Sec. 46.05. PROHIBITED WEAPONS.
(a) A person commits an offense if the person intentionally or knowingly possesses, manufactures, transports, repairs, or sells:
(1) any of the following items, unless the item is registered in the National Firearms Registration and Transfer Record maintained by the Bureau of Alcohol, Tobacco, Firearms and Explosives or otherwise not subject to that registration requirement or unless the item is classified as a curio or relic by the United States Department of Justice:
(A) an explosive weapon; or
(B) a machine gun;
(2) armor-piercing ammunition;
(3) a chemical dispensing device;
(4) a zip gun;
(5) a tire deflation device; or
(6) an improvised explosive device.
(b) It is a defense to prosecution under this section that the actor's conduct was incidental to the performance of official duty by the armed forces or national guard, a governmental law enforcement agency, or a correctional facility.
(c) Repealed by Acts 2015, 84th Leg., R.S., Ch. 69 , Sec. 2, eff. September 1, 2015.
(d) It is an affirmative defense to prosecution under this section that the actor's conduct:
(1) was incidental to dealing with a tire deflation device solely as an antique or curio;
(2) was incidental to dealing with armor-piercing ammunition solely for the purpose of making the ammunition available to an organization, agency, or institution listed in Subsection (b); or
(3) was incidental to dealing with a tire deflation device solely for the purpose of making the device available to an organization, agency, or institution listed in Subsection (b).
(e) Except as otherwise provided by this subsection, an offense under this section is a felony of the third degree. An offense under Subsection (a)(5) is a state jail felony.
(f) It is a defense to prosecution under this section for the possession of a chemical dispensing device that the actor is a security officer and has received training on the use of the chemical dispensing device by a training program that is:
(1) provided by the Texas Commission on Law Enforcement; or
(2) approved for the purposes described by this subsection by the Texas Private Security Board of the Department of Public Safety.
(g) In Subsection (f), "security officer" means a commissioned security officer as defined by Section 1702.002, Occupations Code, or a noncommissioned security officer registered under Section 1702.221, Occupations Code.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1975, 64th Leg., p. 918, ch. 342, Sec. 15, eff. Sept. 1, 1975; Acts 1983, 68th Leg., p. 2650, ch. 457, Sec. 2, eff. Sept. 1, 1983; Acts 1983, 68th Leg., p. 4831, ch. 852, Sec. 2, eff. Sept. 1, 1983; Acts 1987, 70th Leg., ch. 167, Sec. 5.01(a)(47), eff. Sept. 1, 1987; Acts 1991, 72nd Leg., ch. 229, Sec. 2, eff. Sept. 1, 1991; Renumbered from Penal Code Sec. 46.06 and amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 2003, 78th Leg., ch. 1071, Sec. 1, eff. Sept. 1, 2003.
Amended by:
Acts 2005, 79th Leg., Ch. 1035 (H.B. 1132), Sec. 2.01, eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 1278 (H.B. 2303), Sec. 7, eff. September 1, 2005.
Acts 2011, 82nd Leg., R.S., Ch. 920 (S.B. 1416), Sec. 2, eff. September 1, 2011.
Acts 2013, 83rd Leg., R.S., Ch. 93 (S.B. 686), Sec. 2.60, eff. May 18, 2013.
Acts 2013, 83rd Leg., R.S., Ch. 960 (H.B. 1862), Sec. 1, eff. September 1, 2013.
Acts 2015, 84th Leg., R.S., Ch. 69 (S.B. 473), Sec. 1, eff. September 1, 2015.
Acts 2015, 84th Leg., R.S., Ch. 69 (S.B. 473), Sec. 2, eff. September 1, 2015.
Acts 2017, 85th Leg., R.S., Ch. 155 (H.B. 1819), Sec. 1, eff. September 1, 2017.
Acts 2017, 85th Leg., R.S., Ch. 814 (H.B. 913), Sec. 2, eff. September 1, 2017.
Acts 2019, 86th Leg., R.S., Ch. 216 (H.B. 446), Sec. 2, eff. September 1, 2019.
Acts 2019, 86th Leg., R.S., Ch. 467 (H.B. 4170), Sec. 13.001, eff. September 1, 2019.
Acts 2021, 87th Leg., R.S., Ch. 642 (H.B. 957), Sec. 2, eff. September 1, 2021.
Acts 2025, 89th Leg., R.S., Ch. 845 (S.B. 1596), Sec. 1, eff. September 1, 2025.
Notes of Decisions
United States v. Diaz-Diaz, 327 F.3d 410 (5th Cir. 2003).
· cites it 7× “Diaz, a citizen of Honduras, was convicted in Texas state court in 1997 for possession of a prohibited weapon — a short-barrel firearm — in violation of Tex. Penal Code § 46.05. Diaz was deported in 1998.”
Ex Parte Jimenez, 361 S.W.3d 679 (Tex. Crim. App. 2012).
· cites it 6× “" TEX. PENAL CODE ANN. § 46.05 (1973). Although this phrase remains in the statute as it exists today, other aspects of the statute are substantively different than when Applicant was charged with the offense.”
United States v. Serna, 309 F.3d 859 (5th Cir. 2002).
· cites it 3× “Tex. Penal Code § 46.05 (footnote omitted).”
Tyra v. State, 897 S.W.2d 796 (Tex. Crim. App. 1995).
· cites it 2× “In ordering the finding deleted from the judgment, we explained: This Court has interpreted "use" of a deadly weapon ... to include simple possession if such possession facilitates the associated felony.”
Bowen v. State, 162 S.W.3d 226 (Tex. Crim. App. 2005).
· cites it 2× “2d at 950 (citing Texas Penal Code § 46.05). [7] Johnson v.”
Hollis v. Lynch, 121 F. Supp. 3d 617 (N.D. Tex. 2015).
· cites it 5× “§ 5861 only prohibit the transfer, possession, receiving, or making of a machine gun, and require no culpable mental state, while Tex. Penal Code § 46.05(a) prohibits the intentional or knowing possession, manufacture, transport, repair, or sale of a machine gun.”
State v. Mason, 980 S.W.2d 635 (Tex. Crim. App. 1998).
· cites it 2× “" TEX. PEN.CODE ANN. § 46.05 (repealed). The Legislature changed several provisions of the statute when it adopted § 46.”
United States v. James Eli Huff, II, 370 F.3d 454 (5th Cir. 2004).
· cites it 2× “7 We assume, arguendo only, that Huffs 1982 and 1987 Texas felony convictions were not for crimes “involving an act of violence or threatened violence to a person or property” within the meaning of former Texas Penal Code § 46.05 (see note 6 supra) and that accordingly Huffs…”
Cobb v. State, 85 S.W.3d 258 (Tex. Crim. App. 2002).
“See Tex. Penal Code § 46.05. 47 . Walter v. United States, 447 U.”
Robertson v. State, 137 S.W.3d 807 (Tex. App. 2004).
· cites it 4× “NOTES [1] The jury was not charged on either the playground or the deadly weapon allegation. [2] This was later discovered to be an error.”
Tapps v. State, 294 S.W.3d 175 (Tex. Crim. App. 2009).
“Tex. Penal Code § 46.05 (repealed). 15 . Mason, 980 S.”
— Tex. Penal Code § 46.05(1)(5) — 1 case
Robertson v. State, 137 S.W.3d 807 (Tex. App. 2004).
“NOTES [1] The jury was not charged on either the playground or the deadly weapon allegation. [2] This was later discovered to be an error.”
— Tex. Penal Code § 46.05(a) — 12 cases
United States v. James Eli Huff, II, 370 F.3d 454 (5th Cir. 2004).
“7 We assume, arguendo only, that Huffs 1982 and 1987 Texas felony convictions were not for crimes “involving an act of violence or threatened violence to a person or property” within the meaning of former Texas Penal Code § 46.05 (see note 6 supra) and that accordingly Huffs…”
Hollis v. Lynch, 121 F. Supp. 3d 617 (N.D. Tex. 2015).
“§ 5861 only prohibit the transfer, possession, receiving, or making of a machine gun, and require no culpable mental state, while Tex. Penal Code § 46.05(a) prohibits the intentional or knowing possession, manufacture, transport, repair, or sale of a machine gun.”
— Tex. Penal Code § 46.05(a)(1) — 2 cases
— Tex. Penal Code § 46.05(a)(1)(A) — 1 case
— Tex. Penal Code § 46.05(a)(1)(B) — 1 case
— Tex. Penal Code § 46.05(a)(1)(C) — 1 case
— Tex. Penal Code § 46.05(a)(2) — 2 cases
Hollis v. Lynch, 121 F. Supp. 3d 617 (N.D. Tex. 2015).
“§ 5861 only prohibit the transfer, possession, receiving, or making of a machine gun, and require no culpable mental state, while Tex. Penal Code § 46.05(a) prohibits the intentional or knowing possession, manufacture, transport, repair, or sale of a machine gun.”
— Tex. Penal Code § 46.05(a)(3) — 6 cases
United States v. Diaz-Diaz, 327 F.3d 410 (5th Cir. 2003).
“Diaz, a citizen of Honduras, was convicted in Texas state court in 1997 for possession of a prohibited weapon — a short-barrel firearm — in violation of Tex. Penal Code § 46.05. Diaz was deported in 1998.”
— Tex. Penal Code § 46.05(a)(5) — 4 cases
Robertson v. State, 137 S.W.3d 807 (Tex. App. 2004).
“NOTES [1] The jury was not charged on either the playground or the deadly weapon allegation. [2] This was later discovered to be an error.”
— Tex. Penal Code § 46.05(a)(6) — 2 cases
— Tex. Penal Code § 46.05(a)(9) — 2 cases
— Tex. Penal Code § 46.05(a)(l)(A) — 1 case
— Tex. Penal Code § 46.05(b) — 3 cases
United States v. Diaz-Diaz, 327 F.3d 410 (5th Cir. 2003).
“Diaz, a citizen of Honduras, was convicted in Texas state court in 1997 for possession of a prohibited weapon — a short-barrel firearm — in violation of Tex. Penal Code § 46.05. Diaz was deported in 1998.”
— Tex. Penal Code § 46.05(c) — 2 cases
Hollis v. Lynch, 121 F. Supp. 3d 617 (N.D. Tex. 2015).
“§ 5861 only prohibit the transfer, possession, receiving, or making of a machine gun, and require no culpable mental state, while Tex. Penal Code § 46.05(a) prohibits the intentional or knowing possession, manufacture, transport, repair, or sale of a machine gun.”
United States v. Diaz-Diaz, 327 F.3d 410 (5th Cir. 2003).
“Diaz, a citizen of Honduras, was convicted in Texas state court in 1997 for possession of a prohibited weapon — a short-barrel firearm — in violation of Tex. Penal Code § 46.05. Diaz was deported in 1998.”
— Tex. Penal Code § 46.05(e) — 2 cases
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