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Roger
Roger, Lawyer
Category: Criminal Law
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can a convected felon own a blackpowder firearm in texas

Resolved Question:

can a convected felon own a blackpowder firearm in texas
Submitted: 3 years ago.
Category: Criminal Law
Expert:  Roger replied 3 years ago.

In Texas, a convicted felon can get his/her rights to possess a firearm after 5 years. Here is the statute:

 

Texas Penal Code 46.04

§ 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; or

 

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


(b) A person who has been convicted of an offense under Section 22.01, 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.

(c) A person, other than a peace officer, as defined by Section 1.07, actively engaged in employment as a sworn, full-time paid employee of a state agency or political subdivision, who is subject to an order issued under Section 6.504 or Chapter 85, Family Code, under Article 17.292 or Chapter 7A, Code of Criminal Procedure, or by another jurisdiction as provided by Chapter 88, Family Code, commits an offense if the person possesses a firearm after receiving notice of the order and before expiration of the order.

(d) In this section, "family," "household," and "member of a household" have the meanings assigned by Chapter 71, Family Code.

(e) An offense under Subsection (a) is a felony of the third degree. An offense under Subsection (b) or (c) is a Class A misdemeanor.

Customer: replied 3 years ago.
these statutes are for a firearm. my question was about a "BLACKPOWDER" firearm. is the definition for firearm and blackpowder firearm the same under the law? the guns are different, the definition should be also. what about a federal felony?
Expert:  Roger replied 3 years ago.
They're the same thing in terms of being a firearm.
Customer: replied 3 years ago.
no, their is a difference . i read the code once somewhere online. i guess i'll have to find it again myself. thank you for your time, but i'm not satisfied with your response. please credit back my down payment. thank you
Expert:  Roger replied 3 years ago.
Unfortunately, there's no difference under the law. If a weapon discharges a bullet or shell from a chamber, it's a firearm.

Edited by Kirk Adams on 10/23/2010 at 5:55 PM EST
Expert:  Roger replied 3 years ago.

Here is Texas statute that defines a "firearm":

 

Tex. Penal Code § 46.01

 

(3) "Firearm" means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use. Firearm does not include a firearm that may have, as an integral part, a folding knife blade or other characteristics of weapons made illegal by this chapter and that is:

(A) an antique or curio firearm manufactured before 1899; or

(B) a replica of an antique or curio firearm manufactured before 1899, but only if the replica does not use rim fire or center fire ammunition.

 

As you can see, there's no exception for black powder firearms.

Customer: replied 3 years ago.

Actually I can't see it.

 

In referencing the Tex. Penal Code 46.01 that you posted,

 

(3)"...Firearm does not include a firearm that may have, as an integral part, a folding knife blade or other characteristics of weapons made illegal by this chapter and that is:
(A) an antique or curio firearm manufactured before 1899; or

(B) a replica of an antique or curio firearm manufactured before 1899, but only if the replica does not use rim fire or center fire ammunition."

 

A black powder firearm does not use rim fire or center fire ammunition, and it seems to me would be considered an antique or curio, or replica of an antique or curio.

 

It looks like there is a clear contradiction between the first and last half of that section of penal code. Because a black powder firearm is "designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance," and therfore would be considered illegal to own by a felon. However the Penal Code continues on to say that the term firearm does not include antiques or replicas of antiques that do not use rim fire or center fire ammunition which is in the case of black powder firearms.

 

I have also researched Federal code and defintions of a firearm. I understand that Federal laws and codes would supercede state laws and codes in the case of a federally convicted felon. An individual convicted of a felony against the United States, would be subject to Federal laws and codes instead of Texas laws and codes foremost, is this correct??

 

Referencing Title 18, Part 1, Chapter 44, Section 921 of U.S. Code,

(3) The term "firearm" means

(A) any weapon (including a starter gun) which will or is designed to or may readily be

converted to expel a projectile by the action of an explosive;

(B) the frame or receiver of any such weapon;

(C) any firearm muffler or firearm silencer; or

(D) any destructive device. Such term does not include an antique firearm.

 

(Bold added for reference)

 

and continues to define...

(16) The term "antique firearm" means-

(A) any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured in or before 1898; or

(B) any replica of any firearm described in subparagraph (A) if such replica-(i) is not designed or redesigned for using rimfire or conventional centerfire fixed

ammunition, or(ii) uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade; or

(C) any muzzle loading rifle, muzzle loading shotgun, or muzzle loading pistol, which is designed to use black powder, or a black powder substitute, and which cannot use fixed ammunition. For purposes of this subparagraph, the term "antique firearm" shall not include any weapon which incorporates a firearm frame or receiver, any firearm which is converted into a muzzle loading weapon, or any muzzle loading weapon which can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof.

 

(bold added for reference)

 

As you can see, U.S. Code directly references "black powder firearm."

 

So my questions still feels un-answered and I will reword it as such...

 

"Can a federally convicted felon, own a black powder firearm, in Texas? If his conviction was a Federal Felony and not a State of Texas Felony?"

 

Maybe you can also help me to understand why the similar Texas and U.S. codes seem to contradict themselves?

 

Thank You.

 

 

Expert:  Roger replied 3 years ago.
I have read all this before, and My interpretation is that if it fires a bullet, shot or slug, it's a firearm. I would urge a felon to get permission before carrying such a weapon.

The whole idea is to keep weapons out of the hands of felons to prevent future crimes, etc. Thus, the restriction is going to be interpreted in this vein.
Roger, Lawyer
Category: Criminal Law
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