Lots of folks in Texas have questions regarding the possession and carrying of handguns after they have completed a deferred adjudication probation.
This is a confusing area and I received an email inquiry regarding this today. Here's the question, which I will unpack and answer in the rest of this post:
I had a drug charge back in 2010 “felony” I was placed on deferred adjudication probation. I successfully completed it. I understand you have to wait 5 years after completing the probation to file a non-disclosure. [date removed] is when I will eligible for a non disclosure or seal. Is it possible If I can file a early non disclosure or do I have to wait till I hit my 5 year mark? The reason why I'm asking is because I want to be able to rent. Also why am I able to purchase a firearm handgun but I can't rent that doesn't make any sense? Another question, when I do file a non disclosure would I be able to purchase a CHL license to carry my firearm?
You can understand why a person would be confused about these issues:
- Successfully completed "deferred adjudication" which means he hasn't been convicted and the case has been dismissed;
- But still being discriminated against for housing;
- Also wants to get a concealed handgun license (CHL) to stay legal and ensure he is following the law;
- Wants to get an order of non-disclosure which will theoretically "seal" his arrest record;
- Wonders if he can get an early non-disclosure without waiting 5 years;
- Wonders if the non-disclosure will enable him to get a CHL which he might not be otherwise entitled to.
Whew! There's a lot going on in that question. Let's answer those questions and see how I can help.
First, some straightforward answers to the legal questions he is asking:
- There is no way to get out from under the 5 year waiting period, it is a statutory requirement.
- The Texas handgun license is now called a "License to Carry" (LTC) rather than a "CHL"
- Client won't be able to get a LTC until 10 years after the date he went on deferred.
- The handgun license statute says that orders of deferred adjudication less than 10 years old are "convictions".
- An order sealing deferred adjudication will not seal it from the LTC licensing board or other government agencies.
The reality of the situation is somewhat more nuanced than the "straightforward" answers above:
In Texas it is not illegal to possess a handgun in your home or vehicle as long as you comply with the statute and you aren't breaking any other laws. Unless a person is prohibited from possessing a firearm, the "Unlawful Carrying Weapon" or UCW statute says it is illegal to carry a handgun on your person in only certain specific circumstances:
- Not on person's own premises or premises under that person's control (for example, at home or the ranch)
- Not inside of or directly en route to the person's car or boat
So what this means is that you can't just walk around with a handgun unless you have a carry license.
BUT an unlicensed person CAN still carry a handgun if he's at home or the ranch,
or if he is carrying it in his car or boat UNLESS one or more of the following conditions apply:
- The gun is in plain view (you have to put it away while it's in the car),
- The person is engaged in some other criminal activity other than a class "C" traffic offense (guns and crime probably shouldn't mix), and
- The person is not otherwise prohibited by law from possessing firearms, and is not a member of a criminal street gang (no incompetent people, drug addicts, convicted felons or gang members).
The reason why a person who has successfully completed deferred adjudication for a felony offense can purchase a firearm is that person has not been convicted and is no longer "under indictment" for the felony offense. While a person is on deferred probation he is "under indictment" and federal law prohibits him from having or obtaining the firearm.
As far as being able to rent, that is simply a matter of the landlord wanting to screen possible troublemakers and unfortunately he'll have to wait until he can seal his record.
Here are the bottom line answers, and when I can help him obtain a court-ordered nondisclosure:
- Client can get a nondisclosure 5 years after probation has finished, but not sooner,
- Client can get a LTC 10 years after probation order entered (may mean at the start of probation),
- Client can in the meantime possess a handgun at home, his ranch, his car and his boat without a license, as long as he follows the law as outlined above.
2019 Addendum: What about possessing firearms after a family violence deferred adjudication?
In response to several comments to this blog posting, I reached out to an Assistant United States Attorney yesterday and asked him whether a family violence assault deferred adjudication would bar a person from possessing a firearm under federal law. He said that his understanding is that he cannot charge a person unless they have a final conviction for a family violence case, which would not include deferred adjudication. So here are the rules regarding family violence cases:
- Texas law: No firearms while on deferred adjudication, misdemeanor or felony.
- Federal law: No firearms while "under indictment" for any felony charge including family violence.
- State and federal: Firearms OK to possess after successful completion of deferred adjudication, but not after regular probation or final conviction for family violence offense.
The former confusion about whether there is a federal bar on firearm possession for completed deferred adjudication on family violence cases stems from the Texas statute defining "conviction" for purposes of enhancing a new family violence charge. This definition of "conviction" includes successfully completed deferred adjudication for family violence cases.
The Texas assault statute, Penal Code Chapter 22.01, says that a previous deferred adjudication vs family member is a “conviction” even if not ever adjudicated:
(f) For the purposes of Subsections (b)(2)(A) and (b-2)(2):
(1) a defendant has been previously convicted of an offense listed in those subsections committed against a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code, if the defendant was adjudged guilty of the offense or entered a plea of guilty or nolo contendere in return for a grant of deferred adjudication, regardless of whether the sentence for the offense was ever imposed or whether the sentence was probated and the defendant was subsequently discharged from community supervision;