Texas Penal Code 46.04 – Unlawful Possession of Firearm
WHAT IS UNLAWFUL POSSESSION OF FIREARM IN TEXAS?
The Texas law against unlawful possession of a firearm prohibits felons, members of criminal street gangs, persons subject to a protective order, and persons convicted of family violence offenses from possessing firearms under most circumstances.
WHAT IS THE UNLAWFUL POSSESSION OF FIREARM LAW IN TEXAS?
Tex. Penal Code § 46.04. UNLAWFUL POSSESSION OF FIREARM.
(a) A person who has been convicted of a felony commits an offense if he possesses a firearm:
(1) after conviction and before the fifth anniversary of the person’s release from confinement following conviction of the felony or the person’s release from supervision under community supervision, parole, or mandatory supervision, whichever date is later; or
(2) after the period described by Subdivision (1), at any location other than the premises at which the person lives.
(a-1) A person who is a member of a criminal street gang, commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle or watercraft.
(b) A person who has been convicted of an offense under Section 22.01, punishable as a Class A misdemeanor and involving a member of the person’s family or household, commits an offense if the person possesses a firearm before the fifth anniversary of the later of:
(1) the date of the person’s release from confinement following conviction of the misdemeanor; or
(2) the date of the person’s release from community supervision following conviction of the misdemeanor.
(c) A person, other than a peace officer, actively engaged in employment as a sworn, full-time paid employee of a state agency or political subdivision, who is subject to an order issued under Section 6.504 or Chapter 85, Family Code, under Article 17.292 or Subchapter A, Chapter 7B, Code of Criminal Procedure, or by another jurisdiction as provided by Chapter 88, Family Code, commits an offense if the person possesses a firearm after receiving notice of the order and before expiration of the order.
. . .
(e) An offense under Subsection (a) is a felony of the third degree. An offense under Subsection (a-1), (b), or (c) is a Class A misdemeanor.
(f) For the purposes of this section, an offense under the laws of this state, another state, or the United States is, except as provided by Subsection (g), a felony if, at the time it is committed, the offense:
(1) is designated by a law of this state as a felony;
(2) contains all the elements of an offense designated by a law of this state as a felony; or
(3) is punishable by confinement for one year or more in a penitentiary.
(g) An offense is not considered a felony for purposes of Subsection (f) if, at the time the person possesses a firearm, the offense:
(1) is not designated by a law of this state as a felony; and
(2) does not contain all the elements of any offense designated by a law of this state as a felony.
Tex. Penal Code 46.15. NONAPPLICABILITY.
(1) is in the actual discharge of official duties as a member of the armed forces or state military forces as defined by Section 437.001, Government Code, or as a guard employed by a penal institution;
(2) is traveling;
(3) is engaging in lawful hunting, fishing, or other sporting activity on the immediate premises where the activity is conducted, or is en route between the premises and the actor’s residence, motor vehicle, or watercraft, if the weapon is a type commonly used in the activity;
(4) holds a security officer commission issued by the Texas Private Security Board, if the person is engaged in the performance of the person’s duties as an officer commissioned under Chapter 1702, Occupations Code, or is traveling to or from the person’s place of assignment and is wearing the officer’s uniform and carrying the officer’s weapon in plain view;
(5) acts as a personal protection officer and carries the person’s security officer commission and personal protection officer authorization, if the person:
(A) is engaged in the performance of the person’s duties as a personal protection officer under Chapter 1702, Occupations Code, or is traveling to or from the person’s place of assignment; and
(B) is either:
(i) wearing the uniform of a security officer, including any uniform or apparel described by Section 1702.323(d), Occupations Code, and carrying the officer’s weapon in plain view; or
(ii) not wearing the uniform of a security officer and carrying the officer’s weapon in a concealed manner;
(6) is carrying:
(A) a license issued under Subchapter H, Chapter 411, Government Code, to carry a handgun; and
(B) a handgun:
(i) in a concealed manner; or
(ii) in a holster;
(7) holds an alcoholic beverage permit or license or is an employee of a holder of an alcoholic beverage permit or license if the person is supervising the operation of the permitted or licensed premises; or
(8) is a student in a law enforcement class engaging in an activity required as part of the class, if the weapon is a type commonly used in the activity and the person is:
(A) on the immediate premises where the activity is conducted; or
(B) en route between those premises and the person’s residence and is carrying the weapon unloaded.
WHAT IS THE PENALTY CLASS FOR UNLAWFUL POSSESSION OF FIREARM IN TEXAS?
The penalty classification for unlawfully possessing a firearm depends on the reason the person is prohibited from possessing a firearm.
- Class A misdemeanor, punishable by up to one year in county jail, if the person possessed a firearm:
- in their vehicle or boat while a member of a criminal street gang;
- before five years passed since the person’s date of release from jail or community supervision after a conviction or deferred adjudication for a Class A misdemeanor assault family violence;
- while subject to an active protective order;
- Third degree felony, punishable by two to ten years in prison, if the person is a convicted felon, and possessed a firearm:
- before five years passed since the person’s release from confinement or community supervision for a felony offense; or
- anywhere except for the person’s home after five years of the person’s release from confinement or community supervision for a felony offense.
Texas Penal Code Section 46.11 increases the punishment to the next highest category if the person committed a weapons offense within 300 feet of a school, or on premises where a school function or an event sponsored by the University Scholastic League is taking place. This section does not apply to a person charged with bringing a handgun on school premises under 46.03(a)(1).
WHAT IS THE PUNISHMENT RANGE FOR UNLAWFUL POSSESSION OF FIREARM IN TEXAS?
The punishment range for unlawfully possessing a firearm charged as a Class A misdemeanor is up to one year in jail, and a maximum $4,000 fine. A person charged with unlawful possession of a firearm as a third degree felony faces between two and ten years in prison, and a maximum $10,000 fine.
WHAT ARE THE PENALTIES FOR UNLAWFUL POSSESSION OF FIREARM IN TEXAS?
A person charged with unlawful possession of a firearm may be eligible for probation after a conviction, or deferred adjudication without a conviction. The period of community supervision for a Class A misdemeanor may not exceed two years. For a third degree felony unlawful possession of a firearm, the community supervision term may not exceed ten years.
WHAT ARE THE DEFENSES TO UNLAWFUL POSSESSION OF FIREARM IN TEXAS?
Texas Penal Code Section 46.15 dictates the law prohibiting members of a criminal street gang from carrying weapons does not apply in certain circumstances. For example, members of a criminal street gang may not be prosecuted for unlawfully possessing a firearm if the person holds an alcoholic beverage permit or license and is supervising the premises, is traveling, or is a student of a law enforcement class.
- Are guns and other weapons prohibited inside the airport in Texas? Yes, but the law creates defenses, which may be raised and proved at a person’s trial for possessing a prohibited weapon in a secured area of an airport. The statute gives LTC holders a defense if they exit the screening checkpoint immediately upon being notified of the handgun in their possession, and prohibits police from arresting them prior to giving them the opportunity to exit the area. Additional defenses are available for:
- travelers who check all firearms as baggage prior to entering the secured area, or were authorized by a federal agency or airport operator to carry a firearm;
- security officers, members of the armed forces or national guard, or guards employed by a penal institution who openly carry a firearm or club while traveling to or from their place of assignment, or discharging duties, and are in uniform;
- security officers with personal protection authorization, who either openly carry a firearm while in uniform, or concealed carry a firearm if not in uniform.
- Is the Texas defense of necessity available in an unlawful possession of a firearm prosecution? Yes. Texas Penal Code Section 9.22 applies when a person reasonably believed his conduct was immediately necessary to avoid imminent harm, and the desirability and urgency of avoiding the harm clearly outweighed the harm sought to be prevented by the law proscribing the conduct.In Miller v. State, the defendant was a convicted felon who evaded police in a vehicle, and was ultimately caught wearing body armor, and carrying a gun. He argued at trial possessing a gun and body armor were necessary because he was working as an informant, and thought the police were working for the cartel and were trying to kill him on behalf of the cartel.
The jury found him guilty of unlawful possession of a firearm and body armor by a felon, and the appellate court affirmed. The jury rationally rejected his necessity defense.
WHAT IS THE STATUTE OF LIMITATIONS FOR UNLAWFUL POSSESSION OF FIREARM IN TEXAS?
The limitation period for unlawful possession of a firearm categorized as a Class A misdemeanor is two years. For felony unlawful possession of a firearm, the limitation period is three years.
UNLAWFUL POSSESSION OF FIREARM IN TEXAS
Texas law prohibits a person convicted of a felony from possessing a firearm outside the person’s home for the rest of the convicted felon’s life. After five years from the felon’s release from confinement or community supervision, a convicted felon may possess a firearm in her or her home.
Anyone convicted of a family violence offense may not possess a firearm within the five-year period after the person’s release from confinement or community supervision. A member of a criminal street gang may not possess a firearm in his or her vehicle. A person subject to a protective order may not possess a firearm while the protective order is active.
TEXAS UNLAWFUL POSSESSION OF FIREARM COURT CASES
The case law regarding unlawful possession of firearm in Texas explains the application of the statute.
- In Kiser v. State, the defendant was caught on surveillance opening the victim’s car door, and taking something out of the center console. The victim realized his gun was missing from the center console, and the defendant was later identified and arrested. He was a convicted felon, and the jury found him guilty of unlawful possession of a firearm by a felon. He argued on appeal he was not in possession of the gun when he was arrested, but the appellate court affirmed. He was seen on video taking it out of the victim’s car, thus being in possession.
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DRIVING WHILE INTOXICATED .15
Driving facts involved failing to maintain a single lane and speeding. Client refused breath test and forced law enforcement to obtain search warrant for blood. Blood test result was not used after challenge from Defense, and State waived and abandoned charge.
DRIVING UNDER THE INFLUENCE
Client was a college student, worried about the collateral consequences of an alcohol offense. After negotiation and review of the traffic stop, the case was dismissed. Client received no criminal conviction. The charge was later expunged and deleted from client’s record.
DRIVING WHILE INTOXICATED .15+
Client was involved in minor accident. Client was at fault in accident. A young executive, client was concerned that a criminal conviction for DWI would result in termination. After review of the traffic stop, it was clear the officer lacked probable cause for arrest. State eventually dismissed DWI charge. Client received no criminal conviction.
Client, a military veteran, was facing up to one year in jail. State could not prove intoxication by alcohol, and was prepared to proceed on loss of use by marijuana. After challenging the State to prove that marijuana was ingested at or near time of driving, and that marijuana impaired client’s driving, the State dismissed the case on the day of trial.
DRIVING UNDER THE INFLUENCE
Driving facts involved a false claim by police that taillight was out. After challenging the reasonable suspicion for the traffic stop, the State was forced to dismiss the case when video did not match police report. Client has since expunged arrest, and has no criminal record.
DRIVING UNDER THE INFLUENCE
Client is a public school teacher and faced immediate termination upon conviction. The facts of the case were bad. State was unwilling to budge in negotiation, and matter was set for trial – the last shot at avoiding a conviction and preserving client’s livelihood. State was forced to dismiss on day of trial. Client has no criminal record, and has since expunged the DWI arrest.
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