Is it a Felony to Carry a Gun While Drinking?

You’re at a backyard barbecue, legally carrying your firearm, and someone hands you a beer. You take a sip. Are you now committing a felony? Probably not. Emphasis on “probably.”

In Texas, carrying a gun while drinking isn’t automatically a felony, but it can quickly become one depending on: 

• Where you are
• How much you’ve had to drink
• Whether you’re legally allowed to carry in the first place

The line between a misdemeanor and a felony charge is razor-thin, and crossing it could mean losing your gun rights, facing serious jail time, and a criminal record that could follow you for life.

If you’re asking yourself, “Is it a felony to carry a gun while drinking?” you’re asking the right question — and you need answers from someone who knows Texas drinking laws inside and out. Mark Thiessen and Thiessen Law Firm have secured 140+ Not Guilty verdicts for clients facing serious weapons and criminal charges, and we’re standing by to defend your rights.

Don’t let a misunderstanding of Texas gun and drinking laws cost you your freedom. Call Thiessen Law Firm today at (713) 864-9000 or contact us online to protect your future.

Can you drink and carry a gun in Texas?

Let’s start with the basics: Texas doesn’t have a blanket law that says “you can’t have a single drop of alcohol in your system while carrying a gun.” In fact, you can legally have a beer or two while carrying — as long as you’re not intoxicated.

The key word here is “intoxicated,” and Texas law has a specific definition for it. According to Texas Penal Code § 49.01 you’re considered intoxicated when you:

• Don’t have the normal use of your mental faculties due to alcohol, drugs, or other substances, OR
• Don’t have the normal use of your physical faculties due to alcohol, drugs, or other substances, OR
• Have a blood alcohol concentration (BAC) of 0.08 or more

So technically, you could have a drink while carrying your firearm and stay on the right side of the law — as long as you’re not meeting that definition of intoxication.

Now the more important question is, can you be above the legal drinking limit and carry a gun? No, you cannot. If your BAC is 0.08 or higher, you are legally intoxicated under Texas law, which means carrying a firearm at that point is illegal. You don’t even need to appear drunk — the BAC alone is enough to meet the legal definition of intoxication.

Is it a felony to carry a gun while drunk?

Now for the big question: is carrying a gun while drunk a felony or a misdemeanor in Texas? The answer depends on the specifics of your situation — specifically, where you were when you got caught.

Possession of a firearm while intoxicated in Texas is generally charged as a Class A misdemeanor under Texas Penal Code § 46. This means you’re facing:

• Up to one year in county jail
• A fine of up to $4,000
• Loss of your gun rights
• A permanent criminal record

A Class A misdemeanor is no joke, but it’s not a felony — at least not automatically.

When does it become a felony?

Carrying a gun while intoxicated can be elevated to a felony charge in certain circumstances, including:

If you’re in a prohibited location.

Texas law prohibits firearms in specific places like schools, polling places, courthouses, and certain government buildings. If you’re carrying while intoxicated in one of these locations, you could be charged with a third-degree felony, which carries 2 – 10 years in prison.

If you have prior convictions.

Repeat offenses or prior weapons-related convictions can elevate your charges significantly.

If you’re already prohibited from possessing a firearm. 

If you’re a convicted felon, have a domestic violence conviction, or are otherwise legally prohibited from owning a gun, carrying while intoxicated will result in felony charges — possibly even federal charges.

If other crimes are involved.

Let’s say police pull you over and find you intoxicated with a firearm in your vehicle. If they also discover drugs, evidence of intent to commit another crime, or you resist arrest, prosecutors can stack charges that quickly escalate to felony territory.

The reality is that officers don’t need much to determine inebriation while you’re carrying. Maybe you smell like alcohol when they approach your vehicle. Maybe your eyes are bloodshot when an officer walks up to your car window during a traffic stop. Maybe you stumbled getting out of your truck at a gas station. These subjective observations can be enough for an arrest — and once you’re in the back of a police car heading to jail, prosecutors will decide how aggressively to charge you based on the circumstances.

The bottom line? Even if your case starts as a misdemeanor, it can spiral into felony charges depending on where you were, what else was happening, and your criminal history.

Can you have a gun at a bar in Texas?

Here’s where we’re at so far. 

• Can you drink and carry a gun in Texas? Yes, as long as you’re not intoxicated.
• Is it a felony to carry a gun while drunk? Usually it’s a Class A misdemeanor, but it can become a felony depending on where you are and your criminal history.

Now let’s add another layer of complexity: location matters even more than you think.

So, can you have a gun at a bar in Texas? The short answer is: it depends on what kind of establishment you’re in — and whether you’ve been drinking.

Texas law makes a critical distinction between bars and restaurants based on how much of their revenue comes from alcohol sales. You’ll see this reflected in the signs posted at the entrance:

• 51% establishments (bars): These are businesses that derive 51% or more of their revenue from on-premises alcohol sales. You’ll see a red sign with “51%” prominently displayed. It is illegal to carry a firearm — concealed or open carry — in these locations, period. Even if you have a valid license to carry (LTC), even if you haven’t had a drop to drink, you cannot legally have a gun in a 51% establishment.
• 49% establishments (restaurants): These businesses derive less than 51% of their revenue from alcohol sales. You’ll typically see a different sign (or no sign at all). You can legally carry a firearm in these locations if you have a valid LTC — but only if you’re not intoxicated.

What’s the verdict then? Is it illegal to conceal carry in a bar? Absolutely. As we explained above, if an establishment gets 51% or more of its revenue from alcohol sales (a bar), it is illegal to carry any firearm there — concealed or otherwise — regardless of your license status or sobriety level. Violating this law is a third-degree felony, punishable by 2–10 years in prison and up to a $10,000 fine.

And here’s where things get even messier: if you’re carrying while intoxicated in a 49% establishment (a restaurant), you’re committing a Class A misdemeanor. But if prosecutors can argue you were in a 51% establishment, or if you’re legally prohibited from possessing a firearm due to prior convictions, you’re suddenly facing felony charges.

What happens after a felony indictment?

Let’s say the worst happens: you’re arrested for carrying a gun while intoxicated, and prosecutors decide to pursue felony charges. What happens after a felony indictment?

Once you’re indicted, you’re officially facing felony prosecution, which means:

1. Arraignment. You’ll appear before a judge who will formally read the charges against you and ask how you plead. This is also when bail conditions may be set or modified.
2. Pre-trial motions and discovery. Your attorney will file motions to challenge evidence, suppress unlawful searches, or dismiss charges based on legal deficiencies. This is where having a felony DWI lawyer or a skilled weapons charge attorney becomes critical — they know how to find weaknesses in the state’s case and fight for your rights.
3. Plea negotiations. In many cases, prosecutors may offer a plea deal to avoid trial. Depending on the strength of the evidence and the circumstances of your case, your attorney may negotiate for reduced charges, deferred adjudication, or even dismissal.
4. Trial. If no plea deal is reached, your case goes to trial. A jury will decide whether you’re guilty beyond a reasonable doubt. This is high-stakes — a felony conviction means prison time, loss of gun rights, and a permanent criminal record.
5. Sentencing. If convicted, the judge will determine your sentence based on the specifics of your case, your criminal history, and Texas sentencing guidelines.

The reality is that once you’re indicted for a felony, the consequences become life-altering. You’re not just fighting to stay out of prison — you’re fighting to protect your Second Amendment rights, your ability to vote, your career prospects, and your freedom.

This isn’t the time to hope for the best or try to navigate the system on your own. You need an attorney who has a proven track record of winning felony cases and who understands the intricacies of Texas gun laws.

Learn more about the gun laws for felons in Texas 

Charged with carrying while intoxicated? You need a lawyer who knows how to win.

So, is it a felony to carry a gun while drinking? Here’s what you need to remember:

• You can legally drink and carry a gun in Texas as long as you’re not intoxicated (BAC under 0.08 and normal use of mental/physical faculties)
• Carrying while intoxicated is usually a Class A misdemeanor, but it becomes a felony if you’re in a prohibited location, already a felon, or other aggravating factors are present
• You cannot carry a gun in a 51% establishment (bar) under any circumstances — doing so is a third-degree felony
• Once you’re indicted for a felony, you’re facing prison time, loss of gun rights, and a permanent criminal record that follows you forever

If you or a loved one is facing charges for carrying a weapon while intoxicated, you need an attorney who has a deep knowledge of both Texas gun laws and DWI defense. 

At Thiessen Law Firm, we defend clients accused of alcohol-related offenses — including weapons charges tied to drinking. Mark Thiessen is a board-certified lawyer-scientist with a proven track record of dismantling weak evidence, challenging subjective officer observations, and securing Not Guilty verdicts for clients facing serious charges.

Don’t let one mistake cost you your freedom and your future. Call Thiessen Law Firm today at (713) 864-9000 or contact us online to start building your defense.

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• First DWI in Texas: What You Need to Know
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