Police Batons and Their Legality in Texas

Status of Batons under Texas Law

In Texas, the legality of baton use and possession is governed under Title 1 of Chapter 46 (Weapons) of the Penal Code. Under Section 46.01, imperative definitions are given which effectively define a "club" to be any "instrument that is specially designed, made or adapted for the purpose of inflicting death or serious bodily injury by striking a person with the instrument." There is also an exception to the definition at Section 46.01(3)(E) that designates "an impact-absorbing, limb protection weapon designed to keep a defensive position" as an aspect of sport or athletic competition. These are further classified as a "baton, a nightstick, or a Billy club that is designed to be used for sport or athletic competition or for personal protection" under Section 46.05(e).
Under Section 46.02(a)(3), however, "a person commits an offense if they intentionally, knowingly, or recklessly carry on or about their person, a club." Section 46.02(a) goes on to make exception for individuals who "are licensed to carry a handgun by the state, in a vehicle, or watercraft that is owned by the actor or under the actor’s control" or those who "are required by their employment or general public safety, and are going to or from, their place of employment or while performing their employment duties or responsibilities…," but are not otherwise licensed by the state to possess/transport a club. It should be noted that under Section 46.15(b) , individuals who are employed by a school, and carry "electronic incapacitation devices designed to disable the motor senses of a person, radio frequency identification locking devices, or knives designed for the purpose of protecting against the use of force" are exempt from the regulations of Section 46.02(a).
Appendix A of Section 46.01 of the Penal Code makes explicit the list of prohibited weapons in Texas and includes items such as "zipper handcuffs of the type used by police officers," "hand chains," and "thumb cuffs" as part of its list. Under Section 46.02(a)(2), prohibited weapons do not include items "that are designed for the purposes of sport or athletic competition." Exceptions to the legal prohibition on non-department use of police batons and other such implements do exist if the individual using the weapon can show that its use was in self-defense. As an example, in Ex parte Vargas, a man was indicted for "aggravated assault on a police officer with a danger-facilitating device." It was noted that the "danger-facilitating device" that was used was a police baton. However, the court indicated that "the State must show that Vargas did not act justifiably." Because the police officer’s baton was used by the individual in self-defense, the court found that the evidence was insufficient to support the trial court’s finding based on a preponderance of the evidence, and directed the acquittal of Vargas.

Who Carries Batons Legally

Legally, police batons are generally considered to be a club. A club is a prohibited weapon, which in Texas, is illegal to carry without a license. It is important to note that carrying a club can be charged as a State Jail Felony, though is often charged as a Class "A" Misdemeanor. In rare instances, individuals have been charged with a 3rd Degree Felony, particularly if there have been reports of them using it inappropriately (i.e. hitting another person with it). However, certain individuals are permitted by law to carry "clubs" for their particular line of work. For example: peace officers, security personnel, guard and/or watchmen, personal protection employees, etc. Careful consideration of the definitions of these terms, provided in Chapter 46 of the Texas Penal Code, is critical because the firearms statute and rule of law of peace officers make it clear that there are exceptions to those who may legally carry clubs or police batons.
Of course, these rules are only applicable when individuals are not currently involved in criminal activity. If an individual is carrying a club to commit an assault or robbery, then the exception to those who may legally carry a club absolutely does not apply to them. This is very similar to the "traveling" defense. If an individual is traveling to or from work, and is arrested with a firearm, the police will assume the individual is "traveling", and has the right to travel with a firearm. However, this defense has no application if the individual is committing a robbery at the time.

Police Use of Batons

The use of police batons by law enforcement officers is guided by the Texas Government Code, specifically sections 614.033, 614.034, 614.035, and 614.036. These sections outline the regulations officers must follow, such as determining the degree of force appropriate for a situation. Officers are typically required to exhaust all reasonable alternatives before resorting to physical force. The Governor’s biennial report on police use of force shows that in 2012, a total of 88 officers in Texas were injured after being attacked with batons, and that of these, 12 were forced to shoot their assailants in self-defense.
Government Code section 614.041(g) requires locally created law enforcement agencies without "a policy that is consistent with this subchapter" (regarding the use of force) to "adopt a policy requiring the agency to require peace officers employed by the agency to complete a training course on the use of force." The Executive Director of the Texas Commission on Law Enforcement is required to establish a state-approved course that is no more than 8 hours in length, which must be taught in the basic peace officer course. Para-military drills that "create a high-risk environment for participants" are not permitted.
Training on "excessive force issues" is compulsory in Texas law enforcement academies, as required by Government Code section 1701.252. In addition, the subject of excessive force must also be included in the curriculum taught to jailers (pursuant to Government Code section 1701.258) and municipal or county jail officers (pursuant to Government Code section 1701.2545). The training for all acknowledge that such force may never be used except to protect the officer or a third person, prevent escape, or make an arrest and prevent the destruction of property, and only after "all other reasonable alternatives . . . have been exhausted."

Restrictions, Fines, and Crimes

Baton Wand / Police Batons are legally restricted weapons in Texas, only carried or used by law enforcement in the course of their official capacity. The list of approved "hand weapons" for police officers includes, clubs, nightsticks, tonfas, expandable batons, etc. The Texas Penal Code provides for various legal definitions of "club" based on how a device is carried and used.
A person commits an offense if the person intentionally or knowingly possesses or goes with a club in plain view of another in a public place. An offense under this subsection is a Class C misdemeanor.
A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a club, an offense under this subsection is a class A misdemeanor, except that the offense is a state jail felony if the offense is committed: (1) on any premises licensed or issued a permit by the state or a political subdivision of the state for alcoholic beverages, (2) on or in the course of official duties on a premises owned or leased by a governmental entity , (3) in an event subject to the jurisdiction of a governmental entity.
An offense under Subsection (b) is a class A misdemeanor if it is committed in a correctional facility or detention facility. An offense under Subsection (c) is a state jail felony if it is committed: (1) on any premises licensed or issued a permit by the state or a political subdivision of the state for alcoholic beverages, (2) on or in the course of official duties on a premises owned or leased by a governmental entity as defined by section 1.07, or (3) in an event subject to the jurisdiction of a governmental entity. An offense under Subsection (d) is a state jail felony. A person adjudged guilty of a Class A misdemeanor shall be punished by a fine not to exceed $4,000; by confinement in jail for a term not to exceed one year; or by any combination of these penalties. A state jail felony shall be punished by confinement in a state jail for any term not more than two years or less than 180 days.

Recent Changes to Baton Laws

While Texas has seen minimal turbulence regarding legislation about police batons in recent years, in 2017 the Texas Legislature enacted a new bill that changes the way the state punishes people for carrying these weapons. However, the changes in law do not affect the legality of possessing or using any type of baton. The new legislation, House Bill 1935, went into effect September 1, 2017. Prior to this bill, the offense of "carrying a club" was a Class A misdemeanor. This means that, if convicted, a person must pay a fine of up to $4,000 and/or serve up to a year in jail. The law was amended to make the offense of carrying a club a different type of misdemeanor offense, a Class C offense. Class C misdemeanors, such as disorderly conduct, are punished with a fine of up to $500. The Texas legislature made the change with hopes of focusing their time and money on arresting, prosecuting, and punishing serious offenders. The lawmakers estimated that the previous law resulted in nearly $100 million in unnecessary judicial and jail expenses every year for people found guilty of carrying clubs. While prosecutors will still spend time and money fighting charges for offenses under the new law, those resources will likely be used on other offenses, which will save some taxpayers’ dollars. The law did not make any changes to who is legally permitted or prohibited from carrying a baton, nor did it change the state’s regulations on which clubs are legal to have or use.

Baton Laws as Compared to Other States

While Texas permits the use of batons as a legal self-defense device, some states outright prohibit certain types of batons. For instance, in California, batons that are longer than 6 inches or that extend past the wrist when closed into a baton are prohibited. While an officer may freely carry a baton in California, a civilian cannot own or possess batons or any similar device.
Hawaii calls their baton laws "nightsticks." The law states that, while nightsticks can be openly and legally carried by officers, "every person who carries any … nightstick [where they can be seen] shall wear upon his clothing conspicuously, and in plain public view, the badge of his office."
Massachusetts’ statute defines a "billy club" as a nightstick or "blackjack, slapjack, sandbag, sap, and similar implements." While it is illegal for civilians to carry them , law enforcement officers and other peace officers are exempt. The law also allows the Massachusetts Attorney General to issue a permit to carry a baton if "there is a need for such carrying."
Maine allows batons to be carried openly, although it is illegal to conceal or cause a baton to be concealed on your person. Rhode Island, on the other hand, bans all batons as a means of self-defense, and prohibits citizens from owning them, carrying them, or selling them. Washington, however, has no restrictions against batons.
A few states, such as New Hampshire, New York, and New Jersey have restrictions against carrying so-called "billies" or "blackjacks." South Carolina restricts the use of "deadly", which include bats, clubs, rubber hose, and blackjacks, unless: Colt-produced revolvers are an exception, as these firearms are prohibited under the law.