What Is Unlawful Possession of a Firearm in Texas?

Unlawful possession of a firearm (UPF) happens when someone has a gun but isn’t legally allowed to have one because of certain restrictions. Texas Penal Code 46.04 outlines the specific conditions under which the law prohibits someone from possessing a firearm. These restrictions generally apply to people with felony convictions, those with certain domestic violence convictions, and a few other categories.

Who is prohibited from owning a firearm in Texas?

A variety of people fall under the “prohibited” category here in Texas, meaning they’re not allowed to possess firearms. These groups include:

• If you’ve been convicted of a felony, you can’t possess a firearm in Texas. However, there is an exception – a convicted felon may possess a firearm at their home only after five years have passed since they completed their prison sentence, probation, or parole.
• If you are convicted of a Class A misdemeanor for domestic violence, you are prohibited from owning or possessing a firearm for five years after completing your sentence or community supervision.
• If you’re subject to a restraining order or protective order, you’re generally prohibited from possessing a firearm while the order is active.
• Deferred adjudication isn’t the same as a conviction, but for firearm possession purposes, Texas law treats it similarly. If you’re on deferred adjudication for a felony, you can’t legally possess a firearm until five years after completing the terms of your probation.

What is possession?

Texas law makes a distinction between actual possession and constructive possession:

• Actual possession means the firearm is physically on you — like in your hand, pocket, or waistband.
• Constructive possession means the firearm isn’t directly on you but is somewhere you have control over, like in your car or home.

Even if the gun isn’t yours, if it’s found in an area you control (like your bedroom or the glovebox of your car), the law may still consider it to be in your possession.

Common scenarios that can include UPF charges include:

• You may believe you can legally possess a firearm after completing your sentence. However, if the five-year waiting period hasn’t passed, or if the gun is found outside your home, you could face UPF charges.
• If you are unaware that you’re prohibited from owning a gun due to a restraining order, you could unknowingly break the law by keeping firearms at home.
• After completing a sentence for a Class A misdemeanor involving domestic violence, you may not realize you still face a five-year ban on firearm possession.

What are the penalties for UPF in Texas?

The penalties for unlawful possession of a firearm vary based on the circumstances. Here’s a breakdown:

• For convicted felons, possessing a firearm before the five-year waiting period ends is considered a third-degree felony, which carries two to 10 years in prison and up to $10,000 in fines.
• For domestic violence offenders, if someone convicted of a Class A misdemeanor involving family violence is caught with a weapon during the five-year period, they can be charged with another Class A misdemeanor, which carries up to one year in jail and fines up to $4,000.
• If someone subject to a protective order is caught with a firearm, they may face a Class A misdemeanor, with the same potential penalties as above.

What about federal law?

Federal law often overlaps with Texas state law when it comes to firearm possession. Under federal law, convicted felons are permanently prohibited from possessing firearms. Federal restrictions also apply to people with domestic violence convictions, those under restraining orders, and individuals deemed mentally incompetent. Even if Texas law permits firearm possession under certain circumstances (like the five-year rule for felons), federal law may still bar you from owning a gun. The Copperas Cove criminal defense attorneys at Mary Beth Harrell Criminal Defense and DWI Lawyers can explain these situations and your rights in more detail.

What defenses do I have against UPF charges?

Our criminal defense attorneys can use a variety of defenses, depending on your situation. Some of these include:

• If you didn’t know the firearm was in your possession (for example, if it was left in your car by someone else), you may have a viable defense.
• If the police found the firearm during an illegal search, we might seek to suppress the evidence, which could lead to the charges being dropped.
• If the firearm was found in a shared space (like a home or vehicle used by multiple people), the prosecution must prove that the weapon was yours.
• In some cases, you may be wrongfully accused of possessing a firearm due to a mix-up or misinformation. Our attorneys can work to clear up cases of mistaken identity.

What should I do if I’m charged with a UPF in Copperas Cove?

Facing a UPF charge can feel intimidating, but the right legal strategy can make all the difference. Our attorneys recommend taking the following steps if you’ve been charged with unlawful possession of a firearm:

• Hire an experienced Copperas Cove criminal defense attorney. We can evaluate the facts of your case, identify potential defenses, and work for the best possible outcome for your case.
• Don’t speak to the police without a lawyer. Anything you say can be used against you – it’s better to stay quiet and consult with your attorney as soon as possible.
• If there are circumstances that could support your defense, like proof that the firearm belonged to someone else or documentation proving the police conducted an illegal search, share these details with your attorney.

How can I prevent a UPF charge?

The best way to avoid UPF charges is to stay informed about your legal rights and restrictions. Our attorneys have some tips:

• If you have a felony conviction or a domestic violence misdemeanor, make sure you understand the waiting periods and comply with them fully.
• Avoid purchasing, carrying, or keeping firearms if you’re subject to a protective order.
• Seek legal advice if you’re unsure about your firearms rights – our attorneys can help.

If you’re facing charges for unlawful possession of a firearm in Texas or have questions about your gun rights, don’t try to go through the legal system alone. The experienced Copperas Cove criminal defense attorneys at Mary Beth Harrell Criminal Defense and DWI Lawyers can help you understand your options, build a strong defense, and protect your future. Contact us for a free consultation — let’s work together to safeguard your rights and fight for the best possible outcome. Call us or fill out our contact form today.