Texas Law Shield Newsletter

When Do I Lose My Gun Rights?

 

When does someone lose the legal right to purchase or possess a firearm? Can a person get their firearms rights restored, and if so, when and how? What legal infractions (serious or minor) affect a person’s legal rights and in particular their firearms rights?

 

These types of questions are some of the more frequent asked by members. This means that many may not understand exactly what the legal consequences are of criminal punishments or the present ramifications of their pleading to a crime in the past. During a criminal proceeding a district attorney (D.A. for short) may have attempted to persuade someone that a guilty plea is the fastest way to put a criminal charge behind them and move on with their life, and that it would not have long lasting effects.

 

BE WARNED, not understanding the repercussions of a plea agreement could lead to economic difficulties, reducing what types of careers a person can pursue, making it difficult to live where they want, and importantly losing the ability to purchase a gun, or to even possess a gun outside of their home. This is intense but important information.

 

This article, the first in a two part series, will cover what types of crimes and outcomes can affect a person’s firearms rights. The follow-up article will cover when, how, and if someone can clear their record and restore their rights.

 

What are the types of crimes in Texas?

 

In Texas, there are two categories of crimes: felonies and misdemeanors.  A felony is a serious crime that the state has determined is possibly deserving of prison for a long time. A misdemeanor is a less serious crime which could possibly end with only a fine. For the purposes of a person’s gun rights, including their right to get or keep a concealed handgun license, both can have a devastating effect. While there are different classes of felonies, all felony convictions (but not deferred adjudications which will be discussed) are treated the same for purposes of determining what firearms rights a person does or does not have. However, the different classes of misdemeanors in Texas can impact a person’s firearms rights in different ways. These misdemeanors can be Class A, B, or C misdemeanors. Additionally, a finding of family violence on a misdemeanor is fundamentally different than other types of misdemeanors. Therefore, the three categories of crimes which will be discussed are felonies, misdemeanors with a finding of family violence, and Class A, Class B, or Class C misdemeanors.

 

What happens if a person is charged?

 

If a person finds themself charged with a felony offense
in Texas, the possible outcomes from a grand jury are:
– No-bill, where the grand jury does not find probable cause that a person committed a crime. The charges will end, unless the D.A. finds additional evidence to present the case again.

– True bill, where the grand jury does find probable cause that a person committed a crime. An indictment will be filed against them and the case will continue to the next court phase.

 

If a person finds themself charged with a misdemeanor, there is no requirement that the grand jury review the case and the D.A. will proceed with the prosecution.
The possible outcomes of a criminal case, regardless of whether it is a felony or a misdemeanor, are as follows:

 

– Dismissal of the charge because it is dropped by the D.A. This can happen at any point before the rendering of a verdict at the D.A.’s discretion. If the case is dismissed before the jury is sworn in, the case may be refiled and prosecuted if it is before the statute of limitations ends.

 

– Pre-trial diversion or intervention, sometimes also known as deferred prosecution. This is a program that is sometimes available as part of a negotiation agreement with the D.A. that results in a dismissal if the terms of the agreement are completed successfully. If a person violates the agreement, the D.A. can continue to prosecute the case against them.

 

– Deferred adjudication where a person pleads guilty to the crime but the judge withholds accepting the plea. Instead the court will set forth certain requirements of court supervision for a certain number of years, months, or days, which could include community service, fines, education, counseling, etc.  If a person completes the court’s requirements, the case will be dismissed and no conviction will result from their guilty plea.  If they violate the court’s orders, their guilty plea will be entered and they will be convicted.

 

–  Guilty or “No Contest” pleas will have the same impact on a person’s criminal history, a conviction and sentencing. However, a no contest or “Nolo Contendre” plea cannot be considered an admission of guilt and used against them in a civil suit based on the act for which they were criminally prosecuted.

 

– Guilty verdict after trial that ends in a conviction, after which a person will be sentenced.

 

– Not guilty verdict after trial is an acquittal and will restore a person’s freedom from court entanglements for that criminal charge.

 

What is a conviction?

 

A finding of guilty after a plea, a trial, or a broken deferred adjudication, is a conviction that will follow a person forever (except in the rare occasion of a pardon). There are a number of reasons why receiving a conviction for a crime can be a bad thing. Punishment for a conviction can be fines and court costs, probation, and/or incarceration in jail or prison. A conviction can be detrimental in the future as well. Being charged and convicted of the same crime a second time can lead to harsher punishment. Also all sorts of people screen for convictions including employers, organizations, and even financial institutions. Importantly, a conviction will impact a person’s right to purchase or possess a firearm as well as their ability to qualify for a CHL.

 

What happens if a person has received a felony conviction?

 

Receiving any felony conviction will strip a person of many of their legal rights. Amongst others, they permanently lose the right to purchase a firearm.  Further, under both state and federal law, they cannot possess a firearm.

Interestingly, Texas allows for an exception that after five years from release from confinement, or release from supervision under community supervision, parole, or mandatory supervision, whichever comes later, a felon may possess a firearm only at the premises where they live. However, firearm possession not on the premises where that person lives, i.e., hunting trip, going to the shooting range, or other similar activities would continue to be illegal under state law. Federal law states that a convicted felon cannot possess a firearm anywhere, under any circumstances. A person is also permanently disqualified from having a concealed handgun license, as being eligible to purchase a firearm is a requirement for a Texas CHL.

 

It “ain’t” a felony anymore.

 

What about a crime that was a felony (like marijuana possession was in the 1960s) that is today a misdemeanor or even legal? The Texas legislature weighed in on this so that a person with a felony conviction for a crime that is no longer classified as a felony is no longer a disqualified felon for firearms purposes. This means that they are no longer a felon for purposes of possessing a firearm under state law. However, the federal law has no such exception.

What happens if a person has received deferred adjudication for a felony?

 

Even though a deferred adjudication will help a person avoid a felony conviction, it does not result in a completely blank slate. A deferred adjudication will have probationary requirements; and unless it is sealed, an arrest and the fact a person was under court supervision will continue to show up on that person’s record. For purposes of a deferred adjudication for a felony, until it is completed, a person remains under indictment for the felony. This means that they will not be able to purchase a firearm, and will likely have their CHL revoked until they have completed the terms of the deferred adjudication and become re-eligible. Further, as a condition of any deferred adjudication, the court may order someone not to possess any firearms. Once the court supervision is successfully completed, they will be discharged and the case dismissed.  This means that that person will be able to lawfully possess and purchase firearms under both state and federal law. Additionally, for many crimes, a person again becomes eligible for a CHL 10 years after the date the court ordered the deferred adjudication.

However certain crimes, even though a person received a deferred adjudication, will still disqualify them from ever obtaining a CHL. These crimes include murder, manslaughter, criminally negligent homicide, kidnapping, aggravated kidnapping, false imprisonment, felony sexual offenses, felony assaultive offenses, robbery, aggravated robbery, felony violation of a protective order, and burglary of a habitation (including the intent to commit another felony during the burglary).

 

What happens if a person has received a conviction on a misdemeanor with a finding of family violence?

 

Any Class A, Class B, or Class C misdemeanor conviction where the court entered a finding that the criminal act constituted family violence will prevent a person from purchasing firearms from a licensed firearms dealer for the remainder of their life. As a result, they will be disqualified from obtaining a CHL, since being able to purchase a firearm is a requirement for CHL eligibility. A conviction for a Class A misdemeanor which includes a finding of family violence will also prevent anyone from possessing a firearm for five years from their release from confinement, release from probation, parole, or mandatory supervision, whichever comes later. Unlike a felony conviction, however, once this period has passed Texas law will allow the person to possess firearms outside of the premises at which they live. Unfortunately, federal law imposes a permanent prohibition on firearms possession, just as it does for convicted felons.

What happens if a person has received deferred adjudication on a misdemeanor with a finding of family violence?

 

deferred adjudication on a misdemeanor crime with a finding of family violence will prohibit a person from purchasing a firearm or obtaining a CHL while the deferred adjudication is pending. Once the deferred adjudication has been completed, they will be able to purchase and possess firearms again.  However they will be required to wait for five years after the date of the deferred adjudication to regain their eligibility to have a CHL.

What happens if a person has received a conviction or deferred adjudication on a Class A, Class B, or Class C misdemeanor with no finding of family violence?

 

Class A, Class B, or Class C misdemeanor conviction or deferred adjudication will not prohibit a person’s purchase or possession of firearms, excepting findings of family violence as outlined above. Although a misdemeanor conviction or deferred adjudication will not affect their firearms rights, it could impair their ability to obtain a Texas CHL.
Any conviction or deferred adjudication for a Class A or Class B misdemeanor, or a Class C charge of disorderly conduct will disqualify a person from obtaining a CHL or suspend their CHL for five years.  Further, in a little known eligibility requirement, the Texas DPS will not issue a CHL to, or will suspend the CHL of, a person who has twice been convicted or received deferred adjudication for Class A or Class B misdemeanors within 10 years of their application for crimes that involve the use of alcohol or controlled substances. This is because the law has deemed them to be a “chemically dependent person” and therefore unqualified for a Texas CHL.

As you can see, the negative ramifications of criminal punishments and sentences are far reaching and may have lifelong consequences. Stay tuned for our follow-up newsletter detailing what options may be available if you have found yourself continuously impacted by a criminal charge long, long ago.