Texas child gun law rarely applied
Gun control experts seek ways to stem accidental shootings by children
After a toddler fatally shot his 8month-old brother this month in Houston, authorities and elected officials echoed the same theme: Accidental shootings by children are avoidable.
But a state law aimed at keeping guns out of the hands of children by charging owners when a child gets hold of a firearm is seldom used in Texas, Department of Public Safety records show.
Since it was enacted in 1995 through mid-March, the law has led to 288 arrests across the Lone Star State, records show. During the same period, 141 people were prosecuted and 117 convicted.
There are various reasons why the law may not be used often, from prosecutors being reluctant to charge a parent already suffering a painful loss — that of a child —
to concerns about insufficient evidence supporting criminal negligence. But gun control experts say government officials could do more to educate firearms owners about the law — considered just one tool to prevent shootings — and encourage safer gun storage.
Meanwhile, the shootings continue. While DPS does not specifically track the number of unintentional shootings by children, one gun control group, Everytown for Gun Safety, found as many as 193 unintentional shootings by children — resulting in 92 deaths and 109 injuries — in Texas from 2015 to 2020.
This year, the group has tallied six such shootings, two of which were in Houston. The count does not include the latest shooting.
“It’s maddening because they’re all so preventable,” said Ed Scruggs of Texas Gun Sense, a group that pushes to reduce gun injuries and deaths through policies grounded in evidence. “We wouldn’t need to worry about laws and enforcing them if people would just do the right thing.”
Thirty states have a version of the Child Access Prevention law, according to the Giffords Law Center to Prevent Gun Violence.
The Texas law applies to whenever a child under 17 gains access to a readily dischargeable firearm if the owner failed to secure it or left it in a place where he or she knew — or should have known — a child could access it.
“What prompted it was just a spate of cases,” said Sherri Greenberg, who was a joint author of the bill in 1995 as a state legislator and now teaches at the University of Texas at Austin. “They are just heartbreaking.”
Since its passage, the law has been used infrequently.
“It’s just not a law that’s been consistently enforced,” Scruggs said. “Too few people are aware the law even exists, for one.”
Other weaknesses, Scruggs said, are the law’s limitations: It makes the offense a misdemeanor and defines a child as someone under age 17. Other states with similar laws set the age at 18, which can apply to certain youth suicides and mass shootings in schools when a teen uses a parent’s weapons.
Some had hoped for change this legislative session.
Rep. Joe Moody, D-El Paso, filed a bill to make a violation of the law a third-degree felony “if the child discharges the firearm and causes death or serious bodily injury to another person who does not reside with the child,” according to the bill. A child would be a person younger than 18, with an exception included for situations in which a child has a firearm for sport.
Moody said the bill was the product of conversations that started about three years ago. A previous version of the bill was reworked after he heard concerns from people who believed charging a grieving parent with a felony was excessive as well as worries from young people who participate in sports with firearms. It was read in March and referred to the Homeland Security and Public Safety Committee but has not gotten a hearing.
“We absolutely could prevent a huge number of these accidental deaths,” Moody said. “If we preached this and we taught it, I think we could avoid a lot of these problems.”
Last year, Texas recorded at least 36 unintentional shootings by children that killed 16 and caused 23 injuries, according to Everytown for Gun Safety’s Not An Accident Index. That marked a slight decrease from 2019, when 45 such shootings killed 25 and injured 23 in the state.
The figures are mostly based on media reports and some follow-up investigation, said Sarah BurdSharps, the group’s director of research. “We always say ‘at least’ because there are always certainly things that are unreported,” BurdSharps said.
Across the country, the group has observed a 32 percent increase in unintentional shooting deaths by children of themselves and others during the pandemic. BurdSharps attributed the spike — at least in part — to a “pretty lethal combination” of youths spending more time at home, record gun sales and adults splitting time between work and watching after their kids.
Burd-Sharps said research about child access prevention laws has proved they reduce unintentional and intentional shootings by children — and that more can be done. Firearm dealers can post signs in stores about safe gun storage; parents can normalize asking about guns and how they are stored before play dates; and local leaders can more frequently talk about such shootings and encourage gun safety.
“We all need to play a role in public awareness,” Burd-Sharps said. “I think there’s many different modes of getting this message across, and it’s urgent.”
Recent shootings in the Houston area have once again put a spotlight on the law.
• On April 9, a 3-year-old shot and killed his 8-month-old brother, Royal Gordon, in a Houston apartment, according to police, though it is not clear how the child got a firearm. The incident remains under investigation.
• In early February, a 5-year-old girl was reportedly shot in the leg by her brother who was playing with a gun. Prosecutors charged Rory Mikel, 24, with making a firearm accessible to a child in connection to the shooting.
• And in the fall, a 3-year-old boy in Porter fatally shot himself after he picked up a pistol that had fallen during his own birthday party. No charges have been filed in that case.
“The majority of them are just accidents and you have to prove criminal negligence on behalf of the gun owner,” said Kelly Blackburn, chief of the trial bureau of the Montgomery County district attorney’s office, who did not work on the case involving the child in Porter. “The majority of the time the person you’re going to charge, they’ve already lost a child. The ultimate punishment, they’ve already received.”
Blackburn said prosecutors look at the totality of a situation and search for carelessness.
“That’s why we really look at the actions of the individual to determine: Were their actions reasonable?” Blackburn said. “Or was this person reckless? Was there a complete disregard for the safety of the children?”
Public service announcements and news media coverage of shootings could help remind people to store guns safely, Blackburn said. The state also funds an awareness campaign from DPS about safe gun storage.
“If there is a loaded gun in your house,” he said, “there’s a possibility that a child or anyone can access it.”
Marentha Sargent and her friends jumped when they heard the blast of a gun.
A kitchen door then swung open and she saw her 14-year-old daughter, Adrienne Lambert, in her final moments. Sargent and her daughter had been visiting the Deer Park home of a family friend when the man’s son picked a gun up from a table and started handling it. The gun discharged, striking Adrienne. A gun safe was about 15 yards away.
Before the 2017 shooting, Sargent didn’t ask friends about guns in their homes. Now she encourages all parents to ask, likening the situation to that of a parent of a child who can’t swim checking to see if a pool is nearby. She can’t help but look for potential death traps, as she calls them, when she’s anywhere but home.
Safe gun storage is not about taking away anyone’s guns, said Sargent, who owns firearms and safes in which to store them: It’s about being responsible.
“All of these unintentional shootings, these children that we see, are so preventable,” she said. “As adults, you know, we tend to get lazy about things and you can’t be lazy when you’re trying to protect your children.”
Sargent finds hope, she said, in people hearing about her daughter’s death and becoming encouraged to do better, not just dismissing such violence as a societal or gun problem.
Helping prevent others from feeling the pain she has experienced offers a peace of sorts given the difficulty in obtaining justice under the current law. She said the father of the boy who fatally shot Adrienne served 30 days in jail and his mother received probation; the boy served a year in juvenile detention for criminal negligent homicide.
“There was no justice for Adrienne when it came right down to it. You know, there were punishments handed out, but when you’re talking about someone’s life, it just didn’t seem balanced,” said Sargent, who moved away after the shooting and recognized the father’s sentence was among the strongest outcomes of similar cases she found.
“I just had to process it that way: That this was the best that Texas law could do for Adrienne, which is sad.”