Losing Your Guns: Collateral Consequences
by Kevin B. Ross
A person charged with a criminal offense will often ask about the potential consequences they face. Will they go to prison or jail? Are they eligible for probation? What type of conditions of probation would be imposed? What will the fines and court costs be? But they tend to overlook the collateral consequences they face if they are convicted or receive deferred adjudication probation or ordinary probation for certain types of criminal offenses.
One potential collateral consequence for certain criminal convictions is the loss of the right to possess firearms. People have and use guns for a variety of reasons, but three of the most common reasons are: (1) recreation (i.e., hunting and target shooting); (2) protection (i.e., in the home or on their person); and (3) collection (i.e. antique guns, rare guns, family heirlooms, etc.). But when can they lose their right to possess a firearm and can the right ever be restored?
At both the state and federal levels, certain criminal convictions can affect the right of a person to possess firearms. In Texas, a person convicted of any felony offense may not possess a firearm for five years after release from confinement, community supervision or parole, whichever is later. Texas Penal Code § 46.04(a). Moreover, a person convicted of an offense under section 22.01 of the Texas Penal Code (Assault–Family Violence), punishable as a Class A misdemeanor and involving a member of the person’s family or household, may not legally possess a firearm before the fifth anniversary of the later of the date of the person’s release from confinement or community supervision. TPC §46.04(b).
Federal laws are also important to understand. Under 18 U.S.C. § 922(g)(1), no person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year may possess, ship, receive, or transport a firearm or ammunition. A sentence exceeding one year imprisonment is classified as a felony. Therefore, under federal law, it is unlawful for a person convicted of any felony offense, at any time, to possess a firearm.
Another statute, 18 U.S.C. § 922(g)(9), also makes it a federal offense for a person to possess, ship, receive or transport a firearm or ammunition if the person has been convicted in any court of a misdemeanor crime of domestic violence. Thus, a person simply possessing a firearm, if convicted of a Class C misdemeanor assault involving domestic violence, would be committing a federal crime.
Federal law, 18 U.S.C. § 922(n), makes it unlawful for a person to ship, transport or receive any firearm or ammunition while under indictment for a crime punishable by imprisonment exceeding one year. This is significant because a person placed on felony deferred adjudication under Texas Code of Criminal Procedure art. 42.12 §5 is still technically under a pending indictment.
Can a person who has been convicted of a felony offense ever have their right to possess a firearm restored? That’s a tricky question. If a person is convicted and serves prison time, then for federal law purposes, they would always be considered a felon, even if state law allowed them to possess a firearm after the prescribed five-year period in TPC § 46.04. The state laws, in that situation, do not trump the federal law.
On the other hand, if a person was convicted of a felony and placed on community supervision, their right to possess firearms could be restored if the convicting court entered an order discharging the person from community supervision and specifically set forth in the order that the verdict is set aside or the guilty plea is withdrawn, dismisses the indictment and specifically releases the person from all penalties and disabilities resulting from the offense or crime of which the defendant was convicted or to which the defendant pleaded guilty. Tex. Code Crim. Proc. Art. 42.12 § 20. If the order does not specifically recite this statutory language, then the person would still run afoul of federal law. See U.S. v. Sauseda, 2001 WL 694490 (W.D. Tex., Jan. 10, 2001); cf. Cuellar v. State, 40 S.W.3d 724 (Tex. App. -- San Antonio, 2001); 18 U.S.C. § 921(a)(20). The other alternative is for the person to receive a pardon; those, however, are very hard to come by.
In summary, if a person has firearms and has been convicted of a felony offense or a misdemeanor offense involving domestic violence, they must be made aware of both the federal and state statutes regarding their ability to possess a firearm so they do not put themselves in further jeopardy of committing a new criminal offense.
Kevin B. Ross is a partner at Sorrels, Udashen & Anton. His practice focuses exclusively on State and Federal criminal offenses at both the trial and appellate level. He can be reached at email@example.com.