Section 46.10 addresses weapons inside jails and prisons. It carries felony exposure on top of whatever sentence the person is already serving, and in practice a conviction usually means consecutive time.
What the Statute Says
(a) A person commits an offense if, while confined in a penal institution, he intentionally, knowingly, or recklessly: (1) carries on or about his person a deadly weapon; or (2) possesses or conceals a deadly weapon in the penal institution.
(b) It is an affirmative defense to prosecution under this section that at the time of the offense the actor was engaged in conduct authorized by an employee of the penal institution.
(c) A person who is subject to prosecution under both this section and another section under this chapter may be prosecuted under either section.
(d) An offense under this section is a felony of the third degree.
"Deadly Weapon" Is the Contested Element
Section 1.07 defines a deadly weapon as:
- a firearm, or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or
- anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.
In a correctional setting, the State usually proceeds on the "adapted" theory — a sharpened object, a modified tool, a shaped piece of metal or plastic. The defense questions are concrete:
- Was it actually adapted? A broken piece of property, an unmodified pen, a razor still in its issued housing, or a tool in its ordinary condition has not been adapted for anything.
- Manner of use or intended use. Where there is no use and no evidence of intent, the State is left arguing from the object's appearance alone.
- Expert and comparison evidence. Correctional officers testify as experts on what constitutes a weapon; that opinion is examinable, and photographs frequently show something far less alarming than the report describes.
Possession in a Shared Space
Possession cases inside a facility raise the same affirmative links problem as any other possession case, and often more acutely. Items found in a shared cell, a common area, a dayroom, or a communal work space are accessible to many people. The State must link the item to the accused specifically — through fingerprints, DNA, admissions, or exclusive access — and frequently cannot.
The Authorization Defense
Subsection (b) covers inmates engaged in conduct authorized by an employee of the institution. Inmates assigned to kitchens, maintenance, laundry, and work programs handle knives, tools, and equipment as part of their duties. Where the item was issued or its use authorized, the affirmative defense applies — and the assignment records establish it.
Related
- Unlawful carrying of weapons (46.02)
- Section 38.07 — permitting or facilitating escape
- Harris County Jail — 700 N. San Jacinto
Charged in Harris County?
Brian Foley is Board Certified in Criminal Law by the Texas Board of Legal Specialization and a former Harris County Felony Chief Prosecutor; Luis Baez is a former Trial Bureau Chief. Call or text (713) 703-1718 for a free, confidential consultation.