Texas has a single primary firearm-while-intoxicated criminal statute: Tex. Penal Code § 46.02(a-6). It makes it a crime for any person to carry a...
Reviewed by Will Luker, Founder of CCW Hub. USCCA Training Counselor, USCCA Certified Instructor, NRA Certified Instructor, Law Enforcement.
Texas has a single primary firearm-while-intoxicated criminal statute: Tex. Penal Code § 46.02(a-6). It makes it a crime for any person to carry a handgun while intoxicated in public, using the same intoxication standard the Legislature has long used in its DWI scheme (alcohol concentration of 0.08 or more, or loss of normal use of mental or physical faculties from alcohol, drugs, or a combination). The offense applies to permitless carriers and to License to Carry (LTC) holders alike. The pre-HB 1927 LTC-specific intoxication offense formerly housed in § 46.035 (which separately criminalized an LTC holder's intoxicated carry as a Class A misdemeanor) was repealed in the 2021 constitutional-carry rewrite. The general § 46.02(a-6) offense replaced it.
Federal law adds 18 U.S.C. § 922(g)(3), which bars firearm possession by any person who is an unlawful user of, or addicted to, a controlled substance. ATF treats marijuana use, including under any state medical-marijuana program, as a § 922(g)(3) trigger because marijuana remains a Schedule I controlled substance under the federal Controlled Substances Act regardless of Texas law.
Texas does not have a separate per-se BAC tier for permit holders, and Texas does not have a "0.02 carry-only" rule. The same statutory standard governs the constitutional carrier with no permit and the LTC holder with a clean record.
Practical takeaway: if you are carrying a handgun in public in Texas, do not drink. The state's intoxication standard is the DWI standard, the offense grade is a Class A misdemeanor, the Castle Doctrine presumption can be lost on a "criminal activity" disqualifier when an intoxicated carrier uses force, and a DWI-related conviction record can disqualify you from LTC eligibility under the chemical-dependency presumption. Federal law layers a separate, independent prohibitor for any unlawful drug user, including any state medical-marijuana cardholder.
Before September 1, 2021, Texas's intoxicated-carry rules were split. The general unlawful-carrying-of-weapons statute (§ 46.02) reached unlicensed carriers; the License to Carry statute (§ 46.035) reached licensed carriers. § 46.035 contained its own intoxication subsection that made it a Class A misdemeanor for an LTC holder to carry a handgun while intoxicated in public. The two statutes ran in parallel and produced essentially the same offense for two different populations.
When the Texas Legislature passed HB 1927 (87th Legislature, 2021) to authorize permitless carry, it consolidated the framework. HB 1927:
The repeal block at § 46.035(a-1), (a-2), (a-3), (e), (f), (g), (h), (h-1), (i), (j), (k), (l), and (m) is footnoted in the current code as "Repealed by Acts 2021, 87th Leg., ch. 809 (H.B. 1927), § 26(10)." The intoxicated-carry-by-LTC-holder rule that had been in § 46.035 was inside that repeal block. Section 46.035 still exists, and § 46.035(a) still makes it an offense for an LTC holder to intentionally display a handgun in plain view in public except in a holster, but the LTC-only intoxication offense is gone. A separate 2023 cleanup, HB 4595 (88th Legislature), repealed the remaining § 46.035(b), (c), and (d) provisions (which had governed alcohol-establishment, sporting-event, and similar location offenses for license holders).
For instructors, the consolidation matters for one practical reason: the substantive standard is the same for everyone. There is no longer any LTC carve-out, lower threshold, or stricter rule. The LTC holder and the constitutional carrier both stand or fall under § 46.02(a-6).
The text of § 46.02(a-6) is short. A person commits an offense if the person:
Two structural points are worth pausing on.
First, the "intoxicated" element is the DWI standard. Texas uses a single statutory definition of "intoxicated" across its DWI offenses (Penal Code chapter 49) and that same definition controls § 46.02(a-6). Under § 49.01(2), a person is intoxicated if the person:
This is a disjunctive definition. The State can prove intoxication by hitting the 0.08 BAC per-se prong, or by proving loss of normal use of mental or physical faculties on the totality of evidence (officer observations, field sobriety tests, witness testimony, chemical results). A driver who blows a 0.06 but plainly cannot stand on one leg or count to ten can still be convicted on the loss-of-faculties prong. A driver who blows 0.08 has handed the State the per-se prong even with no observable signs of intoxication.
The same disjunction governs § 46.02(a-6). A carrier with a 0.08 BAC has committed the offense regardless of how steady on his feet he appears. A carrier under 0.08 can still be convicted if loss of normal use is proven.
Second, the safe-harbor list is narrow. § 46.02(a-6)(2) excludes three locations from the offense:
This is the legislative recognition that a homeowner who has a few drinks at home with a handgun on the nightstand has not committed a crime under § 46.02(a-6); a guest at a private dinner party who is licensed-to-carry and has a glass of wine has not committed a crime if the host consents to the firearm; and a carrier sitting in his own truck in the driveway is not committing the offense. Everywhere else, the offense applies. A bar, a restaurant, a parking lot, a public sidewalk, a friend's apartment without consent for the firearm, a campsite on public land, a hunting lease where the leaseholder has not consented to the carrier's possession while drinking - all are inside the prohibition.
The instructor takeaway: read § 46.02(a-6)(2) as a tight set of three exceptions, not as a generalized "safe places" doctrine. The exceptions protect home conduct, consented-to private property, and the carrier's own vehicle. They do not protect public conduct.
§ 46.02(b) sets the offense grade for § 46.02 violations as a Class A misdemeanor unless an enumerated felony exception applies (§ 46.02(d) for the location-restricted-knife minor offense, and § 46.02(e) for the prohibited-person carry felony under § 46.02(a-7)). The (a-6) intoxication offense falls under the default Class A grade.
Under Tex. Penal Code § 12.21, a Class A misdemeanor exposes a defendant to:
A misdemeanor conviction also carries collateral consequences: a permanent criminal record visible on background checks for employment, professional licensing, and future firearm purchases, and potential effects on LTC eligibility (discussed below).
Pre-2021 § 46.035(d) made it a Class A misdemeanor for an LTC holder to carry a handgun on or about the holder's person while the holder was intoxicated. That subsection no longer exists in current Texas law. The 2021 HB 1927 repeal block removed the LTC-specific intoxication offense, and the 2023 HB 4595 cleanup removed the remaining (b), (c), and (d) location offenses for license holders. § 46.035 today contains:
The result: an LTC holder carrying intoxicated in public commits an offense under § 46.02(a-6), the same statute that applies to a permitless carrier. There is no separate LTC-only statutory penalty for intoxicated carry, no LTC-specific lower BAC threshold, and no LTC-specific higher BAC threshold. The LTC holder and the constitutional carrier face the same Class A misdemeanor exposure on the same intoxication standard.
What the LTC holder does face that the permitless carrier does not is a license consequence. A § 46.02(a-6) conviction is a Class A misdemeanor. Under Tex. Gov't Code § 411.172(a)(8), a person convicted of any Class A misdemeanor in the preceding five years is not qualified to hold or renew an LTC. Under Tex. Gov't Code § 411.180, the Department of Public Safety may revoke an LTC when the holder no longer meets eligibility, and a Class A conviction during the license term feeds that revocation analysis.
The instructor takeaway: an intoxicated-carry conviction will end an LTC, on top of the criminal exposure. The license is not lifetime; it is renewed periodically and is subject to revocation when the holder picks up a disqualifying conviction.
Independent of Texas's own framework, federal law makes it unlawful for any person who is "an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act)" to ship, transport, possess, or receive any firearm or ammunition in or affecting interstate commerce. Violation is a federal felony with up to 10 years in prison and up to $250,000 in fines.
ATF defines "unlawful user of or addicted to any controlled substance" at 27 CFR § 478.11. The regulation reaches a person who uses a controlled substance and has lost the power of self-control with reference to the use, or any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician. The regulation flags marijuana as the leading trigger because marijuana remains a Schedule I controlled substance under the federal Controlled Substances Act regardless of state legalization or medical authorization.
Texas does not have a comprehensive medical-marijuana program comparable to many neighboring states; the Texas Compassionate Use Program permits low-THC cannabis for narrow medical conditions and is administered separately. The relevant federal point for instructors is broader. A person who is a current user of marijuana - recreationally, under any state's medical-marijuana program, or under the Texas Compassionate Use Program - is treated by ATF as an unlawful user of a controlled substance under federal law.
ATF Form 4473 (the federal firearms transaction record) asks every purchaser, under penalty of perjury, to certify that they are not an unlawful user of any controlled substance. The form expressly notes that marijuana use disqualifies the purchaser regardless of state law. A Texas resident who answers "no" on the Form 4473 while a current marijuana user commits a federal felony under 18 U.S.C. § 922(a)(6) (false statement on the firearm transaction record) and § 922(g)(3) (possession by prohibited person). The exposure attaches even when the purchaser is sober at the time of purchase and at home; the federal scheme operates independently of Texas's.
Federal § 922(g)(3) reaches use of any Schedule I, II, III, IV, or V controlled substance taken outside the scope of a valid prescription. ATF treats current and ongoing use as the trigger, not a single past episode. The safest framing for instructors is that any current illegal drug use, including marijuana use of any kind under federal law, is incompatible with firearm possession.
§ 922(g)(3) is independent of Texas's § 46.02(a-6). A Texas resident who is a current marijuana user and who possesses a handgun at home commits no Texas under-the-influence offense (§ 46.02(a-6) requires public carry while intoxicated, and the home is excepted). But that same person commits a federal felony under § 922(g)(3) the moment the firearm and the ongoing marijuana use coexist. The federal exposure attaches at home.
Texas's LTC framework includes statutory hooks for alcohol- and drug-related conduct beyond the § 46.02(a-6) offense itself.
Under Tex. Gov't Code § 411.172(a)(7), an LTC applicant must not be "a chemically dependent person." Subsection (c) creates a presumption:
An individual who has been convicted two times within the 10-year period preceding the date on which the person applies for a license of an offense of the grade of Class B misdemeanor or greater that involves the use of alcohol or a controlled substance as a statutory element of the offense is a chemically dependent person for purposes of this section and is not qualified to receive a license under this subchapter.
The presumption is triggered by two qualifying convictions in 10 years. Texas DWI under Penal Code § 49.04 is a Class B misdemeanor on a first offense (with alcohol as a statutory element) and a Class A misdemeanor on a second offense. Two DWI convictions in the 10-year window therefore satisfy the § 411.172(c) trigger and disqualify the applicant from holding an LTC by statutory presumption. Subsection (c) also preserves the State's ability to prove chemical dependency by other evidence even when the two-conviction trigger is not met.
For instructors, two practical translations:
§ 411.172(a)(7) requires that an applicant not be "incapable of exercising sound judgment with respect to the proper use and storage of a handgun." Subsection (d) defines that incapacity by reference to specific psychiatric diagnoses, hospitalization, and listed conditions. Subsection (e) lists the kinds of evidence that establish a § 411.172(d)(1) psychiatric disorder, including:
A residential rehab admission within five years of the LTC application can be raised as evidence of disqualification under § 411.172(d)(1) without any criminal conviction at all. The same is true of a documented physician diagnosis of dependence. These are non-conviction pathways to LTC denial or revocation. Subsection (f) provides a remission off-ramp on a licensed psychiatrist's certificate.
§ 411.172(a)(8) disqualifies an applicant from holding an LTC if convicted within the preceding five years of a Class A or Class B misdemeanor or of disorderly conduct under § 42.01. A § 46.02(a-6) intoxicated-carry conviction is a Class A misdemeanor and therefore disqualifies the holder for five years from the conviction date. § 411.172(a)(9) requires the applicant to be fully qualified to purchase a handgun under federal and state law; a federal § 922(g)(3) prohibition (current drug user) ends federal purchase qualification and therefore ends LTC eligibility independent of state criminal exposure.
Texas's use-of-force chapter - Tex. Penal Code § 9.31 (self-defense) and § 9.32 (deadly force) - does not categorically bar an intoxicated person from claiming self-defense. A person genuinely facing imminent unlawful force may use defensive force even if intoxicated. But intoxication interacts with two specific elements that often determine whether a defendant prevails on a justification claim.
The Castle Doctrine "no retreat" presumption can be lost. Under § 9.32(b), a defendant's belief that deadly force was immediately necessary is presumed reasonable when three conditions converge: (1) the defendant knew or had reason to believe the attacker was unlawfully and forcibly entering or removing the defendant from the defendant's habitation, vehicle, or place of business or employment, or was committing one of the listed enumerated felonies; (2) the defendant did not provoke the attacker; and (3) the defendant was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.
That third element - "not otherwise engaged in criminal activity" - is the trap for the intoxicated carrier. If the defendant was engaged in a § 46.02(a-6) intoxicated-carry offense at the moment of the defensive use, the defendant was "engaged in criminal activity" in a non-traffic context, and the § 9.32(b) presumption of reasonableness is lost. The defendant can still claim self-defense, but he has to prove the reasonableness of his belief by ordinary means without the statutory presumption.
The "no duty to retreat" rule under § 9.32(c) has the same disqualifier. § 9.32(c) provides that a defendant who has a right to be present, who has not provoked the other person, and who is not engaged in criminal activity at the time the deadly force is used, has no duty to retreat before using deadly force. The intoxicated carrier in public has lost the no-duty-to-retreat protection if § 46.02(a-6) attaches to the moment of use.
The practical consequence: an intoxicated LTC holder or constitutional carrier who uses deadly force in a public confrontation walks into court without two of Texas's strongest justification doctrines. The Castle Doctrine presumption is gone. The no-duty-to-retreat rule is gone. The defendant is left to argue ordinary § 9.32(a) justification on the totality of facts, while the State can charge him with the underlying § 46.02(a-6) offense as a separate count.
The home and vehicle exceptions to § 46.02(a-6) matter here too. A homeowner who is intoxicated and uses defensive force inside his own home was not engaged in criminal activity for § 9.32 purposes (the home is excepted from § 46.02(a-6)), so the Castle Doctrine presumption and no-duty-to-retreat rule remain available. A driver in his own vehicle is in the same position. An intoxicated carrier in a parking lot, a sidewalk, or a public bar is not.
A few operational points are worth flagging because students sometimes assume more state coverage than the statute provides.
A few rules to teach explicitly.
1. Do not carry intoxicated in public, period. Texas's intoxication standard is the DWI standard. A 0.08 BAC and a public-place carry is a Class A misdemeanor. The operational rule to teach is "no drinking with a loaded handgun in public," not "stay under 0.08." The cost of being wrong is up to a year in jail, a $4,000 fine, and an LTC bar for five years.
2. The home and vehicle exceptions are real, but narrow. § 46.02(a-6)(2) protects the carrier on his own property, on private property with the owner's consent, and inside his own vehicle. It does not protect the bar, the parking lot, the public sidewalk, the shopping center, or a friend's apartment without consent. Teach the exceptions as exceptions, not as a generalized "safe carry" doctrine.
3. The LTC holder and the constitutional carrier face the same offense. HB 1927 consolidated the two intoxication statutes into one. There is no separate § 46.035 intoxication offense for license holders today. The LTC holder picks up the same Class A misdemeanor exposure under § 46.02(a-6) as the permitless carrier, plus a § 411.172(a)(8) five-year LTC bar on conviction.
4. Two DWIs in 10 years end LTC eligibility. § 411.172(c) creates a chemical-dependency presumption from two convictions in 10 years of Class B-or-greater offenses with alcohol or controlled-substance use as a statutory element. DWI fits. A student with one DWI on the record should be told plainly that a second one ends LTC eligibility under the presumption.
5. Marijuana use is incompatible with firearm possession in Texas, full stop. Federal § 922(g)(3) reaches any current user of a Schedule I controlled substance. Marijuana is Schedule I. This includes recreational use, out-of-state medical-marijuana use, and use under any state program. The exposure attaches at home, at the dealer counter on Form 4473, and during any later carry event, independent of Texas's § 46.02(a-6) offense.
6. The Castle Doctrine presumption can be lost on intoxication. § 9.32(b)(3) and § 9.32(c) both condition Castle Doctrine and no-duty-to-retreat protection on the defendant not being "engaged in criminal activity" at the time of the defensive force. An active § 46.02(a-6) violation strips both protections in public. The intoxicated carrier in a parking-lot or bar confrontation walks into court without Texas's strongest justification doctrines.
7. Plan the night. If a student plans to drink in public, the firearm should be locked at home or lawfully secured before drinking begins. There is no Texas "safe transport while drinking" exception in any firearm statute, and the home and vehicle exceptions of § 46.02(a-6)(2) do not extend to walking out of a bar to a parked car.
| Provision | Subject |
|---|---|
| Tex. Penal Code § 46.02(a) | Unlawful Carrying of Weapons. Default carry-while-prohibited offense for under-21 carriers and recent enumerated-offense convictions |
| Tex. Penal Code § 46.02(a-1) | Vehicle carry rules. Plain-view holster requirement, criminal-activity disqualifier |
| Tex. Penal Code § 46.02(a-5) | Plain-view-display offense in public, holster exception |
| Tex. Penal Code § 46.02(a-6) | Carrying a handgun while intoxicated. Single primary intoxicated-carry statute. Class A misdemeanor |
| Tex. Penal Code § 46.02(a-7) | Carry by federally or state-prohibited person. Felony |
| Tex. Penal Code § 46.02(b) | Default Class A misdemeanor grade for § 46.02 violations |
| Tex. Penal Code § 46.035(a) | LTC plain-view-display offense in public, holster exception |
| Tex. Penal Code § 46.035(d) | Repealed by Acts 2023, 88th Leg., ch. 768 (H.B. 4595) |
| Tex. Penal Code § 46.035(i) | Repealed by Acts 2021, 87th Leg., ch. 809 (H.B. 1927). Pre-repeal: LTC-specific intoxicated-carry offense |
| Tex. Penal Code § 46.13 | Making a Firearm Accessible to a Child. Storage statute, not an under-the-influence statute |
| Tex. Penal Code § 9.31 | Self-defense. Available to intoxicated defendants on ordinary terms |
| Tex. Penal Code § 9.32(b)(3) | Castle Doctrine reasonableness presumption requires defendant not be "otherwise engaged in criminal activity" |
| Tex. Penal Code § 9.32(c) | No-duty-to-retreat rule requires defendant not be "engaged in criminal activity" |
| Tex. Penal Code § 12.21 | Class A misdemeanor punishment. Up to $4,000 fine, up to one year in jail |
| Tex. Penal Code § 22.05 | Deadly Conduct. Available against drunk-and-armed brandish-or-point conduct |
| Tex. Gov't Code § 411.172(a)(7) | LTC eligibility. Not a chemically dependent person; not incapable of exercising sound judgment |
| Tex. Gov't Code § 411.172(a)(8) | LTC eligibility. No Class A or B misdemeanor conviction in preceding five years |
| Tex. Gov't Code § 411.172(c) | Chemical-dependency presumption from two Class B+ alcohol/controlled-substance convictions in 10 years |
| Tex. Gov't Code § 411.172(d) | Sound-judgment incapacity defined by listed psychiatric diagnoses and treatment |
| Tex. Gov't Code § 411.172(e) | Evidence of psychiatric disorder includes inpatient substance-abuse treatment in five years and physician diagnosis of dependence |
| Tex. Gov't Code § 411.180 | DPS revocation procedure when holder no longer eligible |
| Tex. Gov't Code § 411.186 | Suspension procedure on chargeable conduct |
| 18 U.S.C. § 922(g)(3) | Federal prohibitor for unlawful drug user or addict. Up to 10 years federal prison |
| 18 U.S.C. § 922(a)(6) | Federal false statement on firearm transaction record (Form 4473) |
| 27 CFR § 478.11 | ATF definition of "unlawful user of or addicted to any controlled substance" |
| Acts 2021, 87th Leg., ch. 809 (H.B. 1927) | Constitutional-carry rewrite. Added § 46.02(a-6); repealed § 46.035(a-1)-(a-3), (e)-(m) including the LTC-specific intoxication offense |
| Acts 2023, 88th Leg., ch. 768 (H.B. 4595) | Cleanup repeal of remaining § 46.035(b), (c), (d) location offenses |
This page covers one part of our Texas concealed carry guide.
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