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Barrister
Barrister, Criminal Defense Law
Category: Criminal Law
Satisfied Customers: 34272
Experience:  16 years practicing criminal defense.
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When can a convicted felon possess a firearm, Texas, not

Customer Question

when can a convicted felon possess a firearm
JA: Because laws vary from place to place, can you tell me what state this is in?
Customer: Texas
JA: Have you talked to a lawyer yet?
Customer: not yet
JA: Anything else you want the lawyer to know before I connect you?
Customer: my feony probation for DWI ended in May 2012
Submitted: 19 days ago.
Category: Criminal Law
Expert:  Barrister replied 19 days ago.

Hello and welcome! My name is ***** ***** I am a licensed attorney and will try my best to help with your situation. There may be a slight delay in my responses as I research statutes or ordinances and type out an answer or reply, but rest assured, I am working on your question.

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Under Texas state law a convicted felon may possess a firearm in the residence, in which he lives, once five years have elapsed from the date his sentence was discharged. This means the later of release from prison or parole. Currently the only way for a felony to regain his rights to possess a firearm outside the home in Texas is through full Governor's pardon. However, this is not true under federal law.

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When it comes to firearm rights, it is important to always remember that there are two rights. First, the state right, and second a federal right. While the state expungement statute may restore a state right, the federal right has not been restored. Or at least this is the position of the federal government in regards ***** ***** state expungement statutes. The U.S. Department of Justice position on this has always been that for these types of expungement statutes no federal firearm rights shall be restored.

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Although convicted felons lose their right to gun ownership under federal law, they can apply to the Bureau of Alcohol, Tobacco and Firearms for what is termed "relief" from the disability of not being able to purchase or own a gun. In order to have any such relief granted the circumstances of their crime and felony conviction must warrant the opinion that they do not present any danger to the safety of the public. However, even this situation is complicated because the ATF is currently prohibited from "the expending of any funds to investigate or act upon applications for relief from federal firearms disabilities submitted by individuals."

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With that said, the ATF does not currently have any funding to "act upon applications for relief from federal firearms disabilities submitted by individuals" effectively making this option of restoring felon gun ownership null and void. The law is there, but they intentionally don’t fund it to prevent its enforcement.

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So while you might not be in violation of state law for possessing a gun, it appears that it would still be a violation of federal law and if you were charged with some type of federal offense, like mail fraud for example, then they could tack on a charge of felon in possession. Also if you were to go through a licensed FFL dealer, the application would likely be denied since it goes through the ATF. But if you bought a gun privately, and were arrested for some type of state offense in your home, then they couldn't charge you for felon in possession because you are not a felon under state law due to the expungement.

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thanks

Barrister

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