Texas Penal Code § 46.04 permits an individual with a felony conviction to possess a firearm on the premises where they live five years after their release from prison or probation. The one major catch to this state law is that it does not trump the applicable federal law relating to firearm possession for convicted felons, which is found in 18 U.S.C. § 922(g).
People with felony convictions can easily find themselves in all kinds of situations in which they allegedly possess firearms in violation of either state or federal law. Either kind of criminal case will be an immediate problem for an alleged offender as the penalties associated with these kinds of offenses can be severe, especially if a person has a prior criminal record.
Possession of a Firearm by a Convicted Felon Defense Lawyer in Fort Worth, Arlington, Grapevine, Keller, and Southlake, TX
If you were arrested for allegedly possessing a firearm as a convicted felon in Grand Prairie, Arlington, Fort Worth, or a surrounding area of Tarrant County, you deserve to get answers about the kind of challenge you will be facing. Do not wait to find yourself an experienced criminal defense attorney.
You will want to make sure you reach out to the Law Offices of Richard C. McConathy for help with your criminal charges as our firm has represented scores of convicted felons facing new criminal charges. We will be able to sit down with you and really go over all of the details of your case when you call (817) 422-5350 or contact us online to receive a consultation.
Possession of a Firearm by a Convicted Felon Penalties in Texas
Under Texas Penal Code § 46.04(a), a person who has been convicted of a felony commits unlawful possession of a firearm offense if they:
- possess a firearm after a conviction and before the fifth anniversary of their release from confinement following conviction of the felony or their release from supervision under community supervision, parole, or mandatory supervision, whichever date is later; or
- after the same period at any location other than the premises at which the person lives.
Unlawful possession of a firearm in this scenario is a third-degree felony.
Texas Penal Code § 46.04(b) establishes that a person who has been convicted of Class A misdemeanor assault involving a member of the person’s family or household commits an offense if they possess a firearm before the fifth anniversary of the later of
- the date of their release from confinement following conviction of the misdemeanor; or
- the date of their release from community supervision following conviction of the misdemeanor.
Unlawful possession of a firearm in this scenario is a Class A misdemeanor.
Texas Penal Code § 46.04(f) stipulates that an offense under the laws of Texas, another state, or the United States is a felony if, at the time it is committed, the offense:
- is designated by a law of this state as a felony;
- contains all the elements of an offense designated by a law of this state as a felony; or
- is punishable by confinement for one year or more in a penitentiary.
An offense is not considered a felony if, at the time the person possesses a firearm, the offense was not designated by a law of this state as a felony and does not contain all the elements of any offense designated by a law of this state as a felony.
Unlawful possession of firearm crimes may be punishable as follows:
- Class A Misdemeanor — Up to one year in jail and/or a fine of up to $4,000
- Third-Degree Felony — Up to 10 years in prison and/or a fine of up to $10,000
Under Texas Penal Code § 12.42, aggravated consequences can be imposed for individuals deemed habitual felony offenders. If an alleged offender has been previously convicted of a felony other than a state jail felony, they can be punished for a second-degree felony, which can be a sentence of up to 20 years in prison and/or a fine of up to $10,000 if convicted for unlawful possession of a firearm.
According to the Texas Department of Public Safety (DPS), there were 12,188 arrests for weapon violations in 2019. The number of arrests was a 12.2 percent decrease in comparison with 2018, and the 2019 weapons arrest rate of 42.0 percent arrests for every 100,000 persons was a decrease of 12.2 percent from 2018.
Federal Possession of a Firearm by a Convicted Felon Penalties
The federal law prohibiting any person convicted of a crime punishable by more than one year of imprisonment is found in 18 U.S.C. § 922(g)(1). 18 U.S.C. § 922(g) states that certain persons are prohibited from shipping, transporting, possessing, or receiving a firearm or ammunition while subject to a prohibition from doing so, most commonly because of a prior conviction for a felony offense.
Federal law does not apply to people whose gun rights have been restored by the state.
Federal convictions may be punishable by up to 10 years in prison and a fine of up to $250,000. When an alleged offender has three or more prior convictions for felony crimes of violence or drug trafficking felonies, the Armed Career Criminal Act (ACCA) mandates a minimum sentence of 15 years in prison.
According to the United States Sentencing Commission (USSC), there were 7,647 cases involving convictions under 18 U.S.C. § 922(g) in the fiscal year 2019. One of the top five districts for felons in possession of firearm offenders was the Northern District of Texas.
The USSC reported that the average sentence for an 18 U.S.C. § 922(g)(1) violation was 64 months in the fiscal year 2019, which was a decrease from 72 months in the fiscal year 2015. The average guideline minimum was 71 months in the fiscal year 2019, down from 81 months in the fiscal year 2015.
According to the USSC, the average sentence for all felons in possession of firearm offenders was 64 months. The average sentence for offenders convicted of violating only section 922(g) and under ACCA was 188 months, while the average sentence for offenders convicted of violating only section 922(g) but not sentenced under ACCA was 58 months.
The USSC reported that 97.7 percent of felons in possession of a firearm offender were men. Of the offenders, 55.4 percent were Black, 24.8 percent were white, 17.1 percent were Hispanic, and 2.7 percent were from other races. The average age of an offender was 34 years.
According to the USSC, 97.4 percent of felons in possession of firearm offenders were sentenced to prison, although sentences varied widely on whether a mandatory minimum penalty was applied in the case. There was 15.6 percent of felon in possession of firearm offenders convicted of one or more statutes with a mandatory minimum penalty that included:
- 4.0 percent were sentenced under 18 U.S.C. § 924(e), the Armed Career Criminal Act (ACCA);
- 6.0 percent were convicted of violating 18 U.S.C. § 924(c);
- 5.6 percent were convicted of another statute carrying a mandatory minimum penalty, most of which were drug offenses.
The USSC reported that 65.5 percent of felons in possession of firearm offenders were sentenced under the Guidelines Manual. Of those offenders, 82.8 percent were sentenced within the guideline range, 10.5 percent received a substantial assistance departure with the average sentence reduction being 44.3 percent, and 5.6 percent received some other downward departure for which the average sentence reduction was 34.9 percent.
There was 34.6 percent of felons in possession of firearm offenders who received a variance. Of those offenders, 89.7 percent received a below-range variance with an average sentence reduction of 34.3 percent, and 10.3 percent received an above-range variance with an average sentence increase of 52.4 percent.
Tarrant County Possession of a Firearm by a Convicted Felon Resources
Can a felon legally have a gun in Texas? — This November 14, 2017, KHOU-TV article discusses firearm rights in Texas. KHOU reported that a person with a felony conviction could possess a firearm on the premises where they live, five years after the disposition of their conviction. The article stated that federal law will not allow for a convicted felon to possess a firearm under any circumstances unless they have been pardoned.
Felons & Firearms | Gun Laws | Guides at Texas State Law Library — Find state and federal firearm rights laws on this website. Also review a section of articles explained in plain English. Additional links are provided for parties to contact about firearm rights.
Find A Tarrant County Defense Attorney for Possession of a Firearm by a Convicted Felon| Law Offices of Richard C. McConathy
Were you arrested for possession of a firearm by a convicted felon offense anywhere throughout Tarrant County and Southlake, Fort Worth, Arlington, Grapevine, Keller, TX area? Contact the Law Offices of Richard C. McConathy as soon as you possibly can.
Our firm has defended many different people with prior felony convictions facing new criminal charges and we know how to help these people avoid many of the most damaging penalties. Call (817) 422-5350 or contact us online to have our firm look over your case and discuss your options with you more fully during a consultation.