What is Unlawful Possession of a Firearm by a Felon?
Unlawful possession of a firearm by a felon or “UPF” occurs when a person who has committed a felony or an assault-family violence offense in the last five years possesses a firearm. Unlawful possession of a firearm also occurs when felon possesses a firearm outside their home after the fifth anniversary of the end of their sentence (probated or otherwise).
In other words, under Texas law, a felon may not possess a firearm in the first five years after they’ve been convicted of a felony. At the end of the five years, the felon may only possess a firearm within his residence. However, it’s important to point out that, under federal law, felons are prohibited from ever possessing a firearm. See Felon in Possession of Firearm.
Note that UPF is a distinct offense from UCW or other airport gun cases.
What is the punishment for Unlawful Possession of a Firearm?
If the possession is by a felon in the first five years after the sentence, the offense is a third degree felony punishable by 2 to 10 years in prison. Other unlawful possession cases are Class A misdemeanors.
Elements of Unlawful Possession of a Firearm in Texas
The prosecution is required to prove: (1) the accused exercised actual care, control, or custody of the firearm; (2) he was conscious of his connection with it; and (3) he possessed the firearm knowingly or intentionally. Cude v. State, 716 S.W.2d 46, 47 (Tex.Crim.App.1986). However, in a prosecution for unlawful possession of firearm, it is not necessary for State to prove weapon operational. Hutchings v. State, 333 S.W.3d 917, 922 (Tex. App. 2011).
What is the mental state requirement for Unlawful Possession of a Firearm in Texas?
The statute does not set forth a mental state requirement. However, the Court of Criminal Appeals has ruled that since the statute does not plainly dispense with the mental state requirement, the state must prove the defendant intentionally, knowingly or recklessly possessed the firearm. See Hazel v. State, 534 S.W.2d 698, 702 (Tex. Crim. App. 1976).
Unlawful Possession of Body Armor by a Felon
Pursuant to Penal Code Section 46.041, it is a third-degree felony for a someone convicted of a felony to subsequently possess metal or body armor.
Felony Convictions in Texas result in the Loss of Second Amendment Rights
If a person is convicted of a felony, he or she may not possess a firearm until the later of:
- five years after being released from parole,
- five years after being released from probation, or
- for five years after a felony conviction.
During that time frame, he or she may not possess a firearm anywhere, including in their own home.
Family Violence Convictions in Texas result in the loss of Second Amendment Rights
After the initial prohibition period has passed, they may possess a firearm in their own home.
Similarly, once a person has been convicted of Assault Causing Bodily Injury Against a Family Member
-for five year’s after being released for the offense
-for five years after completing probation for the offense.
Felons Lose Gun Rights under Federal Law
Under federal law, a felon may not possess, ship, transport, or receive any firearm or ammunition. See 18 USC 922(g).
Setting Aside a Felony Conviction through Executive Clemency or a Pardon
One way to restore federal firearm rights after a state conviction is through a full pardon. Under Code of Criminal Procedure Article 48.01, the Governor has the power to pardon someone after they have been convicted. A pardon restores an individual’s right to bear arms. The Texas Board of Pardons and Paroles may also consider recommending a pardon to restore the right to receive, possess, bear and transport firearms. In order to receive such a recommendation, the application must be accompanied by a letter from an employer or prospective employer that outlines the need to have those rights restored in order to gain or maintain employment. In fact, under Texas Administrative Code Section 143.12, the applicant is required to show “extreme and unusual circumstances” in order to receive a recommendation to have firearm rights restored.
Setting Aside a Felony Conviction After Discharge from Probation
In Cuellar v. State, 70 S.W.3d 815, the Court of Criminal Appeals held that once a conviction has been set aside under Article 42.12 Sec. 20, it releases a person from all penalties and disabilities resulting from the crime of offense. The result of a discharge under Article 42.12 Section 20 is that the conviction “is wiped away, the indictment dismissed, and the person is free to walk away from the courtroom ‘released from all penalties and disabilities’ resulting from the conviction.” In other words, if a felony conviction has been set aside under this section, that person may lawfully possess and transport firearms and ammunition.
Furthermore, once judicial clemency has been granted in Texas under Article 42.12 Section 12, a person’s federal right to possess a firearm is also restored.
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(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.
(d) In this section, “family,” “household,” and “member of a household” have the meanings assigned by Chapter 71, Family Code.
(e) An offense under Subsection (a) is a felony of the third degree. An offense under Subsection (b) or (c) is a Class A misdemeanor.
(f) For the purposes of this section, an offense under the laws of this state, another state, or the United States is, except as provided by Subsection (g), a felony if, at the time it is committed, the offense:
(1) is designated by a law of this state as a felony;
(2) contains all the elements of an offense designated by a law of this state as a felony; or
(3) is punishable by confinement for one year or more in a penitentiary.
(g) An offense is not considered a felony for purposes of Subsection (f) if, at the time the person possesses a firearm, the offense:
(1) is not designated by a law of this state as a felony; and
(2) does not contain all the elements of any offense designated by a law of this state as a felony.