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?

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?

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.

***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

While I respect the arguments by some of my colleagues that a person can not be detained and questioned simply because they are seen openly carrying a firearm, they are incorrect.  As I will explain further below, the statutes relating to the carry of firearms specifically permit officers to do so.  As I have said before, by choosing to openly carry a firearm, you are giving the police an excuse to stop you and question you.

Under Section 411.205 of the Texas Government Code you must produce your license to carry on demand.  This is in essence a waiver of a citizens ordinary right not to be stopped, ID’d and questioned without reasonable suspicion they are engaged in (or have been engaged in) criminal activity.  If you fail to produce the license would then be reasonable suspicion to detain.

One interesting aspect of this situation is: what is the penalty for failure to produce your license on demand?  Technically there is no specific penalty for not doing so, but an argument could be made that you are violating the Texas Penal Code by Interfering with Official duties of the law enforcement officer.  The Department of Public Safety could come up with a penalty in this situation, I would be on the look-out for this to happen over the next few years.

It is also important to note that if a law enforcement officer sees a person carrying a handgun (while not on the persons own property, motor vehicle or watercraft), he then has reasonable suspicion to believe the person is violating Texas law by Unlawfully Carrying a Weapon under Texas Penal Code 46.02.  Yes, it is true that an exception is carved out for those Licensed to Carry a firearm under 46.15(b)(6), an officer can investigate to see if the person qualifies for this exception.

CHARGED WITH A WEAPON CRIME?

Effective January 1, 2016 Texans will be able to open-carry a loaded firearm.

This creates some questions: Who can carry?  What restrictions are there on your right to open carry? What about the police; does this mean they can stop anyone seen openly carrying a firearm?

Let’s take them 1 by 1.

The Law 

Individuals are Authorized to openly carry a handgun in the same places that allow the licensed carrying of a concealed handgun with some exceptions.  You are required to first obtain a concealed handgun license.

Unconcealed (open-carry) handguns, whether loaded or unloaded, must be carried in a belt or shoulder holster.

If you already have a valid CHL, you do not need to take any additional measures to be allowed to open-carry, or concealed carry with their valid existing license.

A separate license will not be required to open carry. No additional fee will be required.

No additional training is required to be permitted to open-carry. Additional training will be added to the curriculum for new applicants of Concealed Handgun Licenses related to the use of restraint holsters and methods to ensure the secure carrying of openly carried handguns. The new curriculum will be required for all classes beginning January 1, 2016.

Handgun Licenses will no longer be “CHL” (Concealed Handgun Licenses), they will become LTC (License to Carry).

The eligibility criteria to obtain a license to carry do not change.

You can take a look at a text of the bill passed by the legislature and signed into the law here: House Bill 910.

Restrictions

Open carry is not permitted by a license holder in the following locations, regardless of whether the handgun is holstered:

• Institute of higher education or private or independent institution of higher education
• Any public or private driveway, street, sidewalk or walkway, parking lot, parking garage or other parking area of an institution of higher education or private or independent institution of higher education
• by an individual who is acting as a personal protection officer under Chapter 1702, Occupations Code and is not wearing a uniform.

Sign Reqs. for Businesses Prohibiting Carry of Weapons

Penal Code Section 30.06 provides the language to be included on signs to indicate license holders are forbidden to carry concealed.

Penal Code Section 30.07 provides the language to be included on signs to indicate license holders are forbidden to open carry.

Posting of both signs is an indication by the business that license holders are forbidden to carry concealed or openly.

Police Interactions

One pitfall in the law that you will not see talked about a lot is the implications when it comes to police interactions.  Normally, the police need reasonable suspiction to temporarily detain and question someone, and check their identification.  However, if you are seen openly carrying a handgun, the police will be authorized to stop and check the persons License to Carry without any additional reason.  In other circumstances, the police must have specific and articulable facts taken together with rational inferences from those facts to believe that a person has committed an offense or is about to commit an offense.  Not so if you are open-carrying.

So basically, by openly carrying, you are giving the police justification to stop you and question you, without any independent reason.

House Bill 554 (Effective September 1, 2015) adds some defenses to firearms offense prosecutions.

• Amends the Penal Code to add a defense to prosecution if the actor possessed a handgun that he or she is licensed to carry at the security checkpoint of an airport, and exited the screening checkpoint for the secured area immediately upon completion of the required screening process and notification of possession of the handgun.
• Adds the actor cannot be arrested for the sole offense of possessing a handgun that he or she is licensed to carry, unless a police officer gives the actor the opportunity to leave the area and he or she does not immediately comply.

CHARGED WITH A WEAPON CRIME?

When Oregon voters approved Measure 91 in November 2014, legalizing recreational marijuana possession, they left the job of writing rules for pot shops to the Legislature and the state liquor control agency, which so far haven’t gotten it all figured out.  So come July 1, users won’t have a legal way to buy what they can use legally.

In 1973 Oregon was the first state to impose lighter sanctions for small amounts of marijuana, what many refer to as “decriminalizing” it.  By 1998 Medical Marijuana was legal in the state.  Then, in November 2014, voters approved Measure 91 by 12 percentage points, 56-44.  This was a measure legalizing recreation marijuana

SO WHEN THE HELL ARE THEY GOING TO MAKE IT LEGAL TO SELL WHAT IS ALREADY LEGAL?

The Oregon Liquor Control Commission is writing rules for growing and selling legal pot. It plans to accept applications from prospective farmers January 1, 2016. Retail sales could start in early fall. Last week, the Legislature’s joint marijuana committee voted to start retail sales sooner, by Oct. 1 this year, by going through the existing medical marijuana dispensaries, now more than 300 strong. Legislators say it will take a few months to write rules for the medical dispensaries to sell to non-patients, but the fall crop should be in by Oct. 1, ensuring enough for recreational and medical customers alike.

SO WHO IS NEXT?

A legal pot measure will be on the ballot next year in Nevada.  The national advocacy organization NORML reports there are plans or hopes for 2016 initiatives in four to six more states. In California proponents hope that shifting opinion and the presidential election will attract young voters. Votes are also possible in 2016: Maine, Massachusetts, Michigan, Arizona, and Missouri.

Many people may not realize this because it snuck under the radar, but so is the case in our nations capital, Washington DC.  You can possess it, but you can’t sell it.  So in theory, the politicians that rail against legalizing marijuana could step outside the doors of congress and blaze up a fatty on their way home.  Hypocrisy much?

POT IS STILL ILLEGAL IN TEXAS

IF YOU ARE CAUGHT WITH POT – CALL LEGRANDE LAW!

If you’ve been accused of an offense involving Marijuana (possession of Marijuana)

or any drug crime,  contact attorney Tristan LeGrande by calling 281-684-3500.

http://www.legrandelaw.com

http://www.houstondrugattorney.net

Houston Drug Attorney Tristan LeGrande

Currently, Possession of a usable amount of marijuana less than 2 ounces is a Class B Misdemeanor punishable by up to six months in jail time and a $2,000 fine. The new proposal would mean being issued a $100 ticket, similar to a parking violation.  However, possession of larger amounts would still lead to criminal penalties. The measure would make Texas the 20th state plus the District of Columbia to remove the threat of jail time for the possession of small amounts of weed.

The bill is backed by the Marijuana Policy Project (MPP), the pro-legalization group that spearheaded the passage of Colorado’s historic legalization measure. The bill is also the first in a series that the MPP expects to be introduced in Texas this year, the next attempting to legalize medical marijuana and the third attempting to legalize recreational marijuana.

The subsequent legislation is highly unlikely to be passed, not with the staunch old-school Republican-controlled legislature. Texas Governor Rick Perry has gone on record with an erroneous commentary with regard to decriminalization of marijuana: the state has “kind of done that.” In 2007, Texas passed a measure giving local governments the power to respond to marijuana possession with a summons rather than an arrest, but few counties have adopted it and someone issued a summons may still end up in jail.

I admire the ambitiousness of the legislation, but sadly, it is probably just for show.  As I have said before, there simply is not widespread legislative support for legislation such as this.  Movement in this area of the law (at least in this state) will be slow.  I am not discounting that this is a positive step – I am merely asserting skepticism at the likelihood of its success.  Medical Marijuana…RECREATIONAL marijuana…in TEXAS?  Not likely.  Not anytime in the near future anyway.  Texans will still have to take a roadtrip to Colorado to get stoned without the man being there as a buzzkill.

Allen St. Pierre, executive director of the National Organization for the Reform of Marijuana Laws, another pro-legalization group, says that Texas is in a tier of states that are the least likely to ease marijuana restrictions. These “third tier” states, he says, are ones in which “the legislature has never shown any want to move in this direction and/or there is an executive at the top who is going to oppose and veto any reforms.”

What about popular support…? Well, 61% of Texas residents would support a penalty reduction like the one Moody is proposing, while 58% would support the legalization of medical and recreational weed.

At a press conference on Monday, Moody was joined by representatives from other groups who support the bill, such as the ACLU of Texas and Republicans Against Marijuana Prohibition. Support from such libertarian-leaning conservatives will be crucial in the heavily Republican state.

“Texas doesn’t seem to be ready for a full legal market,” acknowledges Heather Fazio, a representative for MPP in Texas. “That doesn’t mean that the conversation shouldn’t be happening.”

CAUGHT WITH POT?

If you’ve been accused of an offense involving Marijuana (including possession of Marijuana)

or any drug crime,  contact attorney Tristan LeGrande by calling 281-684-3500.

http://www.legrandelaw.com

http://www.houstondrugattorney.net

Houston Drug Attorney Tristan LeGrande

Kenneth Desormes of New York  expressed his contempt, or perhaps dismay, at his Breathalyzer test results by attempting to scarf them down.  This creative plan cover-up plan didn’t pan out, however, and the police served him up a steaming hot dish of new charges.

Police reported they smelled alcohol on Madison’s breath and that he’d stumbled, mumbled, and nearly fell down. He told authorities he’d consumed “a few” drinks that evening. In a May 30 interview with members of the Professional Standards Office, Madison admitted to actually having more than a few, more like between 10 and 12 drinks.

Austin Fire Department Chief Rhoda Kerr’s action against Madison marked a turning point, punishments finally have been getting more steep after being slaps on the wrists to date.

A pattern may be emerging, as Madison is the sixth firefighter suspended for a DWI since January of 2013.  He is, however, the first to incur a be punished with more than a 90 day suspension.  Even the 90 day suspension is rare as punishment, and only was doled out to firefighter James Doyle, who was facing his third DWI charge since 2006.  Doyle agreed to alcohol counseling, randomized testing, and a one-year probation period, as well as assuming the understanding that another violation would result in an indefinite suspension.

Otherwise, Kerr has mostly issued a series of suspensions stretching between 10 and 15 days.  This  despite firefighters reportedly admitting driving after consuming upwards of 10 alcoholic beverages in a sitting.

Madison’s suspension is the second DWI-related sanction handed down to members of the AFD since Kerr’s November 2013 memorandum informing her staff that “prior efforts, including temporary suspensions of 10 days, were not having their intended and desired effects, to wit, to curtail alcohol abuse by Department Personnel, particularly driving while intoxicated.” In the memo – apparently distributed by Kerr because 38% of the AFD suspensions mandated between Feb. 1, 2009, and Oct. 4, 2013, had been DWI-related – Kerr went on to explain that “future first-time ‘driving while intoxicated’ violations would result in a disciplinary action, up to and including indefinite suspension.” Madison reportedly acknowledged receipt of this memorandum – but still decided to drive drunk.

Kerr’s explanation does not mention of the 60-day suspension levied on firefighter Randlall Black.  Black was stopped for speeding on I-35 and subsequently arrested for DWI – though in her initial memorandum sent out to the department, Kerr wrote that “every alcohol related discipline case involving sworn and non-sworn will be judged on its own merits.

“I will decide the appropriate disciplinary action, which may include days off up to and including the indefinite suspension/termination of the employee.”

How Chief Kerr differentiates between what requires 60 day suspension and what an indefinite suspension is unclear, though a comparison of the two memos suggests that Madison – who could barely stand, and had crashed his car so hard into a guard rail that he broke his front right axle – was significantly more blitzed than Black, whose rap sheet in this instance entails little more than “a strong odor of an alcoholic beverage” on his breath.

Kerr’s appears to be addressing a pretty widespread problem, for AFD. It also may indicate a crackdown by Aus­tin Police Department Chief Acevedo. In early April, Acevedo distributed a dramatic video to departmental personnel (copying local media) announcing a new, zero-tolerance policy against drunk-driving police officers. First-time offenders won’t just receive temporary suspensions anymore, Acevedo asserted. Each suspected offender stands to be fired, whether or not they’re found guilty in a court of law.

With news stories of the police beating, choking and shooting people – maybe Austin FD poses a different hazard to the public, on our roads.  They are all of course innocent until proven guilty, but the pattern is real.  It seems like many firefighters in Austin are partying quite a bit.

Arrested For a DWI in Texas?

If you’ve been accused of Driving While Intoxicated, it is crucial that you act quickly.

If you are facing a DWI charge contact attorney Tristan LeGrande by calling 281-684-3500.

HOUSTON DWI ATTORNEY TRISTAN LEGRANDE

LEGRANDE LAW

281-684-3500