Texas Felon-in-Possession of a Firearm Crimes and Penalties.

The Texas felon-in-possession of a firearm law bans a person with a felony record from having a gun. This state law is similar to 18 U.S.C. § 922(g)(1). For example, if police catch a felon with a gun, then that person may have broken both the state and federal gun laws. Further, both of these laws carry a high risk of jail time. In particular, they both carry up to ten years in jail.

However, these two gun laws are also different. The Texas gun law comes with a five-year time limit. This means a felon cannot have a gun within five years after either completing his jail term or finishing probation. Critically, the time starts counting from the latest of these two dates.

In contrast, the federal gun law does not have a five-year time limit. Notably, the federal gun law has no time limit at all. This In effect bans felons for life from owning a gun. On top of that, these two gun laws are meant to keep guns out of the hands of felons.

But these two laws raise important defense questions. To illustrate, what does “possession” of a gun mean? Also, how do police connect a gun to a felon? This post will answer these questions. We will also show how the Texas gun law works. Finally, we will compare it to the federal gun law–to see how these laws overlap and conflict.

Texas Penal Code § 46.04(a).

Tex. Pen. Code Sec. 46.04Texas Felon In Possession of a Firearm Law.
(a)A person who has been convicted of a felony commits an offense if he possesses a firearm:
(a)(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 is later; or
(a)(2)after the period described by Subdivision (1), at any location other than the premises at which the person lives.
(e)An offense under Subsection (a) is a felony of the third degree.

Texas Felon In Possession of a Firearm Key Elements.

Tex. Pen. Code § 46.04(a) lists the felon-in-possession of a firearm law. It is supposed to stop people with a felony record from having or owning a gun.

Further, the state law comes with a 5-year window. This 5-year window is a hard rule. During this time, the felon cannot have any guns at all. Plus, the time starts running from the date the person gets out jail or finishes his supervision period–whichever date is later.

After the 5 year-time period runs, the law says the person can keep a gun in his home. Nevertheless, Subsection (a)(2) conflicts with the federal gun law. Worse yet, it creates a situation where a felon can follow the Texas gun law, but break the federal gun law.

Notably, the federal felon-in-possession law does not have this time restriction. Under 18 U.S.C. §922(g)(1), a person with a felony record cannot have a firearm. This is true even if the felony conviction is more than 5 years old. Even more important, unlike the Texas law, the federal gun law does not allow a felon to keep a gun in the home.

For these reasons, a person with a felony record cannot own or have a gun. Otherwise, he may get hit with either a Texas or federal gun charge.

What does it mean to “possess” a gun?

Texas Penal Code § 1.07 (39) defines possession. This definition is the linchpin of the Texas Felon-In-Possession gun law. It tells us what the prosecutors must show to convict a person of this crime. And it also provides the defense a chance to push back on a gun charge.

Specifically, to be in possession of a gun requires two things: (1) control; and (2) knowledge. That is to say, the State must show the person knew about the gun and had control over the gun. If both of these facts are present, then the person is in possession of the gun.

Definition of Possession under the Texas Penal Code.

Tex. Pen. CodeDefinition of Possession.
§ 1.07 (39)"Possession" means actual care, custody, control, or management.

How do police connect the gun to a felon?

This is the biggest question in a gun case. In many instances, there is no question the person is a felon. There is also usually no question the weapon is a gun. So this leaves “possession” as the main unresolved fact in the case. In other words, how do police link the gun to the felon?

In some cases the issues will be straight forward. For example, if police find the gun on the person’s waistband or coat pocket, then it will be easy for police to link the gun to the person. In these circumstances, the person may want to consider working something out.

But what if police find the gun in a common area? To explain, what if police find the gun after a traffic stop in a car that has 3 or 4 passengers? Or what if police find the gun in a house that has many residents?

When this happens, police need to show more than the fact the felon was present where the gun was found. Police need extra facts to link him to the gun. This is where the affirmative links doctrine comes into play.

Texas Affirmative Links Doctrine.

Once again, to show someone “possessed” a gun or drugs, police must show two things. First, they must show the person had control over the gun or drugs. Second, they must show the person knew he possessed the gun or drugs. This is the essence of possession.

However, when there are several people present where police find the drugs or guns, then the State needs to be careful not to convict an innocent person:

The affirmative links rule is designed to protect the innocent bystander from conviction based solely upon his fortuitous proximity to someone else’s drugs. This rule simply restates the common-sense notion that a person–such as a father, son, spouse, roommate, or friend–may jointly possess property like a house but not necessarily jointly possess the contraband found in that house.

Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005).

In other words, when police find a gun at a place that has more than one person present, then police need extra facts to show the felon knew about the gun and had control over it. Courts call these extra facts affirmative links.

What are affirmative links in a gun case?

NumberAffirmative Links
1Was the person at the location when police did the search?
2Was the gun in plain view?
3.How close was the person to the gun when it was found?
4.Did the person possess other guns or ammo when he was arrested?
5.Did the person give incriminating statements when he was arrested?
6.Did the person try to run or flee from the crime scene?
7.Did the person make furtive gestures?
8.Were there other guns or ammo at the location or near the person?
9.Did the person own or have a right to possess the place where the gun was found?
10.Was the gun found in an enclosed compartment such as a glove box, gym bag, or briefcase?
11.Did the person show consciousness of guilt?

A word of caution about these links. They are only a tool judges use to see if the facts show the felon possessed the gun. It allows them to break down the possession issue to its simplest terms.

Also, it is not the number of links that are present that matters in a case. It is the force of these links that is critical. For instance, if the only link present is the felon’s statement saying the gun is his, then this will be more than enough to connect him to the gun.

On the other hand, the defense can use these links to show the person did not have a gun. These links are straightforward and a jury can relate to the answers. Finally, the answers to the links questions above can also help a person decide if he wants to fight the case or cut a plea deal.

Don’t forget to Check for Fourth and Fifth amendment Violations.

Gun cases, like drug cases, raise known problems for the State. One of these problems is how police find the gun. Did a traffic stop or a Terry Frisk turn up the gun? If so, did police have a good reason or consent to search for the gun? Also, did police tell the person he could remain silent after they arrested him?

These questions show why the defense should never overlook how police found the gun. If police broke the law by not respecting the person’s rights, then these facts may support a strong motion to suppress. This can cause a judge to kick the case out.

How much jail time can I get for a Texas felon-in-possession of a gun crime?

Texas Felony LevelJail TimeFine Amount
Third Degree FelonyBetween 2 years and 10 years in prison.Up to a $10,000 Fine.

Texas Felon Gun Laws vs Federal Felon Gun Laws.

As we mentioned above, there is a lot of overlap between the Texas and federal gun laws. They both ban felons from having guns. But they also have some key differences. The table below shows how these two guns laws are alike and different.

Tex. Penal Code 46.04(a) vs 18 USC 922(g)(1)

Key PointsTexas Felon-in-Possession of a Firearm Law.Federal Felon-in-Possession of a Firearm Law.
Jail Time.2-10 years in TDC.0-10 years in BOP.
Max Fine.$10,000.$250,000.
Sentencing Guidelines.Do not apply.Apply.
Eligible for Parole.Yes.No. Parole abolished in federal system.

But the person may get "good time" credit under 18 U.S.C. § 3624(b).
Time Limits.Five year limit.No time limit. This results in a lifetime gun ban for felons.

Can a felon own a gun in Texas?

No. At least not while the person is a felon. Under Texas law, a person cannot own a gun within 5 years after getting out of jail or finishing supervision–starting from whatever date is later. But under federal law, a felon can never own a gun.

However, if the person gets his conviction reversed, then he may be able to get his rights restored. But to be safe, do not buy a gun without talking to a criminal defense attorney first if you are a felon. Otherwise, you may be asking for trouble.

San Antonio Gun Crimes Attorney.

Texas gun laws are as strict as the federal gun laws. Texas gun laws also overlap with federal gun laws in important ways. The main point is that both laws require the government to show the felon had knowledge and control of the gun. If they cannot show these two things, then the person is not guilty of being a felon-in-possession of a firearm in Texas.

Law Office of Genaro R. Cortez, P.L.L.C.

730 West Hildebrand Avenue
Suite 2,
San Antonio, Texas 78212
Phone: 210-733-7575
Fax: 210-733-7578
Email: genaro.cortez@cortezlawyer.org