Texas is famous as a state that enshrines and properly venerates the right to keep and bear arms, and though this is undoubtedly true, it is not quite the free-for-all that some people think, though Texans and the state of Texas at large do nothing to dissuade people of this opinion.
In the case of defensive sprays like pepper spray, civilians can happily have access to any variety of chemical agents they desire, but the curious wording of the state statute that defines “chemical dispensing devices” gives the distinct impression that only small ones sold commercially for personal self-defense are legal items that one may carry with no restriction.
This is because the statute does not define what a “small chemical dispenser” is, either regarding its size or the volume of its contents.
This is a bit of a blemish on what is otherwise a superb state regarding self-defense and the variety of defense of items that people can carry. We will dig into more of the details just below.
- Texas has no prohibition on the type of defensive spray utilized by civilians; OC, NC and CS are all acceptable, as are blends.
- Texas specifies all defensive sprays as “chemical dispensing devices” except “a small chemical dispenser sold commercially for personal protection”.
- Larger devices might fall outside the purview of civilian legality; there is no specification for a “small” dispenser, either size or volume.
You have an awful lot of freedom in Texas to pick whatever defensive spray you want: You can have CS tear gas, CN tear gas, legitimate pepper spray, or a blend containing any or all of those prior agents.
So long as you have a small container that is suitable for self-defense, and sold commercially for the purpose, you essentially have carte blanche.
But there’s the rub when it comes to Texas state statutes: the law makes the exception on the definition of chemical dispensing devices for small chemical dispensers as being suitable for civilian self-defense, but it gives us no additional information as to what constitutes “small”.
This could be a small canister that is suitable for carrying in a pocket. It might be interpreted as one suitable for carrying on a keychain. Maybe one that can fit on the belt in a pouch is considered a small canister. We just don’t know, and that is part of the problem.
Perhaps small is referring to the payload, or the volume of the chemical agent and not the size of the canister. Unfortunately, this is a great example of how sloppily written laws can leave much open to interpretation, but we must also not discount that that is indeed the intention of the wording, giving a police officer or a judge broad latitude to interpret it.
The only thing I can recommend you do for guidance is to look for precedent in test cases involving defensive sprays in the State of Texas.
So long as you purchase a compact can of pepper spray or tear gas, let us say one that can easily fit in a pocket, I would not anticipate you have any problems.
The Texas state statutes covering defensive sprays have much to commend them, including a complete lack of restriction on purchasing and the type of chemical agent used, be it tear gas or pepper based.
However, the fuzzy definition constituting a small chemical dispenser, which just so happens to be the type that is legal for civilian use and carry, means you would be ill-advised for carrying the larger canisters on or about your person.
Relevant State Statutes
Sec. 46.01. Definitions.
In this chapter:
(13) “Hoax bomb” means a device that:
(A) reasonably appears to be an explosive or incendiary device; or
(B) by its design causes alarm or reaction of any type by an official of a public safety agency or a volunteer agency organized to deal with emergencies.
(14) “Chemical dispensing device” means a device, other than a small chemical dispenser sold commercially for personal protection, that is designed, made, or adapted for the purpose of dispensing a substance capable of causing an adverse psychological or physiological effect on a human being.
(15) “Racetrack” has the meaning assigned that term by Section 2021.003(41), Occupations Code.
(16) “Zip gun” means a device or combination of devices that was not originally a firearm and is adapted to expel a projectile through a smooth-bore or rifled-bore barrel by using the energy generated by an explosion or burning substance.
(18) “Volunteer emergency services personnel” includes a volunteer firefighter, an emergency medical services volunteer as defined by Section 773.003, Health and Safety Code, and any individual who, as a volunteer, provides services for the benefit of the general public during emergency situations. The term does not include a peace officer or reserve law enforcement officer, as those terms are defined by Section 1701.001, Occupations Code, who is performing law enforcement duties.
(19) “Improvised explosive device” means a completed and operational bomb designed to cause serious bodily injury, death, or substantial property damage that is fabricated in an improvised manner using nonmilitary components. The term does not include:
(A) unassembled components that can be legally purchased and possessed without a license, permit, or other governmental approval; or
(B) an exploding target that is used for firearms practice, sold in kit form, and contains the components of a binary explosive.
Sec. 46.02. UNLAWFUL CARRYING WEAPONS.
(a) A person commits an offense if the person:
(2) the person is:
(A) engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic or boating;
(B) prohibited by law from possessing a firearm; or
(C) a member of a criminal street gang, as defined by Section 71.01.
(a-2) For purposes of this section, “premises” includes real property and a recreational vehicle that is being used as living quarters, regardless of whether that use is temporary or permanent. In this subsection, “recreational vehicle” means a motor vehicle primarily designed as temporary living quarters or a vehicle that contains temporary living quarters and is designed to be towed by a motor vehicle. The term includes a travel trailer, camping trailer, truck camper, motor home, and horse trailer with living quarters.
(a-3) For purposes of this section, “watercraft” means any boat, motorboat, vessel, or personal watercraft, other than a seaplane on water, used or capable of being used for transportation on water.
(a-4) A person commits an offense if the person:
(1) intentionally, knowingly, or recklessly carries on or about his or her person a location-restricted knife;
(2) is younger than 18 years of age at the time of the offense; and
(3) is not:
(A) on the person’s own premises or premises under the person’s control;
(B) inside of or directly en route to a motor vehicle or watercraft that is owned by the person or under the person’s control; or
(C) under the direct supervision of a parent or legal guardian of the person.
(b) Except as provided by Subsection (c) or (d), an offense under this section is a Class A misdemeanor.
(c) An offense under this section is a felony of the third degree if the offense is committed on any premises licensed or issued a permit by this state for the sale of alcoholic beverages.
(d) An offense under Subsection (a-4) is a Class C misdemeanor.
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;
(B) a machine gun; or
(C) a short-barrel firearm;
(2) armor-piercing ammunition;
(3) a chemical dispensing device;
(4) a zip gun;
(5) a tire deflation device;
(6) a firearm silencer, unless the firearm silencer is classified as a curio or relic by the United States Department of Justice or the actor otherwise possesses, manufactures, transports, repairs, or sells the firearm silencer in compliance with federal law; or
(7) an improvised explosive device.