Butterfly Knife Legality
Originating in the Philippines, the butterfly knife, also known as a balisong or fan knife, is a type of folding knife consisting of a blade concealed between two handles that is opened by gravity. There is a variety of butterfly knife laws across the United States that outlaw the knife in some form or fashion because of its quick, single-handed deployment and potential use as a weapon. Some states completely ban the possession or sale of the butterfly knife, while others only make it illegal to carry the knife concealed.
Is a Butterfly Knife Illegal in Texas?
In Texas, a butterfly knife is considered a type of switchblade, which is defined in the Penal Code as any knife that folds into the handle and opens automatically by a spring mechanism or the force of gravity. The possession, manufacture, transport, or sale of switchblades was previously prohibited under § 46.05 of the Penal Code, but on September 1, 2013, the Texas Legislature modified the statute and made switchblades, and therefore butterfly knives, no longer prohibited. This law could very quickly change, again. This is the law against prohibited weapons, such as brass knuckles.
However, this does not give you a free pass to carry around any type of butterfly knife you want to any location you want. Any knife with a blade over 5.5” is considered an “illegal knife,” and it is an offense under § 46.02 to carry an illegal knife on or with you anywhere besides your own vehicle or property or a vehicle or property that is under your control. It is also prohibited under § 46.03 to carry an illegal knife in certain locations such as a school or educational institution, on the premises of any government court, a racetrack, or into the secured area of an airport. Your safest bet is to make sure your butterfly knife blade is not long enough to be considered illegal.
Butterfly Knife as a Deadly Weapon
Although it is now legal to possess a butterfly knife, it can still lead to serious legal consequences if you had one with you when you committed a crime. Under article 42.12 of the Texas Code of Criminal Procedure, if a “deadly weapon” is used or exhibited during the commission of a felony offense or during the immediate flight after committing a felony offense, you are no longer eligible for community supervision (probation) as a possible sentence by a judge. A deadly weapon is 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. Weapons charges are very serious.
So is a butterfly knife a deadly weapon? Most likely, yes. Normally, the butterfly knife is submitted to the factfinder (judge or jury) to decide if the knife has characteristics that make it deadly. In Thompson, the court concluded that a rational jury could have found beyond a reasonable doubt that a butterfly knife with a serrated edge is a deadly weapon. Thompson v. State,
When is a butterfly knife used or exhibited? This question dives into a much murkier area of the law. Clearly, when the knife is used to attack someone or presented in a threatening manner, during a robbery for example, the “used or exhibited” standard is satisfied. Threatening or injuring someone with a knife is Aggravated Assault in Texas. But what if, during the sale of illegal drugs for example, the defendant simply had the butterfly knife with him in his pocket? The courts have defined “used” as “any employment of a deadly weapon, even simple possession, if such possession facilitates the associated felony” and “exhibited’ as “consciously shown, displayed, or presented to be used.” Coleman v. State,
In Cooks, the defendant was seen playing with a butterfly knife before making a drug deal. However, he argued that there was no evidence that he actually used or exhibited the knife during the sale of drugs.
The court concluded that simply possessing a weapon can facilitate the possession of drugs with intent to sell them and that by possessing the butterfly knife the defendant “used” it to facilitate the distribution of cocaine.
This definition probably does not fit into the average person’s definition of the word “use.” It is important to realize that a judge or jury may find that you “used” the knife without actually touching it, much less displaying it. Today you can legally carry a butterfly knife with you, but beware of the consequences it may have.
If you are facing any weapons related criminal charges in Texas, contact a criminal defense attorney. The statements you make to police can make your situation much worse.
