Gun possession is a Constitutional right that we all possess. The Second Amendment states “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Despite this, there are times when the government can prohibit you from owning or possessing a firearm. When you’re charged with a family violence case in Texas, there are two points where your right to own or possesses a gun can be affected.
For many people in Texas, being able to possess a firearm is very important. For others, it doesn’t matter. But regardless of how you feel about guns, you should be aware any time that one of your Constitutional Rights is being restricted.
Condition of Bond
When you’re arrested and charged with a crime, you will see a judge who will set bond on your case. This is the amount of money that you will have to pay to get out of jail while your case is pending. The judge can also set conditions of your bond. These are rules that you must follow while you are on bond. If you violate any of the conditions of bond, you can be rearrested and charged with violating a condition of bond. In family violence cases it’s common for judges to order that you not possess a firearm while you’re on bond.
If the judge orders that you not possess firearms as a condition of bond, you will not be able to possess a firearm until your case is closed. That could be from your case is dismissed, there’s a trial, or until you accept a plea. Once one of those things happen, you are no longer on bond and any conditions of bond no longer apply.
Finding of Family Violence
Family violence cases have an additional set of consequences that non-family violence cases do not have. If you take a plea or if you are found guilty at trial, the judge is going to make a finding that you committed an act of family violence. The only ways to avoid a finding of family violence are if your case is dismissed, you are found not guilty at trial, or you successfully complete a pretrial diversion program. Even deferred adjudication will result in a finding of family violence. When a judge makes that finding, you will not be able to own or possess a firearm under Texas and federal law.
Under Texas law, you may not possess a firearm for five years after being released from jail or completing probation if you are convicted of class a, misdemeanor assault to a family or household member.
Under federal law, it is illegal to possess a firearm if you’ve been convicted of a misdemeanor crime of family violence or dating violence. This law does not have a time period when the law no longer applies. This means that once you are convicted, you will not be able to possess a firearm for life under federal law.
Restoration of Rights
Under Texas law, once that fifth year anniversary has passed, you are no longer violating state law if you were to possess a firearm. There’s nothing that you have to do, the state law that prohibited you from possessing a firearm just no longer applies to you.
Under federal law though, If you are convicted of violence against a family member, the only way to get your gun rights restored is by having the conviction removed. In Texas this is only possible on a family violence case through a pardon from the governor. From a practical standpoint, it is very difficult to get a pardon. If you are convicted of dating violence, there may be a way for you to have your gun rights restored after five years.
If you have any questions about how a family violence case may impact your right to possess a gun or if you’re being charged with a crime in San Antonio, please schedule a strategy session where we can answer your questions and give you a plan of action to move forward.
The Law
Texas Penal Code Sec. 46.04. UNLAWFUL POSSESSION OF FIREARM.
(b) A person who has been convicted of an offense under Section 22.01 [assault], 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.
Second Amendment, United States Constitutiion
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
18 U.S. Code § 922
(g)It shall be unlawful for any person—
(9)who has been convicted in any court of a misdemeanor crime of domestic violence,
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
18 U.S. Code § 921 – Definitions
(33)
(A)Except as provided in subparagraphs (B) and (C), the term “misdemeanor crime of domestic violence” means an offense that—
(i)is a misdemeanor under Federal, State, Tribal, or local law; and
(ii)has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, by a person similarly situated to a spouse, parent, or guardian of the victim, or by a person who has a current or recent former dating relationship with the victim.
(B) (i)A person shall not be considered to have been convicted of such an offense for purposes of this chapter, unless—
(I)the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and
(II)in the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either
(aa)the case was tried by a jury, or
(bb)the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.
(ii)A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
(C)A person shall not be considered to have been convicted of a misdemeanor crime of domestic violence against an individual in a dating relationship for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had firearm rights restored unless the expungement, pardon, or restoration of rights expressly provides that the person may not ship, transport, possess, or receive firearms: Provided, That, in the case of a person who has not more than 1 conviction of a misdemeanor crime of domestic violence against an individual in a dating relationship, and is not otherwise prohibited under this chapter, the person shall not be disqualified from shipping, transport, possession, receipt, or purchase of a firearm under this chapter if 5 years have elapsed from the later of the judgment of conviction or the completion of the person’s custodial or supervisory sentence, if any, and the person has not subsequently been convicted of another such offense, a misdemeanor under Federal, State, Tribal, or local law which has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, or any other offense that would disqualify the person under section 922(g). The national instant criminal background check system established under section 103 of the Brady Handgun Violence Prevention Act (34 U.S.C. 40901) shall be updated to reflect the status of the person. Restoration under this subparagraph is not available for a current or former spouse, parent, or guardian of the victim, a person with whom the victim shares a child in common, a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or a person similarly situated to a spouse, parent, or guardian of the victim.
Sean Henricksen
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