Can You Own A Gun While Under A Protective Order In Texas?

A protective order in Galveston can affect far more than where you can go or whom you can contact. It can also restrict your right to possess a firearm, even if you legally owned the gun before the order was entered. Many people are surprised to learn that firearm restrictions can arise from a civil protective-order proceeding rather than from a criminal conviction.

The specific restrictions depend on the type of protective order, what the court ordered, and whether state or federal law applies. If you are subject to a protective order in Galveston or the Houston area, you should understand the firearm restrictions immediately because possessing a gun in violation of the law can result in a separate criminal charge.

Texas Law Can Prohibit Firearm Possession During A Protective Order

Texas Penal Code § 46.04(c) makes it a criminal offense for certain people who are subject to qualifying protective orders to possess a firearm after receiving notice of the order and before the order expires. The statute applies to orders issued under Texas Family Code § 6.504 or Chapter 85, certain protective orders under the Texas Code of Criminal Procedure, and qualifying orders from other jurisdictions. There is a limited statutory exception involving certain full-time peace officers.

This means the issue is not simply whether you bought the firearm legally. A gun that you lawfully purchased years before a dispute can become illegal for you to possess while a qualifying protective order remains in effect.

Under Texas Penal Code § 46.04(e), an offense under subsection © is generally a Class A misdemeanor. A Class A misdemeanor can carry serious consequences, including possible jail time, a fine, and a criminal record.

Family Violence Protective Orders Can Include A Firearm Ban

Texas Family Code § 85.022 gives courts substantial authority when entering protective orders after findings involving family violence. Restrictions a court may impose include a prohibition on possessing a firearm. Texas courts may also restrict communication, prohibit a respondent from approaching a protected person’s residence or workplace, and impose other conditions intended to prevent further family violence.

A person should carefully read every page of the protective order instead of assuming the restriction applies only to contact with the other party. Protective orders often include several independent conditions, and violating any one can create additional legal problems.

Texas Family Code § 85.022 also provides for suspension of a license to carry when the statutory requirements are met. A license to carry does not override a court order prohibiting firearm possession.

Emergency Protective Orders Can Also Affect Gun Rights

A firearm restriction may arise before a final family violence protective order is entered. Following certain arrests, a magistrate can issue an order for emergency protection under Texas Code of Criminal Procedure Article 17.292.

These orders are frequently associated with arrests involving family violence, stalking, sexual offenses, and other specified allegations. An emergency protective order can impose restrictions concerning contact, locations, and firearms. When an order suspends a person’s license to carry, Article 17.293 requires notice to the Texas Department of Public Safety, which records the suspension and demands surrender of the suspended license.

This is one reason we tell clients not to treat an emergency protective order as paperwork that can be dealt with later. The restrictions generally become legally significant as soon as the order becomes effective and the person receives legally sufficient notice.

You Cannot Avoid The Restriction By Keeping The Gun At Home

A common misunderstanding is that a firearm prohibition only prevents someone from carrying a gun in public. Texas Penal Code § 46.04©, however, addresses possession. That distinction matters.

Possession can become an issue when a firearm is kept in a home, vehicle, bedroom, safe, garage, or another place where prosecutors claim the person exercised custody or control over it. The fact that the gun was never carried outside the house does not automatically prevent prosecution.

Questions involving shared homes can be more complicated. If another lawful gun owner lives in the residence, we would examine where the firearm was stored, who had access to it, who controlled the location, and what evidence prosecutors have connecting our client to the weapon. A gun belonging to another person can still create serious problems when the government claims the accused person possessed or controlled it.

Buying Or Receiving A Handgun Can Create Another Criminal Issue

Texas law also regulates firearm transfers involving people who are under active protective orders. Texas Penal Code § 46.06 prohibits certain handgun transactions involving a person subject to an active protective order. The statute addresses both someone who knowingly provides a handgun to such a person and someone who knowingly purchases, rents, leases, or receives a handgun as a loan or gift while an active qualifying protective order is directed at that person.

Trying to get around a possession restriction by having a friend or relative purchase a firearm therefore does not solve the problem. Depending on the circumstances, it may expose more than one person to criminal liability.

Federal Firearm Law May Apply In Addition To Texas Law

Anyone subject to a protective order should also consider federal law. Under 18 U.S.C. § 922(g)(8), certain people who are subject to qualifying domestic violence restraining orders are prohibited from possessing firearms or ammunition.

In United States v. Rahimi, 602 U.S. 680 (2024), a case arising from Texas, the United States Supreme Court addressed the constitutionality of that federal restriction. The Court held that the federal prohibition can constitutionally apply when a court has found that the person subject to the order poses a credible threat to another person’s physical safety.

State and federal firearm laws do not always contain identical requirements. We therefore examine the particular protective order, the findings made by the court, how notice was given, and the circumstances surrounding the alleged firearm possession before determining what laws may apply.

Violating The Protective Order Can Lead To Additional Charges

Firearm possession may not be the only criminal concern. Texas Penal Code § 25.07 criminalizes specified violations of certain protective orders and bond conditions. Conduct involving prohibited contact, going to restricted locations, threats, family violence, or other conduct identified by the statute may result in a separate prosecution.

A protective-order case can therefore develop into several related legal matters. Someone may face the original criminal accusation, restrictions under an emergency or final protective order, and a new criminal case based on conduct that allegedly occurred while the order was active.

The safest response is to comply strictly with every condition unless and until a court changes the order. An informal agreement with the protected person generally does not give someone permission to disregard a court order.

A Protective Order Is Not The Same As A Criminal Conviction

A protective order and a criminal conviction are legally different proceedings. A person may be placed under a protective order without having been convicted of a crime. That does not mean the firearm restrictions contained in the order can be ignored.

This distinction matters most when clients believe dismissal of a related criminal charge automatically eliminates the protective order. You should check the status of the protective order separately. We look at when the order was entered, its expiration date, whether it has been modified, and whether any other state or federal firearm prohibition remains in effect.

What We Examine In A Protective Order Firearm Case

When someone is accused of possessing a firearm while subject to a protective order, several factual and legal questions may determine the outcome. We examine whether the order qualifies under the statute, whether it was actually in effect, whether our client received the required notice, and whether prosecutors can prove possession of the firearm.

Possession itself can become a contested issue. A firearm found in a shared vehicle or residence does not automatically establish that every person present possessed it. The location of the weapon, accessibility, ownership evidence, statements, fingerprints, electronic evidence, and other circumstances may become important.

We also review whether police lawfully discovered and seized the firearm. If officers obtained evidence through an unconstitutional search or seizure, there may be grounds to challenge the admissibility of that evidence.

Frequently Asked Questions About Texas Protective Orders And Firearms

Can I Keep A Gun I Already Owned Before The Protective Order Was Issued?

Prior ownership does not automatically protect you from a firearm restriction. Texas Penal Code § 46.04(c) focuses on possession while a qualifying protective order is in effect after the person has received notice of the order. A firearm purchased legally before the protective-order proceeding may therefore become unlawful for you to possess during the restricted period.

We recommend carefully reviewing the exact wording of the order rather than relying on when the firearm was purchased. State and federal law may both apply, and the restrictions under each can differ.

Can I Keep My Gun At Home If I Do Not Carry It?

Keeping the firearm inside your home does not necessarily solve the problem. The Texas statute prohibits possession, not merely carrying a firearm in public.

If police find a firearm in your residence, prosecutors may examine whether you exercised actual or constructive possession over it. When several people live in the residence, possession can become a fact-specific issue involving access, control, storage location, ownership, and other evidence.

What If The Gun Belongs To My Spouse Or Roommate?

Ownership and possession are not always the same thing under criminal law. Someone else may legally own the gun, but prosecutors could still claim that you possessed it if you knowingly exercised care, custody, control, or management over the weapon.

For example, a firearm secured in another person’s locked safe may present different evidence from a firearm found beside your bed or inside a vehicle you regularly drive. We would examine the particular facts rather than assuming ownership alone decides the issue.

Does A Temporary Or Emergency Protective Order Affect Gun Rights?

It can. Texas Penal Code § 46.04(c) covers several categories of qualifying orders, including magistrate’s orders for emergency protection issued under Article 17.292 of the Texas Code of Criminal Procedure.

Because there are different forms of protective orders in Texas, the wording and statutory authority for the particular order matter. We review the order itself, the court that issued it, the notice provided, its effective dates, and any specific firearm provisions.

Can I Buy A Handgun While A Protective Order Is Active?

Texas Penal Code § 46.06 prohibits a person from knowingly purchasing, renting, leasing, or receiving as a loan or gift a handgun while an active qualifying protective order is directed to that person. The same statute can also create criminal exposure for someone who knowingly transfers a handgun to a person subject to an active protective order.

Federal firearm restrictions may also affect the transaction. Trying to use another person to obtain a firearm does not make the underlying restrictions disappear and can create additional legal consequences.

Does The Second Amendment Override A Protective Order?

The existence of the Second Amendment does not mean a person can disregard a valid firearm restriction contained in a qualifying protective order. In United States v. Rahimi, the U.S. Supreme Court upheld the constitutionality of the federal firearm restriction as applied where a court found that an individual posed a credible threat to another person’s physical safety.

Constitutional challenges depend heavily on the statute, the terms of the order, and the specific facts. A person who believes an order improperly restricts firearm rights should address that issue through the courts rather than violating the order.

Speak With A Galveston Criminal Defense Lawyer At Mark Diaz & Associates

A protective order can affect your freedom, your home, your family relationships, and your ability to possess firearms. If you have been accused of possessing a gun while subject to a protective order, or you need to understand how an existing order affects your firearm rights, the details of the order matter. We can review the order, determine which Texas and federal firearm restrictions may apply, examine how police obtained the firearm, and evaluate the evidence prosecutors intend to use against you.

If you are facing a firearm charge, protective-order violation, family violence allegation, or another criminal accusation in Galveston or anywhere throughout Houston, Texas, call our Galveston weapon defense attorney at Mark Diaz & Associates at 409-515-6170 to schedule your free consultation. The sooner we can review the protective order and the circumstances surrounding the accusation, the sooner we can identify the legal issues that may affect your defense.