Gun rights can be very complicated for people who have been convicted of felony offenses in Texas, as individuals who are lawfully able to possess firearms in their residences in Texas five years after discharge of sentences are still prohibited under federal law from possessing a firearm. Convictions can be severe for both state and federal charges relating to possession of a firearm by a convicted felon.
It is generally wisest for a person to ensure their firearm rights have been restored through the Texas Board of Pardons and Paroles. Without proper authorization, a possession of a firearm by a convicted felon can create a number of immediate problems for an alleged offender as they could be facing several years in prison and thousands of dollars in fines.
Were you arrested for an alleged possession of a firearm by a convicted felon offense in Lewisville, Denton, Flower Mound, or a surrounding area of Denton County? It will be important for you to find a criminal defense attorney as soon as you possibly can.
The Law Offices of Richard C. McConathy has a wealth of experience in all kinds of gun rights cases and we will be able to help you fight your criminal charges. Call (940) 222-8004 or contact us online to have our firm take a closer look at your case and discuss all of your legal options with you during a free consultation.
Under Texas Penal Code § 46.04(a), a person who has been convicted of a felony commits an unlawful possession of a firearm offense if they possess a firearm after conviction and before the fifth anniversary of their release from confinement following conviction of the felony or their release from supervision under community supervision, parole, or mandatory supervision, whichever date is later, or after the same period at any location other than the premises at which the person lives. This crime is a third-degree felony.
Texas Penal Code § 46.04(b) establishes that a person who has been convicted of Class A misdemeanor assault involving a member of the person's family or household commits an offense if they possess a firearm before the fifth anniversary of the later of the date of their release from confinement following conviction of the misdemeanor or the date of their release from community supervision following conviction of the misdemeanor. An offense is a Class A misdemeanor.
Under Texas Penal Code § 46.04(f), an offense under the laws of this state, another state, or the United States is a felony if, at the time it is committed, the offense:
● is designated by a law of this state as a felony;
● contains all the elements of an offense designated by a law of this state as a felony; or
● is punishable by confinement for one year or more in a penitentiary.
An offense is not considered a felony if, at the time the person possesses a firearm, the offense was not designated by a law of this state as a felony and does not contain all the elements of any offense designated by a law of this state as a felony.
Unlawful possession of a firearm crimes are punishable as follows:
● Class A Misdemeanor — Up to one year in jail and/or a fine of up to $4,000
● Third-Degree Felony — Up to 10 years in prison and/or a fine of up to $10,000
Texas Penal Code § 12.42 stipulates aggravated consequences can be imposed for individuals deemed habitual felony offenders. If an alleged offender has been previously convicted of a felony other than a state jail felony, they can be punished for a second-degree felony, which can be a sentence of up to 20 years in prison and/or a fine of up to $10,000 if convicted for unlawful possession of a firearm.
The Texas Department of Public Safety (DPS) reported 12,188 arrests for weapon violations in 2019. The number of arrests was a 12.2 percent decrease in comparison with 2018, and the 2019 weapons arrest rate of 42.0 percent arrests for every 100,000 persons was a decrease of 12.2 percent from 2018.
18 U.S.C. § 922(g)(1) is the federal law prohibiting any person convicted of a crime punishable by more than one year of imprisonment. Under 18 U.S.C. § 922(g), certain persons are prohibited from shipping, transporting, possessing, or receiving a firearm or ammunition while subject to a prohibition from doing so, most commonly because of a prior conviction for a felony offense.
Federal law will not apply to a person whose gun rights have been restored by the state.
Federal convictions are punishable by up to 10 years in prison and a fine of up to $250,000. If an alleged offender has three or more prior convictions for felony crimes of violence or drug trafficking felonies, the Armed Career Criminal Act (ACCA) mandates a minimum sentence of 15 years in prison.
The United States Sentencing Commission (USSC) reported 7,647 cases involving convictions under 18 U.S.C. § 922(g) in fiscal year 2019. The Northern District of Texas was one of the top five districts for felon in possession of a firearm offenders.
According to the USSC, the average sentence for a 18 U.S.C. § 922(g)(1) violation was 64 months in fiscal year 2019, which was a decrease from 72 months in fiscal year 2015. The average guideline minimum was 71 months in fiscal year 2019, down from 81 months in fiscal year 2015.
The USSC reported that the average sentence for all felon in possession of a firearm offenders was 64 months. The average sentence for offenders convicted of violating only section 922(g) and under ACCA was 188 months, while the average sentence for offenders convicted of violating only section 922(g) but not sentenced under ACCA was 58 months.
According to the USSC, 97.7 percent of felon in possession of a firearm offenders were men. Of the offenders, 55.4 percent were Black, 24.8 percent were white, 17.1 percent were Hispanic, and 2.7 percent were other races. The average age of an offender was 34 years.
The USSC reported that 97.4 percent of felon in possession of a firearm offenders were sentenced to prison, although sentences varied widely by whether a mandatory minimum penalty applied in the case. There were 15.6 percent of felon in possession of a firearm offenders convicted of one or more statutes with a mandatory minimum penalty that included:
● 4.0 percent were sentenced under 18 U.S.C. § 924(e), the Armed Career Criminal Act (ACCA);
● 6.0 percent were convicted of violating 18 U.S.C. § 924(c);
● 5.6 percent were convicted of another statute carrying a mandatory minimum penalty, most of which were drug offenses.
According to the USSC, 65.5 percent of felon in possession of a firearm offenders were sentenced under the Guidelines Manual. Of those offenders, 82.8 percent were sentenced within the guideline range, 10.5 percent received a substantial assistance departure with the average sentence reduction being 44.3 percent, and 5.6 percent received some other downward departure for which the average sentence reduction was 34.9 percent.
Another 34.6 percent received a variance. Of those offenders, 89.7 percent received a below range variance with an average sentence reduction of 34.3 percent, and 10.3 percent received an above range variance with an average sentence increase of 52.4 percent.
Can a felon legally have a gun in Texas? — View a November 14, 2017, KHOU-TV article about firearm rights. According to KHOU, a person with a felony conviction could possess a firearm on the premises where they live, five years after the disposition of their conviction. Federal law, however, does not allow for a convicted felon to possess a firearm under any circumstances according to KHOU, unless they have been pardoned.
Felons & Firearms | Gun Laws | Guides at Texas State Law Library — View state and federal firearm rights laws on this website. You can also find a section of articles explained in plain English. There are also links provided for parties to contact about firearm rights.
If you were arrested for a possession of a firearm by a convicted felon offense anywhere in Denton County, you will need to get legal representation for yourself without delay. Make sure your first call is to The Law Offices of Richard C. McConathy.
Our firm has handled many different kinds of alleged firearm violations and we can work to ensure that you are able to avoid many of the costliest penalties associated with a conviction. You can have us review your case and talk to you about what can be done when you call (940) 222-8004 or contact us online to set up a free consultation.