Antique-Carry seems to still be valid.
However, it isn't a negating defense, in other words the prosecution does not have to address it unless the defense brings it up. The burden of proof that a particular weapon is an antique or antique replica is upon the defendant. That means arrest for 46.02/46.03 can occur but should be dismissed on arraignment or trial if the defendant has sufficient proof.
Here's the supporting cases I have found so far:
Jackson vs State 575 S.W.2d 567 (1979)
- Prosecutor not required to prove short-barrel firearm was antique or curio
Cantu vs State 802S.W.2d 1 (1990)
- Defendant has burden of proof to show weapon falls within definition of Antique
- Altering of an original antique to give an illegal characteristic not originally designed or 'integral' voids its status as an antique
- Attempt to use affirmative defense of dealing with weapon solely as curio or antique requires establishing such defense by preponderance of the evidence.
Kimberly Denise Lewis McIlroy vs State 188 S.W.3d 789 (2006)
- Defendent not entitled to defensive issue not brought up at trial
In each of these cases the defendants were unsuccessful in their bids to use antique wording in their cases. Most because they failed to bring it up and several others because they in fact did not have an antique and 1 because of peculiar(to me) interpretation of integral holding that only unmodified antiques were within the definition. To me this seems unconstitutionally vague (Is restoration modification? Repair?, Painting?, replacement parts?), and contradicts the federal statute it was modeled on. The actual weapon involved wasn't discussed beyond being a sawed off shotgun that *may* have been manufactured before 1899. The defense however did not show that the modification occurred before 1899 as well. The modifications mentioned was the barrel shortening, stock shortening, and trigger guard removal. Since they *may* have occurred after 1899 the weapon was ruled a firearm. (Cantu vs State)
All the cases discuss establishing that the weapon fits the definition of Antique ( and replica) falls on the defendant. The State is under no obligation to address that issue if the defense does not, therefore with ineffective counsel it would be completely possible for prosecutor to establish a conviction for someone legitimately carrying an antique or replica under 46.02/46.03.
I am still looking for an affirmative/successful use of such a defense as all the opinions seem to assume such exists:
...one [opportunity for defense] furnishes the defendant with the chance to show that the weapon itself is an antique and, therefore , cannot be characterized as a firearm. Thus he cannot be charged with possession of a firearm since the gun is not a firearm. (Cantu vs State p3 )(Language in brackets inserted for context of post, see case for exact context)