(Editor’s Note: Please do not contact us if you are seeking a pardon or restoration of gun rights. We do not represent individuals attempting to restore their gun rights or obtain a pardon. We are a criminal defense law firm representing individuals charged with serious crimes involving firearms before criminal courts across Texas and federal courts nationwide. If you are under investigation or charged with allegations of Import, Export, Manufacturing or Dealing Firearms or Federal Felon in Possession of a Firearm, we can help. We do not give legal advice over the phone and will not answer questions about restoration of gun rights. For more information please read the article below and then refer to Convicted Firearms Possessing Firearms.)
There are nearly 27 million people in Texas. Media reports say that 35.7 percent of them own a firearm. Approximately 44 percent of them own between 2 and 5 firearms. Roughly, there are at least 20 million firearms in the State of Texas. And there are about 8,500 gun dealers, more than any other state, selling them. There are slightly more than 700,000 law-abiding Texans with a valid concealed weapons permit. Texas is indeed a gun state, second only to Florida.
In 2014, approximately 21,000 inmates were released from the Texas prison system. How many of these ex-felons will unlawfully possess or legally purchase a firearm is uncertain. The question then is when can a felon own, or even simply possess, a gun?
Individuals Prohibited from Possessing Guns
This discussion must begin with a forewarning about the federal gun law that criminalizes some gun ownership. Title 18, United States Code, Section 922(g) makes it unlawful for certain classes of individuals to ship, transport, possess or receive any firearm or ammunition with the required interstate commerce nexus.
Convicted felons top the list followed by fugitives from justice; unlawful users or addicts of controlled substances; mental defectives; illegal aliens; dishonorably discharged servicemen; and individuals who have renounced their citizenship.
Others individuals subject to gun ownership prohibitions are those under a court order restraining them from harassing, stalking or threatening an intimate partner, their child, or a child of a partner or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; or who have been convicted of a misdemeanor offense of domestic violence.
Violations of Section 922(g) can result in a prison sentence of not more than ten years, a fine, or both.
Relief from Disability
However, as NEWSMAX reported last year, a 1965 amendment to the federal Firearms Act of 1938 permits a felon to apply for a permit to possess a gun if he or she can convince the Bureau of Alcohol, Tobacco, and Firearms that “the circumstances surrounding the crime and subsequent felony conviction were such that the felon should not be considered a public safety risk …”
Title 18, US Code, Section 925 allows the relief from disability and appeal from denial of the relief:
“The Attorney General may grant such relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant’s record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest. Any person whose application for relief from disabilities is denied by the Attorney General may file a petition with the United States district court for the district in which he resides for a judicial review of such denial.”
What is a Felon
For a convicted felon to unlawfully possess a firearm within the parameters of Section 922(g), he or she must have been convicted of a crime that is “punishable by imprisonment of more than one year.” This prohibition does not include certain “white collar” crimes, e.g., anti-trust law violations, restraint of trade, or unfair trade practices, even when they are punished by more than one year imprisonment.
Other instances where a felon can lawfully possess a firearm, according to the Bureau of Alcohol, Tobacco, and Firearms, is when the felon’s conviction has been set-aside or expunged, for which the person has been pardoned or has had [his or her] civil rights restored.
“Cleansing” of Disability
Some states, like Texas, have a “cleansing” period that allows felons to own firearms after a specified period of time, or in specific situations, following a criminal conviction. For example, Section 46.04 of the Texas Penal Code allows an individual with a felony conviction to possess a firearm on the premises where he or she lives five years after the individual’s release from prison or probation.
Federal Law Still Supreme
The problem is that state laws like Section 46.04 do not trump the federal prohibitions and penalties spelled out in Section 922(g).
Since most criminal convictions are neither expunged nor set aside, Section 922(g) recognizes gun ownership by a felon only after he or she has been pardoned with a full restoration of civil rights. These rights include the right to serve on a jury, right to hold public office, and right to vote. Some appellate courts have held that there must be a restoration of all three rights.
The Supreme Court has held that whether a felon’s civil rights have been restored must be determined under the law of the convicting jurisdiction.
A Texas pardon, under Article 48.01 of the Code of Criminal Procedure, restores the right to serve on a jury, right to hold public office, and right to serve as Executor or Administrator to an estate. The right to vote in Texas is automatically restored upon discharge from a conviction. A full Texas pardon, thus, is compatible with Section 922(g).
Texas Restoration of Rights for Federal Convictions
Under Article 48.05 of the Texas Code of Criminal Procedure, individuals with a federal or foreign conviction that takes away their civil rights may file an application for restoration of their civil rights. Such an application is considered a form of pardon in this state. This application can be submitted to the sheriff in the county in which the applicant currently resides or where he resided at time of conviction; or it can be submitted directly to the Board of Pardons and Paroles. A rejected application can be re-submitted one year after its denial.
The requisites for an Article 48.05 application are:
- The federal or foreign offense must not involve violence or threat of violence, drugs or firearms;
- The sentence for the conviction must be completely served;
- For a federal offense, the conviction must have occurred at least three years before the filing of the application;
- For a foreign offense, the conviction must have occurred at least two years before the filing of the application;
- Must not have any other conviction at any other time for any offense under the laws of Texas, the United States, or any other state; and
- The application must be accompanied by three or more affidavits from others supporting the applicant’s good character.
If the Board of Pardons and Paroles grants the application, it is sent to the Governor for his review. If the Governor accepts the board’s recommendation, he or she shall issue a certificate of restoration of rights.
The issues of private gun ownership and public display of firearms have become increasingly contentious with the increasing frequency of mass shootings in this country. Federal prosecutors face both public and political pressure to vigorously prosecute gun law violations.
Restoration, Pardons, Criminal Charges
If you need more information about restoration of your rights, the pardon process or if you have been charged with a federal or state felon in possession criminal charge, you should immediately consult with a qualified lawyer who has experience in dealing with these issues immediately. Do not assume you can possess a firearm until you have consulted a lawyer about the specifics of your case.