Can A Felon Possess A Firearm In Texas?
A felony conviction can affect firearm rights long after a person finishes a jail or prison sentence. Texas law does not impose the same firearm restrictions in every situation, which can make the issue confusing for people who believe they have already completed every part of their sentence. State law contains a limited provision that may allow certain people with felony convictions to possess a firearm at their residence after a specific period has passed.
Federal law, however, imposes a separate prohibition that can continue even when Texas law appears less restrictive. That difference is extremely important because conduct that may not violate Texas Penal Code § 46.04 can still expose someone to federal prosecution. When we evaluate a firearm-possession case in Galveston, we look at the prior conviction, the date the sentence and supervision ended, where the firearm was found, who actually possessed it, and whether federal law also applies.
Texas Law Restricts Firearm Possession After A Felony Conviction
Texas Penal Code § 46.04 governs unlawful possession of a firearm by a person previously convicted of a felony. The statute establishes two different time periods.
During the first five years after release, Texas law broadly prohibits firearm possession. That five-year period begins from the later of the person’s release from confinement following the felony conviction or release from community supervision, parole, or mandatory supervision. In other words, the five-year clock does not necessarily begin on the date of conviction or the day a person physically leaves jail or prison. If supervision continues afterward, the relevant date may be the date that supervision ends.
This distinction can have serious consequences. Someone may believe five years have passed because the conviction itself occurred many years earlier, yet still remain within the prohibited period because parole or another form of supervision ended more recently.
What Happens After The Five-Year Period?
Texas Penal Code § 46.04(a)(2) creates a limited rule after the five-year period expires. Under state law, a person with a felony conviction can still commit an offense by possessing a firearm at any location other than the premises where the person lives.
That means Texas law does not simply restore unrestricted firearm rights after five years. The statutory language is much narrower. It concerns possession at the person’s residence.
A firearm carried in a vehicle, kept at another person’s house, transported to a shooting range, taken hunting, or possessed at another location may raise a different issue under § 46.04. The fact that more than five years have passed does not create a general right under Texas law to carry a firearm anywhere the person wishes.
Anyone relying on this provision should also understand that Texas law is only one part of the analysis. Federal law may prohibit the possession entirely.
Federal Law Can Still Prohibit Firearm Possession
Federal law is one of the most important issues in any felon-in-possession case. Under 18 U.S.C. § 922(g)(1), a person who has been convicted of a crime punishable by imprisonment for more than one year generally may not possess a firearm or ammunition that falls within the federal statute. This restriction is separate from Texas Penal Code § 46.04.
Federal law does not contain the same simple five-year residential exception found in Texas law. As a result, a person might reach a point where Texas law does not prohibit firearm possession at the person’s residence, yet federal law may still prohibit that possession.
This is one of the most dangerous misunderstandings surrounding firearm rights after a felony conviction. Someone can read the Texas statute, wait five years, keep a firearm at home, and believe everything is legal. That conclusion may ignore federal law entirely.
Before a person with a felony conviction obtains or possesses a firearm, the status of both state and federal firearm rights should be carefully reviewed.
Federal Felon-In-Possession Charges Carry Serious Penalties
Federal firearm charges can result in substantial prison exposure. A knowing violation of 18 U.S.C. § 922(g) can be punished under 18 U.S.C. § 924. Current federal law provides for imprisonment of up to 15 years for certain knowing violations of § 922(g), along with potential fines.
The possible consequences become even more severe for certain defendants with qualifying prior convictions. Under the federal Armed Career Criminal Act, contained in 18 U.S.C. § 924(e), a person convicted under § 922(g) who has three qualifying previous convictions for violent felonies, serious drug offenses, or a combination of both committed on different occasions can face a mandatory minimum sentence of 15 years.
Federal sentencing can also be affected by the person’s criminal record, the circumstances surrounding possession, the type of firearm, whether drugs were involved, and whether prosecutors allege that the firearm was connected to another crime.
Texas Unlawful Possession By A Felon Is A Third-Degree Felony
A violation of Texas Penal Code § 46.04(a) is generally a third-degree felony. Under Texas Penal Code § 12.34, a third-degree felony carries a possible prison sentence of two to ten years and a fine of up to $10,000.
Those consequences make the location and timing of possession extremely important. Prosecutors may need to establish when the prior conviction occurred, when confinement or supervision ended, where the firearm was located, and whether the accused actually possessed it.
A felon-in-possession allegation should never be treated as a minor weapons charge. A new felony conviction can result in years of incarceration and can also affect employment, housing, professional opportunities, probation status, and other pending criminal matters.
Possession Does Not Always Mean The Gun Was In Your Hand
One of the most important factual issues in firearm cases is possession. Police do not necessarily have to find a firearm physically in a person’s hand, waistband, or pocket to make an arrest. Prosecutors may rely on a theory of constructive possession when a firearm is located in a place the accused allegedly exercised control over.
For example, officers may find a firearm in a bedroom, vehicle, closet, garage, bag, or shared residence. The prosecution may then argue that the accused knew the firearm was there and exercised care, custody, control, or management over it.
That does not mean the presence of a firearm automatically proves possession.
Shared locations can create serious factual disputes. If several people had access to the vehicle, home, room, or container where a firearm was found, we look closely at what actually connects our client to the weapon. Ownership of the property is not always the same thing as possession of every object found inside it.
A Gun Found In A Vehicle Can Create Serious Problems
Vehicle searches are a common source of unlawful-possession charges. A firearm may be discovered during a traffic stop, inventory search, arrest, consent search, or probable-cause search. If a person with a felony conviction is driving the vehicle, officers may immediately assume that the firearm belongs to that driver.
The legal analysis does not end there.
We examine where the firearm was located, whether it was visible, who owned the vehicle, whether passengers had access to the area, whether fingerprints or DNA evidence exists, what statements were made, and whether the search itself was lawful.
The five-year provision under Texas Penal Code § 46.04 also matters because possession away from the person’s residence can create state-law exposure even after the initial five-year period has expired.
The Government Must Prove More Than A Prior Conviction
In a federal prosecution, the government has evidentiary obligations concerning the defendant’s prohibited status.
In Rehaif v. United States, the United States Supreme Court held that, in a prosecution under § 922(g), the government must prove that the defendant knew he possessed the firearm and knew that he belonged to the relevant category that prohibited him from possessing it.
In a felon-in-possession case, that generally means prosecutors must prove the defendant knew of the status making firearm possession unlawful under the federal statute.
The existence of the prior conviction is often documented through court records, but that does not eliminate the government’s obligation to prove the elements of the offense. We review the prior conviction, sentencing documents, firearm evidence, statements, search procedures, and every other part of the government’s case.
An Illegal Search Can Affect A Firearm Case
Many unlawful-possession cases begin with a search. Police may find a firearm during a vehicle stop, home search, probation-related search, arrest, or encounter on the street. The Fourth Amendment protects against unreasonable searches and seizures, and evidence obtained through unconstitutional police conduct may be subject to suppression.
We examine why officers stopped the person or vehicle, whether the detention was lawfully extended, whether officers had probable cause to search, whether consent was actually given, whether a warrant existed, and whether police remained within the legal scope of that warrant.
If a firearm was discovered through an unlawful search, a motion to suppress may become one of the most important parts of the defense. The fact that a person has a prior felony conviction does not eliminate Fourth Amendment protections.
Frequently Asked Questions About Felons And Firearms In Texas
Can A Felon Keep A Gun At Home In Texas After Five Years?
Texas Penal Code § 46.04 provides that after the applicable five-year period has passed, a person with a felony conviction violates the Texas statute by possessing a firearm at a location other than the premises where that person lives. This creates a limited state-law distinction for possession at the residence. However, federal law under 18 U.S.C. § 922(g)(1) may still prohibit firearm possession entirely. For that reason, someone should not rely only on the Texas five-year provision when deciding whether firearm possession is lawful. Both state and federal law must be considered.
When Does The Five-Year Period Start Under Texas Law?
The five-year period is measured from the later of release from confinement following the felony conviction or release from supervision under community supervision, parole, or mandatory supervision. It is not necessarily measured from the date of conviction. Someone released from prison who remains on parole for several additional years may therefore have a much later starting date than expected. Reviewing the judgment and supervision records is often necessary before determining whether the statutory period has expired.
Can A Felon Have A Gun In A Car After Five Years?
Texas Penal Code § 46.04(a)(2) restricts possession after the five-year period at locations other than the premises where the person lives. A vehicle ordinarily is not the person’s residential premises merely because the person owns or drives it. A firearm found in a vehicle can therefore create significant state-law concerns. Federal law can create an additional prohibition regardless of whether five years have passed. Anyone with a felony conviction should obtain individualized legal advice before transporting or possessing a firearm.
What If The Gun Belongs To Someone Else?
Ownership and possession are not necessarily the same issue. Prosecutors may attempt to establish possession even when another person legally owns the firearm. The central question often becomes whether the accused knowingly exercised control over the weapon. If a firearm belongs to a spouse, roommate, passenger, friend, or family member, we examine where it was kept, who had access to it, whether our client knew it was present, and what evidence allegedly links our client to it.
Can Federal Prosecutors Charge Me Even If Texas Law Allows The Gun At My Home?
Potentially, yes. Federal and state firearm laws operate independently. Texas may not prosecute certain residential possession after the five-year period under § 46.04(a), but federal law under 18 U.S.C. § 922(g)(1) can still prohibit a person with a qualifying felony conviction from possessing a firearm. A federal conviction under § 922(g) can carry a sentence of up to 15 years, subject to the specific facts and applicable sentencing provisions. That state-federal difference is one of the most important issues in these cases.
Call Mark Diaz & Associates About A Felon-In-Possession Charge In Galveston
A firearm charge involving a prior felony conviction can expose a person to serious consequences under both Texas and federal law. These cases often turn on details that are easy to overlook, including when supervision actually ended, where the firearm was found, whether the accused knowingly possessed it, whether other people had access to the weapon, and whether police conducted a lawful search. We examine each of those issues before deciding how the defense should proceed.
At Mark Diaz & Associates, we represent people facing firearm and criminal charges in Galveston and throughout Houston, Texas. We understand the difference between Texas Penal Code § 46.04 and the federal prohibition under 18 U.S.C. § 922(g), and we examine whether prosecutors can actually prove every element of the charge.
When you hire me, you work directly with me. My clients have my personal cell phone number because questions, emergencies, and concerns don’t always happen during business hours. You won’t be handed off to a junior associate or lost in a system where your case is one of dozens on a crowded docket. From arrest through resolution, I remain personally involved and accessible.
If you have been arrested, investigated, or charged with unlawful possession of a firearm after a felony conviction, call our Galveston felon in possession of a weapon attorney at Mark Diaz & Associates at 409-515-6170 to schedule your free consultation.
