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ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Criminal Law
Satisfied Customers: 10627
Experience:  Licensed Texas General Practice Attorney
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Texas law lets a convicted felon possess a firearm on the premises

Resolved Question:

Texas law lets a convicted felon possess a firearm on the premises where he lives once five years have elapsed from his release from prison or from parole, whichever is later. Texas Penal Code §46.04.
However, federal law is much stricter. It generally prohibits a person convicted of a crime "punishable by imprisonment for a term exceeding one year" from possessing a firearm. The test is the length of possible punishment, not whether the crime is called a misdemeanor or a felony. No exception is made for having a firearm at the home, no matter how long ago the conviction. 18 U.S.C. § 922(g). How is it possible for one to cancel the other? If local authorities found a firearm at your home for personal protection and this individual met Texas Penal Code §46.04 guidelines would they turn this over to Federal level and could this be beat due to conflicting laws?
Submitted: 3 years ago.
Category: Criminal Law
Expert:  ScottyMacEsq replied 3 years ago.

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :

Basically what this means is that it is not against Texas law for a felon to have a gun in his/her house, but it is against Federal law. A Texas police officer / etc... may or may not arrest for such a thing. But as to interplay, Federal law supersedes state law that contradicts. Really, there is no contradiction, but just if something is illegal at one level but not the other, then it's still going to be illegal. It can be illegal at both, legal at both, or specifically illegal at one and not the other.

Customer:

This seems like a setup for entrapment to have state laws that do not coincide with federal law then. An idividual that would abide by the laws set forth in his/her state of residence, believing that they are in compliance could easily be sentenced to many years of imprisonment on the foundation that they believed they were in compliance. If federal picked this up, it seems as though leniency would prevail as the individual was not performing an illegal act and was in comopliance.

ScottyMacEsq :

Well, it's actually not entrapment (because that's a law enforcement personnel basically making someone do something that they were not otherwise predisposed to do). Rather, it's a conflict of laws situation, where one will trump the other. There are plenty of states that track with the Federal law. If the Federal law was overturned today, those state laws would still prohibit gun ownership by the felon, but Texas would allow it.

Customer:

Hmmmmmm. OK, so that says that Federal trumps State, but yet State Trumps Federal. That is a no win situation with no logic at all.

ScottyMacEsq :

State never trumps Federal. Where Federal doesn't say anything, states can. So if this law were overturned somehow, the states could still address it. There can also be concurrence of statutes. For instance, minimum wage. Federal law sets the minimum wage, but states can increase it inside their own borders. They cannot, however, decrease it. The Federal minimum wage is the absolute minimum.

ScottyMacEsq :

Now, as a practical matter, states could have a law that authorizes a minimum wage of 25 cents. It would just be unenforceable, because the Federal law preempted that matter in setting an absolute minimum wage, that you can't go below.

ScottyMacEsq :

That's more akin to what Texas law has here.

Customer:

OK. Have you heard of any cases where this situation has happened to an individual and what was the outcome?

ScottyMacEsq :

To be honest, most of the time I have seen this is where they have some other crime that they are looking at the felon for (such as drugs, etc...) and it's a "slam dunk" case. I'm sure that it is prosecuted against persons that have turned their lives around, but I personally have not seen such cases. The cases I have seen are those situations where it's used as an enhancing factor for another crime, or something to plead to (that is, we'll drop X charge if you plead to the weapons charge).

Customer:

Well that doesn't help me much. Honestly my inquiry was about an individual that had a delivery of marijauna conviction 25 years ago was sentenced to 10 years probation, served 5 and got off early for good time, has never had a conviction since and wanted to purchase a gun for his home self protection, thinking that the Texas law abided.

ScottyMacEsq :

I know this is probably not what you wanted to hear, but it's the law. I hope that clears things up anyway. If you have any other questions, please let me know. If not, and you have not yet, please select the "accept" button. If you do click "accept", or if you will in the future, please let me know so I can track these for my own reports and customer satisfaction stats. Thank you, XXXXX XXXXX good luck to you!

Customer:

Well, I would likely have to tell him, probably would not be a good idea to even apply for a Texas Gun License then correct?

ScottyMacEsq :

Actually possession of a license is not the same thing as possession of a gun. Having a license to drive doesn't mean you have a car. Same thing with a gun. But if you're otherwise not allowed to drive, there's no reason to get the license in the first place.

Customer:

Well, if he were to apply for a license, is that not a federal background check also, and even if somehow, you were accepted, would that not put a spotlight on you for violation of not state but federal law. Stands to reason....if you get a license for a car...you plan on driving. If you get a license for a gun you plan on shooting. Hmmmm?

ScottyMacEsq :

Exactly. My point is that even if you can get a license (assuming you can qualify) it doesn't make much sense to do so, because it would be a waste of time and money.

Customer:

Well, solely a mute point as Federal Law prevails. Would you ever think that the federal law in regards XXXXX XXXXX may ever be amended or they prefer it the way it is?

ScottyMacEsq :

I think that it would take a serious states rights effort. From what I have seen, Federal law enforcement agencies use this provision a lot (like I stated above). For instance, the US Marshals, DEA, ATF, etc... all rely pretty heavily on it, because it makes their job easier.

ScottyMacEsq :

Even with a 2/3 majority of NRA card carrying Republicans, I don't see this provision changing. They might provide an exception, but not complete reversal.

Customer:

Yea, Well I will break the bad news to him. Thanks for your time Scotty.

ScottyMacEsq :

My pleasure, although I wish I could have given you better news.

Customer:

NP. Have a nice day.

ScottyMacEsq, Lawyer
Category: Criminal Law
Satisfied Customers: 10627
Experience: Licensed Texas General Practice Attorney
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