Menu

By Benson Varghese

Published on: November 16th, 2013 at 11:09 AM
Last Updated: September 9th, 2020 at 4:01 PM

Unlawful possession of a firearm by a felon or “UPF” occurs when a person who has committed a felony or an assault-family violence offense in the last five years possesses a firearm. Unlawful possession of a firearm also occurs when felon possesses a firearm outside their home after the fifth anniversary of the end of their sentence (probated or otherwise).

In other words, under Texas law, a felon may not possess a firearm in the first five years after they’ve been convicted of a  felony. At the end of the five years, the felon may only possess a firearm within his residence. However, it’s important to point out that, under federal law, felons are prohibited from ever possessing a firearm. See Felon in Possession of Firearm.

Note that UPF is a distinct offense from UCW or other airport gun cases.

What is the punishment for Unlawful Possession of a Firearm?

If the possession is by a felon in the first five years after the sentence, the offense is a third degree felony punishable by 2 to 10 years in prison. Other unlawful possession cases are Class A misdemeanors.

Elements of a Charge

The prosecution is required to prove: (1) the accused exercised actual care, control, or custody of the firearm; (2) he was conscious of his connection with it; and (3) he possessed the firearm knowingly or intentionally. Cude v. State, 716 S.W.2d 46, 47 (Tex.Crim.App.1986). However, in a prosecution for unlawful possession of firearm, it is not necessary for State to prove weapon operational. Hutchings v. State, 333 S.W.3d 917, 922 (Tex. App. 2011).

What is the mental state requirement for Unlawfully Possessing a Gun in Fort Worth?

The statute does not set forth a mental state requirement. However, the Court of Criminal Appeals has ruled that since the statute does not plainly dispense with the mental state requirement, the state must prove the defendant intentionally, knowingly or recklessly possessed the firearm. See Hazel v. State, 534 S.W.2d 698, 702 (Tex. Crim. App. 1976).

Unlawful Possession of Body Armor by a Felon

Pursuant to Penal Code Section 46.041, it is a third-degree felony for a someone convicted of a felony to subsequently possess metal or body armor.

Felony Convictions

If a person is convicted of a felony, he or she may not possess a firearm until the later of:

  • five years after being released from parole,
  • five years after being released from probation, or
  • for five years after a felony conviction.

During that time frame, he or she may not possess a firearm anywhere, including in their own home.

Family Violence Convictions

After the initial prohibition period has passed, they may possess a firearm in their own home.

Similarly, once a person has been convicted of Assault Causing Bodily Injury Against a Family Member
-for five year’s after being released for the offense
-for five years after completing probation for the offense.

Felons Lose Gun Rights under Federal Law

Under federal law, a felon may not possess, ship, transport, or receive any firearm or ammunition. See 18 USC 922(g).

Setting Aside a Felony Conviction through Executive Clemency or a Pardon

One way to restore federal firearm rights after a state conviction is through a full pardon. Under Code of Criminal Procedure Article 48.01, the Governor has the power to pardon someone after they have been convicted. A pardon restores an individual’s right to bear arms. The Texas Board of Pardons and Paroles may also consider recommending a pardon to restore the right to receive, possess, bear and transport firearms. In order to receive such a recommendation, the application must be accompanied by a letter from an employer or prospective employer that outlines the need to have those rights restored in order to gain or maintain employment. In fact, under Texas Administrative Code Section 143.12, the applicant is required to show “extreme and unusual circumstances” in order to receive a recommendation to have firearm rights restored.

Setting Aside a Felony Conviction After Discharge from Probation

In Cuellar v. State, 70 S.W.3d 815, the Court of Criminal Appeals held that once a conviction has been set aside under Article 42.12 Sec. 20, it releases a person from all penalties and disabilities resulting from the crime of offense. The result of a discharge under Article 42.12 Section 20 is that the conviction “is wiped away, the indictment dismissed, and the person is free to walk away from the courtroom ‘released from all penalties and disabilities’ resulting from the conviction.” In other words, if a felony conviction has been set aside under this section, that person may lawfully possess and transport firearms and ammunition.

Furthermore, once judicial clemency has been granted in Texas under Article 42.12 Section 12, a person’s federal right to possess a firearm is also restored.

Defend Against Charges of Unlawful Possession of a Gun By a Felon in Fort Worth

Call a tenacious and experienced lawyer if you are facing allegations for unlawful possession of a firearm as a felon in Fort Worth.