Possession Of A Firearm By A Convicted Felon

Despite being known for relatively open gun laws, Texas does have restrictions on who may own and possess a firearm. Generally, a convicted felon cannot own nor possess a firearm. However, there is a small exception where Texas law permits a felon to possess a firearm in the confines of his property. Specifically, Texas Penal Code § 46.04 prohibits any convicted felon from possession of a firearm:

  • 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
  • Before the fifth anniversary of the person’s release from confinement or probation, at any location other than the premises at which the person lives.

In simple terms, a convicted felon must wait a period of five (5) years before possessing a firearm, and that possession will be limited to their place of residence.

Houston Possession of a Firearm by a Convicted Felon

Texas takes quite seriously the possession of firearms by convicted felons. If you have been accused of this crime, criminal defense attorney Brian Benken at The Benken Law Firm will be able to identify vulnerabilities in the prosecution’s case and give you the best defense possible.

Brian Benken represents clients in every area throughout Harris County such as Downtown Houston, Sunnyside, Braeswood Place, West University Place and many others in the surrounding area. Call (713) 223 - 4051 to schedule a free consultation today.

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Penalties Associated With Wrongful Possession Of A Firearm By A Convicted Felon

Under Texas law, wrongful possession of a firearm by a convicted felon is a third-degree felony. Third-degree felonies are punishable by up to ten (10) years in prison and/or a fine of up to $10,000.00.

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Elements To Wrongful Possession Of A Firearm By A Felon

Before any arrest or conviction of wrongful possession of a firearm, the prosecution must prove:

  • That the individual was the owner of the firearm in question or was in possession of the firearm at the time of the arrest;
  • Five years have not passed since the person’s last felony sentence; and
  • That the individual was in voluntary possession of the firearm in question.

If any of these elements are not met, the individual may be able to rebut the prosecution’s case. As such, it is important that individuals facing charges for wrongful possession of a firearm hire a local defense attorney who has experience in wrongful possession cases.

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What Is The Catch?

Although Texas Penal Code § 46.04 allows for the possession of a firearm by a felon in specific circumstances, federal law does not. Under federal law, a convicted felon can never possess a firearm, whether that be at the supermarket or in their place of residence. 18 U.S.C. § 922 expressly states that anyone convicted of a felony is prohibited from transporting, possessing, shipping, or receiving a firearm or ammunition.

Therefore, anyone charged with the federal crime of wrongful possession of a firearm is facing significant charges with hefty penalties. It is paramount that anyone facing these charges contact a local defense attorney specializing in criminal defense who can explain the charges being presented and offer a game plan to combat the prosecution’s case.

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Federal Penalties Associated With Wrongful Possession Of A Firearm By A Convicted Felon

Federal convictions may be punishable by imprisonment of up to ten (10) years and/or a fine of up to $250,000.00.

The Armed Career Criminal Act (ACCA) is a federal law that enhances sentences for felons who have been repeatedly convicted of felonies. 18 U.S.C. § 924(e) requires the imposition of a mandatory fifteen (15) year imprisonment for anyone who has three or more convictions for violent crimes.

It is important to note that if a person has been restored of their rights, federal law will not apply.

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Restrictions Against Domestic Violence Offenders

Although not a felony, there are instances where someone convicted of a misdemeanor may lose his right to possess a firearm. In fact, Texas Penal Code § 46.04(b) states that any person who has been convicted of assault against a family member or within someone in the household wrongfully possesses a firearm if the possession occurs before the fifth anniversary of the later of:

  • The date of the person’s release from confinement; or
  • The date of the person’s release from community supervision.

Further, another nuance in the law is regarding people subject to protective and restraining orders. If an individual is subject to restrictions brought about by a valid restraining or protective order, the court may order the forfeiture of any firearm.

If an individual is found guilty of firearm possession under this section, they will be charged with a Class A Misdemeanor and will likely be subject to imprisonment for up to one (1) year and/or be fined up to $4,000.00.

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Aggravated Consequences For Habitual Felony Offenders

Texas Penal Code § 12.42 provides for significant consequences for individuals who are habitual felony offenders. Habitual felony offenders are those individuals who have previously been convicted of a felony. If an individual is deemed a habitual offender and found guilty of wrongful possession of a firearm, the prosecutor may seek imprisonment of up to twenty (20) years and/or a fine of up to $10,000.00.

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Defenses To Wrongful Possession Of A Firearm

To be convicted of wrongful possession of a firearm, the state has the burden of proving each element of the crime beyond a reasonable doubt. Therefore, they must prove that the individual knowingly and intentionally possessed a firearm. Under the Texas Penal Code § 1.07(a)(39), possession is defined as actual care, custody, control, or management.

One method of combatting a wrongful possession claim is by proving that the individual did not possess the weapon. Someone cannot knowingly and intentionally possess a firearm if they lack knowledge or control of the location of the weapon.

Another defense to combat a wrongful possession claim is the defense of necessity. This defense applies when possessing the firearm was necessary to save the individual or another person from serious bodily harm.

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Additional Resources

Texas Penal Code Chapter 46 Section 04 – The Texas penal code provides the relevant law and penalties associated with specific crimes, including wrongful possession of a firearm.

Gun Safety – Texas Gun Sense is a nonprofit organization that provides resources on gun safety and lobbies to advance public policy and raise public awareness.

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Houston Possession of a Firearm by a Convicted Felon Lawyer | Harris County, TX

Firearm offenses carry steep penalties in the state of Texas such as years of imprisonment and significant fines. If you have been arrested for possession of a firearm by a convicted felon, do not take your charges lightly and contact a skilled defense attorney. At The Benken Law Firm, we intend to protect your innocence, and secure the best possible results in your case.

To have The Benken Law Firm discuss the details of your case over a free consultation, call (713) 223 - 4051.  The Benken Law Firm defends clients of firearm smuggling in Harris County and surrounding counties. Some of these communities include Houston, Tomball, Spring, Hunters Creek Village, River Oaks and many more.

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