A felony conviction in Texas costs an individual more than years of their life. It also costs them the right to possess a firearm, and reclaiming that right too early, or in the wrong place, creates a brand-new felony. This article walks the law piece by piece: what § 46.04 actually prohibits, what the penalties look like on the state and federal sides, and where a strong defense finds its footing.
Is unlawful possession of a firearm by a felon a specific charge under Texas law?
Yes, but the terms are a bit different. The statute itself is titled “Unlawful Possession of Firearm,” § 46.04 of the Texas Penal Code.¹ The “by a felon” part of the charge comes from the statute’s first subsection, which is aimed squarely at individuals with a felony conviction. Other subsections cover other groups, and I’ll get to those near the end.
Individuals who are convicted of unlawful possession of a firearm by a felon in Texas face up to 10 years in prison under state law. Federal charges can raise that ceiling to 15 years, and beyond.
Here is the working core of the law, abbreviated for readability.
An individual who has been convicted of a felony commits an offense if they possess a firearm:
after conviction and before the fifth anniversary of the individual’s release from confinement, or their release from supervision under community supervision, parole, or mandatory supervision, whichever date is later, or
after those five years, at any location other than the premises where the individual lives.²
So, what matters? Timing and location. For the first five years, possession anywhere is against the law. After five years, possession anywhere other than the individual’s home is against the law.
I’ll explain how that works in a moment.
The five-year clock starts ticking later than the release date.
Notice the phrase “whichever date is later." So, it’s either five years or when parole ends. So, if the parole officer or community supervisor releases an individual after confinement, the clock starts when supervision ends.
Counting from the wrong date is one of the most common ways well-meaning individuals end up facing these charges.
The state must prove that the possession of a firearm was voluntary.
A separate provision of the Penal Code, § 6.01(a), says a person commits an offense only if the person voluntarily engages in the conduct.³
Buying a gun, or borrowing one from a friend, is obviously voluntary. But “possession” can attach in situations that surprise individuals, which is why the word has its own legal definition. Let’s look at it.
The word “possession” comes with a few different legal definitions that are important to know.
“Possession” sounds like ownership: You bought the gun, so it’s yours. The Penal Code defines it more broadly. Possession means actual care, custody, control, or management.⁴
Ownership is not required, so let’s work this out.
“Actual possession” means having physical control over the firearm.
Actual possession means the firearm is on the individual’s person, whether that’s in a hand, in a pocket, or in a bag they’re carrying.
It’s directly observable, and the prosecution has an easier time proving it.
“Constructive possession” means that if individuals have the ability and intent to control a firearm, charges may follow.
With constructive possession, an individual can be found guilty even if the gun is not physically on them, as long as they have access to it and a conscious connection with it. A firearm stored at home or at a workplace can qualify, even if the individual is out of town when it’s found.
Two individuals can possess the same gun—what happens next?
In 2014, the case of a convicted felon named David Greer showed how far constructive possession reaches. Officers stopped the truck Greer was driving to arrest him and his girlfriend on outstanding warrants. During an inventory search of the truck, police found a loaded .22 revolver in the pocket of a black leather jacket stowed behind the front seats.⁵
Greer denied the jacket was his. At trial, his girlfriend claimed the gun was hers. The jury didn’t buy it, and the appeals court upheld the conviction. As the court put it:
“The State can meet its burden with direct or circumstantial evidence, but it must establish that [the accused’s] connection with the firearm was more than fortuitous.”⁵ — Chief Justice Tom Gray, Texas Tenth Court of Appeals
In Greer’s case, the state did just that. Witnesses tied the jacket to him, and the gun sat within reach in a truck he was driving. Joint possession is enough. The gun being “hers” does not make it not “his.”
Felons cannot carry firearms, no matter the type or severity of felony conviction.
Armed robbery, manufacture of a controlled substance, a white-collar financial charge: the nature of the felony makes no difference. Once an individual has been convicted of a felony, the right to possess a firearm is restricted. Convictions from other states and from federal court count too, so long as the offense was a felony where it happened or was punishable by a year or more in a penitentiary.⁶
In Texas, the charge for unlawful possession is a third-degree felony.
A conviction under the felon-in-possession subsection is a third-degree felony.⁷ That means 2 to 10 years in state prison and a fine of up to $10,000. And as we’ll see below, the state charge is often just the beginning.
The law changes after five years, but less than individuals think.
After the five-year period ends, Texas law allows an individual with a felony conviction to possess a firearm on the premises where they live.² That is the entire exception. The firearm absolutely must stay home. Transporting it, taking it hunting, carrying it outside for protection: each of those puts the individual right back in third-degree felony territory.
And before anyone relaxes: state law is only half the picture.
Federal law bans possession for life.
Federal law prohibits firearm possession by anyone convicted of a crime punishable by more than one year in prison. The ban is for life; it applies everywhere, including the home, and it overrides anything Texas allows.⁸ There is no five-year exception.
The penalty for the federal charge of felon in possession of a firearm is up to 15 years in prison and a fine of up to $250,000.⁹ For individuals with three or more prior convictions for violent felonies or serious drug offenses, the Armed Career Criminal Act imposes a minimum sentence of 15 years and a maximum of life.⁹
So an individual could follow Texas law to the letter, keep the firearm at home after five years, and still be committing a federal felony. This trap catches well-meaning individuals every year.
Certain misdemeanors also lead to restrictions on carrying firearms.
So far, we’ve talked about felonies. But § 46.04 also reaches individuals whose conviction was a misdemeanor, in one specific category: assault punishable as a Class A misdemeanor and involving a member of the individual’s family or household.¹⁰ A conviction there makes it an offense to possess a firearm before the fifth anniversary of release from confinement or community supervision.
Under the Family Code definitions the statute borrows, “family” and “household” include:
- Relatives by blood or marriage.
- Current and former spouses.
- Parents of the same child, married or not.
- Foster parents and foster children.
- People who live together in the same home, or once did.
Violating this provision is a Class A misdemeanor.⁷ That means up to one year in county jail and a fine of up to $4,000.
Federal law goes further here, too.
Federal law imposes its own ban for misdemeanor crimes of domestic violence, with no at-home exception, and for most individuals, no sunset.⁸ It also now reaches current and recent dating partners, not just spouses and household members. And the Supreme Court has held that the conviction doesn’t need to be labeled “domestic violence” at all. Other violent misdemeanors qualify if the offender and the victim had a domestic relationship.¹¹
Protective orders can trigger the same charges.
One more prong worth knowing: an individual subject to an active protective order commits a Class A misdemeanor by possessing a firearm after receiving notice of the order and before it expires.¹² If a protective order is part of your situation, read my guide to handling protective orders in family violence cases.
Punishment goes beyond prison and fines.
I want to be absolutely clear about this. A felon-in-possession conviction creates lasting consequences beyond incarceration:
- Difficulty finding employment.
- Loss of professional licenses.
- Immigration consequences for non-citizens.
- Housing restrictions.
- Impact on child custody arrangements.
So, this is serious. You need capable counsel, whether that's me or another firm. I won't promise you a result. No honest attorney will. What a good criminal defense attorney offers is this: they will be straight with you, they will listen, and they will explain what they are doing for you and why.
How can individuals fight unlawful possession of a firearm charges in Texas?
To fight unlawful possession of a firearm charges in Texas, an attorney can challenge the prosecution’s case by:
- Challenge the possession charge itself.
- Demonstrate that possession was not voluntary.
- Contest the five-year timeline.
- Challenge the reason for the stop or search.
So far, we’ve talked about the damage a conviction can cause. But I don’t want to give the wrong impression. It is possible to fight these charges successfully, and it usually comes down to one of the four strategies above.
1. Challenging possession charges.
Remember, the state must prove care, custody, control, or management, as well as a conscious connection between the individual and the weapon. A gun that was merely nearby, or that belonged to a friend or family member, is not automatically “possessed.” A good lawyer attacks every link the state tries to draw between the individual and that firearm.
2. Demonstrating that possession was not voluntary.
The state must prove the individual voluntarily possessed the firearm.³ If an individual never knowingly took control of the weapon, for example, when someone else stashes a gun in their car without their knowledge, the state’s proof collapses.
3. Contest the five-year timeline.
The math matters. When the state alleges possession inside the five-year window, the actual dates of release from confinement and from supervision become battlegrounds. And after the window closes, the state must prove possession somewhere other than the premises where the individual lives, which raises its own questions about what counts as those premises.
4. Challenge the lawful nature of the stop and the search.
There are strict rules about how police may stop individuals and collect evidence. If the stop was unlawful or the search exceeded its authority, the firearm itself can be thrown out of court, and the case usually goes with it. Greer teaches the flip side: his search challenge failed because officers held valid arrest warrants and followed department policy.⁵ The details decide these fights.
What should you do if you’re charged with unlawful possession of a firearm?
If you’re charged, or even just questioned, don’t talk to the police.
That sentence is worth repeating: Don’t talk to the police. Invoke your right to remain silent, then get a lawyer on the phone. Officers may promise that cooperating will make things easier or that they only want to clear up a few things. Neither is true. What you say can be used against you in court. It cannot help you.
Facing unlawful possession of a firearm charges in Texas? Call Gold Legal now.
Gold Legal, PLLC will fight tirelessly to get unlawful possession of a firearm charges dismissed or secure an acquittal at trial.
If you or someone you know has been charged or is under investigation, you can’t afford to wait. The state is already moving. Get a free case review today.
References
- Unlawful Possession of Firearm. Texas Penal Code § 46.04 (2025). Available from: https://statutes.capitol.texas.gov/Docs/PE/htm/PE.46.htm#46.04
- Texas Penal Code § 46.04(a) (2025). Available from: https://statutes.capitol.texas.gov/Docs/PE/htm/PE.46.htm#46.04
- Texas Penal Code § 6.01(a) (2025). Available from: https://statutes.capitol.texas.gov/Docs/PE/htm/PE.6.htm#6.01
- Texas Penal Code § 1.07(a)(39) (2025). Available from: https://statutes.capitol.texas.gov/Docs/PE/htm/PE.1.htm#1.07
- Greer v. State. 430 S.W.3d 1 (Tex. App.—Waco 2014). Available from: https://caselaw.findlaw.com/court/tx-court-of-appeals/1664454.html
- Texas Penal Code § 46.04(f) (2025). Available from: https://statutes.capitol.texas.gov/Docs/PE/htm/PE.46.htm#46.04
- Texas Penal Code § 46.04(e) (2025). Available from: https://statutes.capitol.texas.gov/Docs/PE/htm/PE.46.htm#46.04
- Unlawful acts. 18 U.S.C. § 922(g). Available from: https://www.law.cornell.edu/uscode/text/18/922
- Penalties. 18 U.S.C. § 924(a)(8), (e). Available from: https://www.law.cornell.edu/uscode/text/18/924
- Texas Penal Code § 46.04(b) (2025). Available from: https://statutes.capitol.texas.gov/Docs/PE/htm/PE.46.htm#46.04
- United States v. Hayes. 555 U.S. 415 (2009). Available from: https://supreme.justia.com/cases/federal/us/555/415/
- Texas Penal Code § 46.04(c) (2025). Available from: https://statutes.capitol.texas.gov/Docs/PE/htm/PE.46.htm#46.04
