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Unlawfully Possessing Firearm

Prosecutors, police and judges in Williamson and Travis counties place strong emphasis of people charged with Unlawfully Possessing a Firearm.  This offense is a gun crime that applies to certain categories of people who are prohibited under Texas state law from possessing firearms. Unlawfully possessing a firearm in Texas is a serious charge that can carry prison or jail time.  Prosecutors take these cases seriously as they want to protect their constituents from people they perceive to be a higher threat to the community: convicted felons, and perpetrators of family violence.  A strong, effective criminal defense attorney like Russ will thoroughly examine all possible defenses available to a client charge with unlawful possession in order to help combat a wrongful conviction or imprisonment.

The categories of prohibited people include:

  • Convicted felons,
  • Persons convicted of family violence assault, or
  • Persons who are covered under a family violence protective order.

Federal law also prohibits firearm possession by similar categories of people including felons, and also drug addicts and others.


Does Texas Law Ever Allow Prohibited Persons to Possess Firearms?

The law in Texas allows convicted felons to possess firearms at the person's own home, under limited circumstances: once five years have elapsed after the later of either the person's release from confinement, parole, or probation.  The law also allows people with family violence convictions to possess firearms once five years have passed after the later date of when the person was released from jail or probation.

What is the Law in Texas on Unlawful Possession of a Firearm?

The law concerning Unlawful Possession of a Firearm is found in Texas Penal Code Section 46.04:

(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.
(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, as defined by Section 1.07, 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 Chapter 7A, 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.

What is defined as a "firearm" in Texas?

Texas Penal Code Section 46.01(3) defines what the law recognizes to be a firearm:

“Firearm” means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use. Firearm does not include a firearm that may have, as an integral part, a folding knife blade or other characteristics of weapons made illegal by this chapter and that is: (A) an antique or curio firearm manufactured before 1899; or (B) a replica of an antique or curio firearm manufactured before 1899, but only if the replica does not use rim fire or center fire ammunition.

What else is a felon prohibited from possessing by Texas law?

Texas Penal Code Section 46.041 prohibits convicted felons from possessing metal or body armor.  This statute has no five-year limitation like the UPF statute: a convicted felon can never possess metal or body armor. 

What are some defenses to unlawful possession cases?

The defenses to unlawful possession of firearms or armor are the same as possession of anything else that is prohibited like drugs.  Was the prohibited person in  personal possession of the item?  Was the item hidden away in a container or in plain view?  Was the gun placed somewhere with other identifying items that tie back to the prohibited person?  Did other people have access to the place where the weapon was found?  Do any other witnesses put the firearm in the prohibited person's possession?  The answers to these and other questions will determine whether the State can prove an unlawful possession case.

Another informal defense to unlawful possession cases is for what purpose was the firearm being possessed?  Especially in some more rural jurisdictions, if a person was out hunting with his buddies, the defense attorney will have an argument that the DA should cut him some slack.  If the firearm was being used in legitimate self defense, this may raise a necessity defense.  On the other hand, if the firearm was being used in a threatening manner or to commit some other crime, this will weaken the defense to the possession charge. The facts of the individual case will determine whether the defense attorney can convince a prosecutor to let go of a gun charge.

Prosecutors throughout Texas place strong emphasis on prosecuting people charged with unlawful possession of firearms.  Whether they are convicted felons or persons with family violence convictions, prosecutors do not want to run the risk of allowing a prohibited person to run around with a deadly weapon like a firearm.  If a person has been to prison before, it is not unusual for the DA to seek prison time for unlawful possession cases.  It is very important to hire an attorney that is well versed in the particular jurisdiction to help avoid the conviction and any possible prison time that goes along with it.

What is the penalty for an Unlawful Possession of a Firearm conviction?

This offenses of felons possessing metal or body armor under 46.041 and possessing firearms are third degree felonies, but violations of the family violence and protective order firearm possession subsections are only a Class A Misdemeanors.

What is the Federal law on unlawfully possessing firearms?

 Federal laws are much more expansive in terms of prohibiting classes of persons possessing firearms than Texas laws.  For instance that even though Texas law does not prohibit a convicted felon from possessing a firearm in his own home after five years,  it is still a federal law violation.  While federal law enforcement generally limits the cases they take to the most egregious violations, there are no guarantees that a prohibited person not charged in state court will escape the notice of the feds.

You Are Not Alone

Criminal charges bring some of the toughest stress you'll ever deal with. In difficult times--and especially against the tough state and federal prosecutors in Williamson and Travis counties--you'll need an aggressive and determined advocate by your side. An accessible and dedicated ally, Russ tirelessly fights for your best possible outcome.

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310 South Austin Avenue
Georgetown, TX 78626
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902 East 5th Street , Suite 108
Austin, TX 78702
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