Possession of a Firearm by a Felon
For individuals with a felony conviction, firearm possession isn’t as straightforward as it is for others. Texas law does allow some felons to regain limited gun rights after a waiting period, but strict restrictions still apply. Understanding what counts as “possession” and the penalties that come with it is crucial to avoiding serious legal consequences. Whether the firearm is in your hand, your home, or even your vehicle, knowing the law can mean the difference between freedom and another felony charge.
What Does It Mean to Possess a Firearm in Texas?
In Texas, “possession” of a firearm can be categorized as either “actual” or “constructive.”
Actual possession refers to having physical control of a firearm, such as holding it or having it on one’s person.
Constructive possession, on the other hand, occurs when an individual has the power and intention to control the firearm, even if it’s not physically on them—for instance, having a firearm stored in one’s home or vehicle.
Both forms of possession have legal consequences, especially for individuals with prior felony convictions.
Texas Laws Concerning Felons in Possession of Firearms
Under Texas Penal Code § 46.04, individuals convicted of a felony are prohibited from possessing firearms within five years following their release from confinement, parole, or probation—whichever is later. After this five-year period, a felon may possess a firearm, but only within the confines of their residence. It’s important to note that this state allowance conflicts with federal law, which imposes stricter regulations.
Elements of Felon in Possession of a Firearm Offense in Texas
To secure a conviction for unlawful possession of a firearm by a felon in Texas, the prosecution must establish the following elements:
- The individual has a previous felony conviction.
- The individual knowingly possesses a firearm.
- The possession occurred within five years of the individual’s release from confinement, parole, or probation.
Conflict with Federal Law
While Texas law provides limited firearm rights for felons after five years, federal law under 18 U.S.C. § 922(g)(1) strictly prohibits all convicted felons from possessing firearms, with no exceptions. This means that even if Texas law allows it, possessing a firearm can still be a federal crime, leading to severe penalties.
Firearm Restrictions for Persons Convicted of Misdemeanors
Beyond felonies, Texas law also imposes firearm restrictions on individuals convicted of misdemeanor offenses involving family violence. Such individuals are prohibited from possessing firearms for five years following their release from confinement or community supervision. After this period, they may possess a firearm, but only within their residence.
Penalties for Possession of a Firearm by a Convicted Felon in Texas
Unlawful possession of a firearm by a felon is classified as a third-degree felony in Texas. Convictions can result in:
- Imprisonment: Between 2 to 10 years.
- Fines: Up to $10,000.
For individuals with prior felony convictions beyond a state jail felony, penalties can escalate to a second-degree felony, carrying:
- Imprisonment: Up to 20 years.
- Fines: Up to $10,000.
Defenses to Charges of Being a Felon in Possession of a Firearm
If you have been charged with illegal firearm possession as a felon, there may be legal defenses available, including:
1. Lack of Possession
The prosecution must prove that you had actual or constructive possession of the firearm. If the gun was found in a shared home or vehicle, there may be reasonable doubt about who actually possessed it.
2. Unknowing Possession
If the firearm was placed in your possession without your knowledge, you may have a defense. For example, if someone left a gun in your car without informing you, it could be argued that you did not “knowingly” possess it.
3. Federal vs. State Law Conflicts
While Texas law allows possession after five years within a residence, federal law does not. If state law enforcement officers conducted the arrest, it might be possible to challenge the charge based on jurisdictional issues.
Arrested? Don’t Plea, Call Me!
Facing a charge for unlawful possession of a firearm as a felon can be overwhelming, and the legal consequences are severe. However, every case is unique, and potential defenses may apply to your situation. If you or a loved one is dealing with firearm-related charges, having an experienced attorney on your side can make all the difference.
At Texas Criminal Defense Group, we are committed to protecting your rights and crafting a strong defense strategy tailored to your case. Contact us today for a free consultation, and let us help you navigate the legal system with confidence.