If Convicted of a Felony, Can I Legally Own a Gun?

Frequently I am contacted by someone with a Felony conviction that is years or even decades old, and they want to know if they can ever own a firearm again.

The answer is more complicated than YES or NO.  Under Texas law there is an exception permitting convicted felons to possess firearms, but only in their residence, five years after being released from prison, parole, or probation (if convicted and their sentence was probated).  However, under Federal law it remains illegal for a convicted felon to possess a firearm, anywhere, including their residence.

Texas Law has a VERY NARROW Exception Permitting Felons to Possess a Firearm

In Texas, the law that Addresses Convicted Felons found in Possession of a weapon (a firearm) is Texas Penal Code Section 46.04.  That section reads:

Sec. 46.04. UNLAWFUL POSSESSION OF FIREARM.

(a) A person who has been convicted of a felony commits an offense if he possesses a firearm:

(1) after conviction and before the fifth anniversary of the person’s release from confinement following conviction of the felony or the person’s release from supervision under community supervision, parole, or mandatory supervision, whichever date is later;

(2) after the period described by Subdivision (1), at any location other than the premises at which the person lives.

It takes a little deciphering to figure out what that means as far as what is legal possession of a firearm by a felon, but essentially you can own one in your home after conviction and before the fifth anniversary of the person’s release from confinement following conviction of the felony or the person’s release from supervision under community supervision, parole, or mandatory supervision, whichever date is later…at any location other than the premises where the person lives. So if you are a convicted felon and get caught with a firearm anywhere else other than the premises where you live, you can be charged with felon in possession of a weapon (or anywhere, including where you live, it has been less than 5 years since you finished parole, were released from prison, or completed probation.

It is STILL Illegal for a Felon to Possess a Firearm Under Federal Law

Unfortunately, the Federal Firearms act

Possession of a firearm by a felon remains illegal under 18 USC § 922(g), the Federal Firearm Act.  The Federal law prohibits possession of a firearm by a prohibited person; among the definitions of prohibited person is a person that has been convicted of a felony.

Before you let the Federal law scare you – let’s think about this in perspective.  Federal agents are the only ones that will be investigating and pursuing charges for Federal crimes.  The only likely scenario where weapons found in your home would get you charged with a federal crime would be if the discovery of the weapons was incidental to some other Federal search warrant being served.  So if, for example, you are a convicted felon, and your residence had a search warrant executed on it by federal agents looking for a large quantity of controlled substances, and they also find the weapons – you would be charged with Federal firearms offenses as well.

CHARGED WITH A WEAPON OFFENSE?

If you have been arrested for unlawful possession of a firearm,
felon in possession of a firearm or ANY gun crime, call LeGrande Law NOW!
Gun and other Weapon crimes are prosecuted in Texas, you need an aggressive criminal defense attorney
To fight for your freedom and make sure that justice is done.

Contact Criminal Defense Lawyer Tristan LeGrande IMMEDIATELY by calling 281-684-3500.

http://www.legrandelaw.com

http://www.houstondrugattorney.net

Houston Criminal defense attorney Tristan LeGrande

DEADLY FORCE TO PROTECT PROPERTY

In the aftermath of Hurricane Harvey and its accompanying flooding, the familiar stories have appeared in the news detailing some of the unfortunate crimes that always seem to happen during one of these types of events, including robbery, fraud, theft or burglary (what some have labeled “looting”).  Many are unaware that in the State of Texas we do not only permit the use of deadly force to protect your life and the life of others the same as your own, but to use deadly force to protect property, if certain conditions are met under the circumstance that you are confronted with.

In Texas, when can I use deadly force to protect my Property?

Under Section 9.42 of the Texas Penal Code, a person is justified in using deadly force against another to protect land or tangible, movable property:

(1) If he is justified in using force against the other under Section 9.41 (force to protect one’s personal property); and, (2) when and to the degree he reasonably believes the deadly force is immediately necessary:

(A) to prevent the other’s imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or

(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and

(3) he reasonably believes that:

(A) the land or property cannot be protected or recovered by any other means; or

(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

See Texas Penal Code 9.42 Deadly Force to Protect Property

In Texas, when can I use deadly force to protect another person’s property?

A person is justified in using force or deadly force against another to protect land or tangible, movable property of a third person if, under the circumstances as he reasonably believes them to be, the actor would be justified under Section 9.41 (use of force to protect one’s personal property), or 9.42 (Deadly force to protect property), and:

(1) the actor reasonably believes the unlawful interference constitutes attempted or consummated theft of or criminal mischief to the tangible, movable property; or

(2) the actor reasonably believes that:

(A) the third person has requested his protection of the land or property;

(B) he has a legal duty to protect the third person’s land or property; or

(C) the third person whose land or property he uses force or deadly force to protect is the actor’s spouse, parent, or child, resides with the actor, or is under the actor’s care.

See Texas Penal Code 9.43 Protection of Third Person’s Property

Finally, I would advise anyone contemplating the use of a firearm for personal protection to invest in firearms safety and training courses, and to obtain a license to carry a firearm if they are eligible.

IMPORTANT things to remember about Texas firearms law

  • You do not need a permit to own a firearm or to keep a firearm on property that you own.
  • Without a permit, you may carry a concealed or open-carry firearm while on property that you own.
  • You do not need a license to carry a loaded firearm in your vehicle, so long as the weapon is not on your person, and is not in plain view (basically, if you carry a weapon in a vehicle, keep it in a closed container like the center console or the glove compartment).
  • To carry a firearm concealed on your person, or open carried in a holster, you must have a license to carry a firearm.  If you carry a loaded weapon on your person you can be charged with Unlawful Carry of a weapon, a Class A Misdemeanor punishable by up to 1-year in County Jail and a $4,000 fine.
  • If you have been convicted of a felony, there is a discrepancy with Federal law and Texas Law when it comes to your right to own a firearm.
    • Under Federal law, you lose your right to own a firearm indefinitely if you are convicted of a felony.
    • Under Texas law, 5-years after completing probation, parole, or being released from prison you may own a firearm, but ONLY at your residence.
  • If you plead guilty to an assault involving family violence, Federal law treats this as a conviction, even if you are not convicted in court, and you will not be permitted to buy a firearm with a Federal background check.
  • In Texas you may purchase a firearm in a private transaction with an individual without a Gun Dealers license, so long as the buyer proves they are a Texas resident.  No records are required to be kept, but I would suggest keeping records in a safe place anytime you engage in a private gun transaction.

CHARGED WITH A WEAPON OFFENSE?

If you have been arrested for unlawful possession of a firearm,
felon in possession of a firearm or ANY gun crime, call LeGrande Law NOW!
Gun and other Weapon crimes are prosecuted in Texas, you need an aggressive criminal defense attorney
To fight for your freedom and make sure that justice is done.

Contact Criminal Defense Lawyer Tristan LeGrande IMMEDIATELY by calling 281-684-3500.

http://www.legrandelaw.com

http://www.houstondrugattorney.net

Houston Criminal defense attorney Tristan LeGrande

Fees for TX License to Carry a Handgun $40 Starting Sept. 1st – Lowest in the Country

Starting September 1, 2017, the first time fee for a license to carry a handgun will be reduced to $40, down from $140.

Prior to being signed into law, it saw overwhelming support in the legislature, where it passed by a 111-30 after the addition of a last minute amendment by Jeff Leach of Plano to waive the fee for law enforcement.

The law began as Senate Bill 16, proposed by state Senator Robert Nichols.  The measure reduced the first-time fee for a license to carry from $140 to $40 and the annual renewal fee from $70 to $40. The fee would cover the Department of Public Safety’s cost to manage the license program as well as $27 for county, state and federal background checks.

“The problem is we have the third-highest fee [for a license to carry] in the nation,” said state Representative Phil King of Weatherford, who siagned onto the bill along with 22 members of the Texas House as authors or co-authors.

At $140, the Texas license fee was 3rd highest in the nation behind Illinois and Arkansas.

House democrats criticized the law, contending that the reduced fee will cost the state roughly $12.6 million in 2018.

When Governor Abbot signed the Bill into law on May 29, 2017, he did it at a gun range to celebrate.

With press waiting for comment, Abbott spent several minutes on target practice with his 9mm. After he finished, Abbott held up his target for the press in attendance and said jokingly, ” I am going to carry this around in cade I see any reporters.”  Unsurprisingly, this drew criticism from some organizations, such as the Brady Campaign, a national group opposed to gun violence, criticized Abbott for his joke, calling it “dangerous and out of line” in light of recent attacks against journalists.

“No law-abiding Texan should be priced out of the ability to exercise their Second Amendment rights,” Abbott said in a prepared statement after the signing.

Texas becomes the State with the Lowest Handgun Licensing Fees in the country.

Texas only approved concealed handgun licenses in 1995 when George W. Bush signed it into law; in 2015 Texas became an open carry state and “Concealed” handgun licenses went extinct in favor of “Licenses to Carry.”  Some even advocate constitutional carry, meaning that there is no license requirement to carry a concealed handgun.

CHARGED WITH A WEAPON CRIME?

If you have been arrested for unlawful possession of a firearm,
felon in possession of a firearm or ANY gun crime, call LeGrande Law NOW!
Gun and other Weapon crimes are prosecuted in Texas, you need an aggressive criminal defense attorney
To fight for your freedom and make sure that justice is done.

Contact Criminal Defense Lawyer Tristan LeGrande IMMEDIATELY by calling 281-684-3500.

http://www.legrandelaw.com

http://www.houstondrugattorney.net

Houston Criminal defense attorney Tristan LeGrande

When Possession of Adderall was NOT a Felony in Texas***

adderall

***AS OF SEPTEMBER 1, 2017, POSSESSION OF ADDERALL/VYVANSE WITHOUT A PRESCRIPTION IS A FELONY CLICK HERE FOR INFORMATION REGARDING THE RECENT LAW CHANGE ***

Texas Drug Law History & The Texas Health & Safety Code

Texas has had a unique history in classifying substances people consume to alter their consciousness.

The most recent evolution of Texas Drug Law has come in the form of the Penalty Groups outlined in the Texas Health and Safety Code (HSC).  Beginning in 1989, Section 481 established the “Penalty Group,” with most modern changes going into effect by 1997.  No a single legislative session has passed since its inception without lawmakers making from small to sweeping changes.

This section of the HSC divided most drugs of abuse that people consume into “Penalty Groups,” generally determined by the type of drug they are (stimulant, hallucinogenic, depressant, opiate, etc.), and the degree of perceived danger for the substance. Substances have been added as they have gained more widespread use, or have begun to be used to get people high with more regularity.

Pharmaceutical drugs are also fit into the Penalty Group scheme – enter Adderall (Amphetamine / Dextroamphetamine).  Adderall is one of several Central Nervous System stimulant drugs that originally was developed to treat children with Attention Deficit Hyperactivity Disorder (ADHD).  But ask any college or even law school student what else it can be used for – all-nighters, term-papers, or even legal research.  In short, it is a drug that makes you burn a little brighter a little longer.  I mean, it should, since it is fundamentally indistinguishable in its effect from methamphetamine in its mechanism of action on your nervous system (See Neuroscientist: Meth Is Virtually Identical to Adderall—This Is How I Found Out By: Dr. Carl Hart).  The only main difference is that its typical method of administration, is that it is taken orally.  Such “recreational” or off-label use is rampant on campuses nationwide.

Dr. Carl Hart lecturing about how the rate of metabolism is one of the few differences between meth & Adderall:

Texas lawmakers recognized this fact and scheduled the substance accordingly, Schedule 2, the second most serious classification of controlled substances, right along with MDMA (Ecstacy).  What this meant is that possession of any amount of Adderall, even 1 pill, without a prescription, was a a felony.

How Possession of Adderall became a Misdemeanor – Without Anyone Even Noticing

In the last 5-10 years new designer drugs have come onto the market, and Texas lawmakers have scrambled to respond by adding the new substances to the list of chemicals in the Penalty Groups under the HSC.  However because some of the chemicals listed were so broad, an exception to make sure that people with valid prescriptions for some prescription drugs were not prosecuted.

As of September 1, 2015, the new language in sub-section (d) of  Section 481.103 of the statute reads:

“If a substance listed in this section is approved by the Federal Drug Administration, the inclusion of that substance in this penalty group does not apply, and notwithstanding any other law, a person may not be convicted for the manufacture or delivery or possession…[under Penalty Group 2]” .  

Instead these substances are treated as misselaneous substances and piunished under Section 481.119.  Hence, Possession of Adderall without a prescription became a Misdemeanor – not a Felony, overnight.

Why the Law May Change Back 

In short, this was an accident – and reducing the punishment for adderall and Vyvanse was an unintended consequence of the change to the law.  It wasn’t something that anybody caught during the legislative process.  In July the Texas District and County Attorneys Association, as well as the Texas Criminal Defense Lawyers Association sent a notice to members explaining what happened.  Prosecutors all over Texas have begun reviewing cases and are changing charging protocols, and even reviewing past cases because many Defendants were sentenced under the old law.  Legislators are already cooking up a new law that will likely pass during the next legislative session to return illegal possession of the drug to a felony.

Until then, its just a Class B Misdemeanor to Possess Adderall or Vyvanse in the state of Texas.

***AS OF SEPTEMBER 1, 2017, POSSESSION OF ADDERALL/VYVANSE WITHOUT A PRESCRIPTION IS A FELONY – CLICK HERE FOR INFORMATION REGARDING THE RECENT LAW CHANGE ***

CAUGHT WITH DRUGS?

If you are accused of any drug crime, including Possession of Adderall (Amphetamine / Dexamphetamine)

(including possession of a Controlled Substance)

Contact attorney Tristan LeGrande by calling 281-684-3500.

http://www.legrandelaw.com

http://www.houstondrugattorney.net

Houston Drug Attorney Tristan LeGrande

Tristan LeGrande – LeGrande Law