Hello all,

I am not an attorney but I am a CHL holder and federally licensed collector. Since I own a pre-1899 Smith & Wesson safety hammerless in .38 S&W I've been doing some research on whether or not this sidearm is treated any differently under Texas law.

As a layman reading it, 46.01(3)(a) seems to exempt pre-1899 weapons from the scope of section 46 and, presumably, any other provision of law that uses its definition. Is this the proper reading? Is anyone aware of any precedent concerning bona fide pre-1899 handguns?

Thanks, SA-TX

Welcome to the forum. Sorry we can't advise you on that.

The discussions in these user forums are for the benefit of prosecutors and their staff members, although we welcome relevant and appropriate input from other members of the criminal justice and government lawyer community. These forums are NOT a source of legal advice for citizens. Call the State Bar of Texas (1-800-204-2222) for information on seeking legal advice.

Thanks for the reply Dan. I understand that this isn't a forum for legal advice and I apologize if the question wasn't appropriate. It was other posts on this forum which led me to believe that such a discussion topic would be okay. Specifically:

https://tdcaa.infopop.net/eve/forums?a=tpc&s=347098965&f=157098965&m=8411083601&r=8751083601#8751083601

Here 46.01 is discussed regarding butterfly knives and whether or not they could be a "curio". That brought about a nice discussion and several replies.

Similarly, this post https://tdcaa.infopop.net/eve/forums?a=tpc&s=347098965&f=157098965&m=352109572 shows some citations relevant to the language. Backing up the poster's research is this recent opinion from a case in the 2nd Court of Appeals stating that a) the definition is a defense not an exception that has to be disproved by the state and b) that failure to prove the manufacture date isn't insufficient evidence for a conviction (http://www.2ndcoa.courts.state.tx.us/opinions/HTMLOpinion.asp?OpinionID=17423).

One final note about "curio" versus "antique". Is there a definition of "antique firearm" or "curio firearm" anywhere in the state statute books? If so, I can't find it. 46.01(3)(a) uses these two terms which have very different meanings under federal criminal law. As relevant here, ANY unmodified firearm made in or before 1898 is an "antique firearm" (http://caselaw.lp.findlaw.com/casecode/uscodes/18/parts/i/chapters/44/sections/section_921.html). The import of this is that the usual regulations applicable to the transfer and sale of firearms are NOT applicable to "antique firearms" (such as interstate shipment through FFLs only, Form 4473, Brady/NICs check, etc.)

"Curios" and "Relics" are items that are, generally, 50 years old and older although some newer weapons have been so designated. Those with a C&R license can send and receive them in interstate commerce but they are still firearms and all normal restrictions apply.

In PC 46.01(3)(a) did the Legislature mean that "firearm" doesn't include:

antique or CURIO FIREARM MANUFACTURED BEFORE 1899;

versus

ANTIQUE OR CURIO FIREARM manufactured before 1899;

By federal law an antique must be made before 1899. A curio does not. A curio that is made before 1899 is also an antique, so I don't see any practical difference. Lawyers!

In any event, all comments will be appreciated.

Thanks, SA-TX

[This message was edited by SA-TX on 06-07-08 at .]

Your posting reminds me of an observation by a very wise defense attorney: "do you know what they call a defendant who relied on a technicality for their defense? A Convict"

[This message was edited by John Greenwood on 06-07-08 at .]

quote:

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Originally posted by John Greenwood:
Your posting reminds me of an observation by a very wise defense attorney: "do you know what they call a defendant who relied on a technicality for their defense? A Convict"

[This message was edited by John Greenwood on 06-07-08 at .]

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Hi John,

I agree. That's why I'm here talking to the pros.

Forget the antique vs. curio stuff. The only important thing is this: what did the Legislature mean when it crafted this definition? How does the presence of that language change the status que ante? What were they trying to accomplish?

Thanks, SA-TX

"... These forums are NOT a source of legal advice for citizens. Call the State Bar of Texas (1-800-204-2222) for information on seeking legal advice."

Sometimes very bad things happen to people who carry toy guns. You can beat the rap but you can't beat the ride.