Texas Penal Code 42.12 – Discharge of Firearm in Certain Municipalities

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/ Texas Penal Code 42.12 – Discharge of Firearm in Certain Municipalities

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Texas Penal Code 42.12 – Discharge of Firearm in Certain Municipalities

WHAT IS DISCHARGE OF FIREARM IN CERTAIN MUNICIPALITIES IN TEXAS?

The Texas law against discharging a firearm in certain municipalities prohibits firing a gun within city limits, if the city’s population is at least 100,000 people.

WHAT IS THE DISCHARGE OF FIREARM IN CERTAIN MUNICIPALITIES LAW IN TEXAS?

Tex. Penal Code § 42.12. DISCHARGE OF FIREARM IN CERTAIN MUNICIPALITIES.

(a) A person commits an offense if the person recklessly discharges a firearm inside the corporate limits of a municipality having a population of 100,000 or more.

(b) An offense under this section is a Class A misdemeanor.

(c) If conduct constituting an offense under this section also constitutes an offense under another section of this code, the person may be prosecuted under either section.

(d) Subsection (a) does not affect the authority of a municipality to enact an ordinance which prohibits the discharge of a firearm.

WHAT IS THE PENALTY CLASS FOR DISCHARGE OF FIREARM IN CERTAIN MUNICIPALITIES IN TEXAS?

Discharging a firearm within city limits is a Class A misdemeanor, punishable by up to one year in county jail.

WHAT IS THE PUNISHMENT RANGE FOR DISCHARGE OF FIREARM IN CERTAIN MUNICIPALITIES IN TEXAS?

Discharging a firearm in certain municipalities, a Class A misdemeanor, carries a possible jail sentence of up to one year, and a maximum fine of $4,000.

WHAT ARE THE PENALTIES FOR DISCHARGE OF FIREARM IN CERTAIN MUNICIPALITIES IN TEXAS?

A person charged with discharging a firearm in certain municipalities may be eligible for probation after a conviction, or deferred adjudication without a conviction, for a maximum period of two years.

WHAT ARE THE DEFENSES TO DISCHARGE OF FIREARM IN CERTAIN MUNICIPALITIES IN TEXAS?

The State must allege in the information, or charging instrument, the specific acts of recklessness. The most common defense to discharging a firearm within city limits is to negate the alleged mental state, whether through a pre-trial motion to quash the information, or during trial before a jury.

What are examples of reckless discharge of a firearm in Texas? Texas Penal Code Section 6.03 explains a person is criminally reckless “when he is aware of but consciously disregards a substantial and unjustifiable risk,” which “constitutes a gross deviation from the standard of care that an ordinary person would exercise under all circumstances as viewed from the actor’s standpoint.”In the context of discharging a firearm within densely-populated city limits, a person acts with criminal recklessness if there is a substantial likelihood of shooting a nearby person or thing of value.For example, firing shots into the air in an apartment complex parking lot could be considered reckless, given the possible presence of residents in the immediate vicinity. Firing shots directly into a crowd is reckless, and fits the felony charge of deadly conduct, or even aggravated assault with a deadly weapon, depending on the circumstances.

WHAT IS THE STATUTE OF LIMITATIONS FOR DISCHARGE OF FIREARM IN CERTAIN MUNICIPALITIES IN TEXAS?

The limitation period for discharge of a firearm in certain municipalities, a Class A misdemeanor, is two years.

DISCHARGE OF FIREARM IN CERTAIN MUNICIPALITIES IN TEXAS

Texas law criminalizes discharging a firearm in densely populated cities, with the goal of reducing accidental shootings of bystanders.

TEXAS DISCHARGE OF FIREARM IN CERTAIN MUNICIPALITIES COURT CASES

The case law regarding discharge of a firearm in certain municipalities in Texas shows the necessity of specifically alleging how a person was reckless.

In State v. Rodriguez, the State alleged the defendant recklessly discharged a firearm within city limits “by pulling the trigger on a firearm which contained ammunition and was operable.” The trial court and the court of appeals held the information was defective because it failed to allege recklessness.The Texas Court of Criminal Appeals agreed, holding this charging language pled a tautology: “The defendant recklessly discharged a firearm because he discharged a firearm.” If that were the standard, people could be punished for shooting a robber coming into their home, or a rattlesnake lying in the bushes, which are not reckless under the statute.

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CHARGES DISMISSED

DRIVING WHILE INTOXICATED .15

Driving facts involved failing to maintain a single lane and speeding. Client refused breath test and forced law enforcement to obtain search warrant for blood. Blood test result was not used after challenge from Defense, and State waived and abandoned charge.

CHARGES DISMISSED

DRIVING UNDER THE INFLUENCE

Client was a college student, worried about the collateral consequences of an alcohol offense. After negotiation and review of the traffic stop, the case was dismissed. Client received no criminal conviction. The charge was later expunged and deleted from client’s record.

CHARGES DISMISSED

DRIVING WHILE INTOXICATED .15+

Client was involved in minor accident. Client was at fault in accident. A young executive, client was concerned that a criminal conviction for DWI would result in termination. After review of the traffic stop, it was clear the officer lacked probable cause for arrest.

CHARGES DISMISSED

DWI 2ND

Client, a military veteran, was facing up to one year in jail. State could not prove intoxication by alcohol, and was prepared to proceed on loss of use by marijuana. After challenging the State to prove that marijuana was ingested at or near time of driving, and that marijuana impaired client’s driving, the State dismissed the case on the day of trial.

CHARGES DISMISSED

DRIVING UNDER THE INFLUENCE

Driving facts involved a false claim by police that taillight was out. After challenging the reasonable suspicion for the traffic stop, the State was forced to dismiss the case when video did not match police report. Client has since expunged arrest, and has no criminal record.

CHARGES DISMISSED

DRIVING UNDER THE INFLUENCE

Client is a public school teacher and faced immediate termination upon conviction. The facts of the case were bad. State was unwilling to budge in negotiation, and matter was set for trial – the last shot at avoiding a conviction and preserving client’s livelihood. State was forced to dismiss on day of trial. Client has no criminal record, and has since expunged the DWI arrest.

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