Unlawful Possession of a Firearm in Texas

Texas does not restore firearm rights on a fixed date the way many people assume, and the rule that applies after five years is the part most often missed. This guide sets out what Penal Code §46.04 actually says, subsection by subsection, and where federal law continues to apply after the Texas period ends. It is part of our guide to Dallas weapons charges. Peter M. Barrett has been licensed in Texas since 1994 and has tried more than 150 jury trials.

The five year window, and when it starts

Section 46.04(a) applies to a person who has been convicted of a felony. It creates an offence if that person possesses a firearm:

• §46.04(a)(1): after conviction and before the fifth anniversary of release from confinement following conviction of the felony, or release from supervision under community supervision, parole or mandatory supervision, whichever date is later; or
• §46.04(a)(2): after that period, at any location other than the premises at which the person lives.

The phrase "whichever date is later" decides most cases. Someone who served a short sentence and then a long period of parole does not start the clock at release from prison. The clock starts when supervision ends. For a straight community supervision case with no confinement, it runs from the end of supervision.

Note what the statute does not say. It does not say rights are restored after five years. It says that after five years the offence is limited to possession somewhere other than where you live.

The home-only rule after five years

Subsection (a)(2) is the provision that surprises people. Once the five years have passed, possession at "the premises at which the person lives" is outside the offence. Possession anywhere else is still an offence under Texas law.

That means carrying in a vehicle, at work, at a relative's house, in a hunting camp or on a range remains chargeable under §46.04(a)(2) however long ago the felony was. The statute draws the line at the place of residence, not at a period of good behaviour.

Family violence: a separate five year bar

A conviction does not have to be a felony to trigger a firearm bar. Under §46.04(b), a person convicted of an offence under Penal Code §22.01 that is punishable as a Class A misdemeanor, and that involved a member of the person's family or household, commits an offence by possessing a firearm before the fifth anniversary of the later of release from confinement, or release from community supervision, following that conviction.

"Family", "household" and "member of a household" take their meanings from Chapter 71 of the Family Code (§46.04(d)). This is the subsection that catches a misdemeanor family violence plea years later, and it is one reason the firearm consequence belongs in the plea discussion rather than after it.

While a protective order is in force

Under §46.04(c), a person subject to an order issued under Family Code §6.504 or Chapter 85, under Article 17.292 or Subchapter A of Chapter 7B of the Code of Criminal Procedure, or by another jurisdiction as provided by Chapter 88 of the Family Code, commits an offence by possessing a firearm after receiving notice of the order and before the order expires.

Two details matter. The offence requires notice of the order, and it runs only for the life of the order. The subsection excludes a peace officer, as defined by Penal Code §1.07, who is actively engaged in employment as a sworn, full-time paid employee of a state agency or political subdivision. See also violating a protective order in Texas.

Criminal street gang members and handguns in vehicles

Subsection (a-1) is narrower and often overlooked. A member of a criminal street gang, as defined by Penal Code §71.01, commits an offence by intentionally, knowingly or recklessly carrying a handgun on or about his or her person in a motor vehicle or watercraft. No prior conviction is required for this subsection.

What counts as a felony for this section

Section 46.04(f) reaches beyond Texas convictions. An offence under the laws of Texas, another state or the United States is a felony for this purpose if, at the time it was committed, it was designated a felony by Texas law, contained all the elements of an offence designated a felony by Texas law, or was punishable by confinement for one year or more in a penitentiary.

Subsection (g) narrows that back. An offence is not a felony for §46.04(f) purposes if, at the time the person possesses the firearm, it is not designated a felony by Texas law and does not contain all the elements of any offence designated a felony by Texas law. In other words, a conviction that would no longer be a Texas felony today can fall outside the section.

Punishment

Section 46.04(e) sets the grades. An offence under subsection (a) is a felony of the third degree. An offence under subsection (a-1), (b) or (c) is a Class A misdemeanor.

The federal overlap, where the Texas clock does not help

This is the single most consequential point on the page. Texas sets five year windows. Federal law does not.

18 U.S.C. §922(g)(1) makes it unlawful for any person "who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year" to possess a firearm or ammunition in or affecting commerce. There is no five year expiry in that provision, and no home-only exception.

§922(g)(9) does the same for a person "convicted in any court of a misdemeanor crime of domestic violence". Again, no five year window, so the Texas bar under §46.04(b) can lapse while the federal one continues.

§922(g)(8) covers a person subject to a qualifying court order that was issued after a hearing of which the person had actual notice and an opportunity to participate, that restrains harassing, stalking or threatening an intimate partner or that partner's child, and that either includes a finding of a credible threat to physical safety or explicitly prohibits the use, attempted use or threatened use of physical force.

So a person five years past a Texas felony, keeping a firearm at home, may be outside §46.04(a) and still inside §922(g)(1). For how federal firearm cases are charged, see three firearms violations that are federal crimes.

What actually changes the answer

Because the Texas period does not restore anything and the federal prohibition does not expire, the route to lawful possession runs through the conviction itself rather than the calendar. Relief such as an expunction or an order of nondisclosure, a pardon, or a successful appeal changes the underlying record. A sealed or set-aside record is a different legal position from an old one.

Which relief is available depends entirely on how the case ended. See expunction compared with nondisclosure and Dallas expunction and sealing. Where a DWI is the conviction in question, whether a DWI stops you owning a firearm turns on whether the offence was a felony.

Frequently asked questions

This guide is general legal information about Texas law, not legal advice about your case. Reading it does not create an attorney-client relationship. Laws change, so confirm the current rule with a licensed Texas criminal defense attorney about your specific facts. Request a free, confidential case review.