Fort Worth Court of Appeals treated whether a firearm was readily dischargeable as a genuine fact question for the jury.

What if the child broke in or took the gun without permission?

That triggers a statutory defense. Section 46.13(c)(3) makes it an affirmative defense that the child gained access by entering property in violation of the Penal Code — a burglary or criminal-trespass scenario. The statute also carves out access during supervised lawful use such as hunting or sport shooting under § 46.13(c)(1) and agricultural use under § 46.13(c)(4).

Can the police arrest me right away if my own child was hurt?

Usually not immediately. 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 warrant issues sooner. The Legislature built in that pause because these cases almost always involve grieving parents. Those early days are the window to involve a defense lawyer before charging decisions harden.

Will a § 46.13 charge cost me my gun rights or License to Carry?

A § 46.13 conviction does not trigger the felon-in-possession statutes — neither Penal Code § 46.04 nor 18 U.S.C. § 922(g) attaches, and it is not a family-violence offense. A Class A conviction can, however, affect Texas License to Carry eligibility for five years under Government Code § 411.172, which is one more reason to keep the case at the Class C level or off your record entirely.

Can a making-a-firearm-accessible-to-a-child charge be kept off my record?

Often, yes. A Class C charge resolved by deferred disposition and dismissed can usually be expunged under Code of Criminal Procedure chapter 55A. A Class A case taken on deferred adjudication and dismissed points toward an order of nondisclosure that seals the record from most public view. A final conviction, by contrast, generally stays, which is why the resolution path matters from day one.

Do I need a lawyer if it was a genuine accident and I feel responsible?

Yes — feeling responsible is not the same as being criminally negligent, and the two are easy to confuse when grief is involved. A lawyer can document the storage precautions you took, preserve the § 46.13(c) and (f) protections, and keep an emotional statement to investigators from becoming the centerpiece of the State's case. Talk to counsel before you give any recorded account of what happened.

References

All citations link to statutes.capitol.texas.gov for primary text. Footnote numbers in the body link here; the ↩ arrow returns to the citing paragraph.

  1. Tex. Penal Code § 46.13 — Making a firearm accessible to a child. ↩
  2. Tex. Penal Code § 6.03(d) — Definitions of culpable mental states (criminal negligence). ↩
  3. Queeman v. State, 520 S.W.3d 616 (Tex. Crim. App. 2017) — criminal-negligence standard. ↩
  4. Lesley Bell v. Roy Gilfour, No. 02-16-00031-CV (Tex. App.—Fort Worth July 20, 2017) — "readily dischargeable" as a fact question. ↩
  5. Tex. Penal Code § 12.23 — Class C misdemeanor punishment (fine-only). ↩
  6. Tex. Penal Code § 12.21 — Class A misdemeanor punishment range. ↩
  7. Tex. Code Crim. Proc. ch. 55A — Expunction of criminal records. ↩
  8. Tex. Penal Code § 22.041 — Abandoning or endangering a child (felony-level alternative). ↩
40+
Years
Combined defense experience
$0
Consult
Free initial consultation
24/7
Available
Direct-to-attorney for jail release
About the authors

The attorneys behind this page

Reggie London

Reggie London

Co-Founding Partner · Criminal Defense Attorney

Admitted in Texas, TXND, TXED, and the U.S. Court of Appeals for the Fifth Circuit. Practice spans DWI, drug, weapons, theft, and process crimes — plus federal practice.

Njeri London

Njeri London

Co-Founding Partner · Criminal Defense Attorney

Texas-licensed criminal defense attorney with deep Fourth Amendment motion practice. Focus: suppression hearings, drug-crime defense, federal-practice support.

From the blog

Related writing on this topic

Free Consultation · 24/7

Talk to an attorney — not a screener.

Tell us about your case. Most clients hear back within an hour. Often within minutes.

5899 Preston Rd, Ste 101 · Frisco, TX 75034

By submitting, you agree to our Privacy Policy.

Call (972) 370-5060

Attorney Advertising

This website is for general information purposes only and constitutes attorney advertising under the Texas Disciplinary Rules of Professional Conduct. Nothing on this site should be taken as legal advice for any individual case or situation. Receipt or viewing does not create an attorney–client relationship.

Past results do not guarantee similar outcomes. Each case is unique and must be evaluated on its own facts and circumstances.

L and L Law Group, PLLC attorneys are licensed to practice in the State of Texas. Njeri London (Texas Bar No. 24043266) and Reggie London (Texas Bar No. 24043514) are the attorneys responsible for the content of this site. None of the attorneys at L and L Law Group, PLLC are Board Certified by the Texas Board of Legal Specialization unless specifically and separately stated.

Please do not transmit any confidential information to L and L Law Group, PLLC by email, web form, or telephone before a written engagement is in place. Privacy Policy.

Service Areas

L&L Law Group represents clients across North Texas counties for DWI, assault, drug crimes, juvenile defense, outstanding warrants, bond reduction, and expunction matters.

Call Email Map Top
developed by MPR Digital Legal Services