The Second Amendment of the United States Constitution gives citizens the right to bear arms. However, the right to bear arms is not unlimited. Texas residents who have been convicted of a felony can face restrictions on the right to own guns. Even though a felony conviction does not necessarily include a lifetime ban on possessing a firearm, those convicted cannot keep a firearm before their rights have been legally restored. Possession of a firearm as a person with a felony conviction in his or her history is in itself a third-degree felony offense.
Possession of a Firearm by a Convicted Felon is a Criminal Charge in Texas
Under Texas law, a person who’s been convicted of a felony can be charged with unlawful possession of a firearm. Prosecutors must prove the following elements to convict a defendant of possession of a firearm by a convicted felon:
- The defendant possessed a firearm after being convicted of a felony but before the fifth anniversary of the defendant’s release from confinement following the conviction of a felony, or
- The defendant’s release from prison or community supervision, mandatory supervision, or parole, or
- After the same period at any location other than the premises at which the defendant lives
Federal vs. State Law
Under Texas state law, if you have been convicted of a felony, you cannot possess a firearm in your residence until five years has gone by from the date your sentence was completed. In other words, you can possess a firearm in your home five years after you finished your prison or parole sentence. However, federal law regarding felons in possession of a firearm is not the same as state law.
As a result, even though convicted felons can lawfully possess a firearm in their home under Texas law in limited circumstances, they can still be charged and convicted under federal law. Under federal law, felons who have been convicted may never possess a firearm. The current federal policy is to defer to state law on this issue, so it is unlikely that a defendant would be prosecuted, but it is still worth considering.
Possession of a Firearm by a Person Convicted of Assault
Texas residents with a felony conviction on the record are not the only group of people barred from possessing firearms. Those who have been convicted of a Class A misdemeanor assault involving a member of their family or household cannot possess a firearm. As with felons, they can be charged with a crime if they possess a firearm before the fifth anniversary of the later of the date of their release from confinement or they are released from Community Supervision after they have been convicted of the misdemeanor. The crime of possessing a firearm, in this case, is a Class A misdemeanor.
What Constitutes “Possession”?
If you have been charged with possession of a firearm by a person convicted of a felony, the prosecution must prove that you possessed a firearm to convict you. The idea of possession can be abstract, but Texas courts have defined the term as the actual care, custody, control, or management of a firearm. The prosecution must prove that you voluntarily obtained a firearm or that you were aware that you controlled the firearm for a sufficient time period to permit you to terminate your control. in short, the prosecution must prove the following:
- A person
- Who has been convicted of a felony
- Voluntarily possessed a firearm
- After a conviction and before the fifth anniversary of his or her release from prison or parole
If you are not aware that you had a firearm in your possession, your lawyer can challenge the prosecutor’s charge. Additionally, if you did not voluntarily have the firearm, but were forced by someone else to possess a firearm, your lawyer can argue for a dismissal. Perhaps your roommate had a firearm, but you were never actually in control of the gun. All of these factors are important in building a strategic legal defense. The sooner you discuss your case with a criminal defense lawyer, the better.
The Punishment for Possession of a Firearm by a Convicted Felon in Texas
The punishment for possession of a firearm by a convicted felon is significant. This crime is categorized as a third-degree felony. If you are convicted, you will face up to 10 years in prison and/or a fine of up to $10,000. Texas’s criminal laws imposed aggravated consequences for those who are considered habitual felony offenders.
If the defendant has been previously convicted of a felony other than a state jail felony, he or she can be punished for a second-degree felony. The consequences for a second-degree felony are even more severe than a third-degree felony. If you are convicted of a second-degree felony, you can receive a prison sentence of up to 20 years and a fine of up to $10,000.
Restoration of Rights
There is currently only one way for a felon to regain the right to possess a firearm in Texas. He or she will need to seek a full pardon. The governor issues very few pardons every year, so pardon is unlikely and quite expensive. Until Texas state legislators changed the law regarding a felon in possession of a firearm, it is still a felony to possess a firearm, and less than five years have passed since completing the sentence. Even then, felons can only possess a firearm in their own home for self-protection.
Discuss Your Case With a Fort Worth Criminal Defense Lawyer
Have you been charged with the crime of a felon in possession of a firearm? If so, you need an experienced criminal defense lawyer on your side. Contact the Law Offices of Steven Jumes today to schedule your initial consultation to learn how attorney Steve Jones can fight for you.