Texas Penal Code 46.04: Unlawful Possession of a Firearm

Texas unlawful possession of a firearm, defined in Penal Code Section 46.04, bars four groups of people from having guns: convicted felons, people convicted of misdemeanor assault involving family violence, people subject to an active protective order, and criminal street gang members who carry a handgun in a vehicle or watercraft. Depending on which category applies, a violation is either a Class A misdemeanor or a third-degree felony, and federal law often imposes a longer or permanent ban on top of the Texas rule.¹

If You Have a Felony Conviction

A Texas felony conviction restricts your firearm rights in two phases. The first phase is a total ban. You cannot possess a firearm anywhere, and the ban runs from the date of conviction until five years after the later of your release from confinement or your discharge from community supervision, parole, or mandatory supervision.¹ The “whichever is later” language controls the math. Three years in prison followed by five years on parole means the five-year clock does not start until the day parole ends.

Once the five-year period closes, the Texas restriction loosens but never expires. You may possess a firearm only at the premises where you live. Anywhere else is still off-limits for the rest of your life under state law.

The word “premises” is defined narrowly. Penal Code Section 46.01 limits it to a building or a portion of a building and specifically excludes driveways, sidewalks, parking lots, parking garages, and other outdoor areas.¹ A gun in your car, your front yard, or a detached garage that is not part of the main structure violates the law even after the five-year period has passed.

If You Have a Family Violence Assault Conviction

Section 46.04(b) is narrower than people assume. It applies only when the underlying conviction is assault under Section 22.01, is punishable as a Class A misdemeanor, and involves a member of your family or household.¹ Not every offense labeled “family violence” meets those conditions.

When it does apply, the ban is total for five years. You cannot possess a firearm anywhere during that period, with no home exception. The five years run from the later of your release from confinement or your release from community supervision. Once the period ends, the Texas restriction under this subsection ends with it. Federal law may not, as discussed below.

“Family,” “household,” and “member of a household” track the definitions in Chapter 71 of the Texas Family Code, which reach relatives by blood or marriage, current and former housemates, and the parents of a shared child.

If You Are Subject to an Active Protective Order

If a court has issued a qualifying protective order against you under the Texas Family Code or Code of Criminal Procedure, you cannot possess a firearm for as long as the order is in effect.¹ The restriction turns on notice: you must have received notice of the order before a possession charge can stand. Handguns, rifles, and shotguns are all covered. When the order expires or a court vacates it, this restriction lifts.

One narrow exception exists. A sworn, full-time peace officer employed by a state agency or political subdivision is not prohibited by Section 46.04(c) from possessing a firearm while actively engaged in that employment, even if subject to a protective order.¹ Department policy and other laws may still restrict that officer; this statute does not.

If You Are a Gang Member Carrying in a Vehicle

Subsection (a-1) targets a different situation and does not require any prior conviction. A member of a criminal street gang, as defined in Penal Code Section 71.01, commits an offense by carrying a handgun on or about their person in a motor vehicle or watercraft.¹ Gang membership plus a handgun in the vehicle is enough.

Penalties

Punishment depends on which part of the statute applies:

Felon in possession under Subsection (a) is a third-degree felony, carrying 2 to 10 years in the Texas Department of Criminal Justice and a fine of up to $10,000.²
A gang member carrying a handgun in a vehicle under Subsection (a-1) commits a Class A misdemeanor, carrying up to one year in county jail and a fine of up to $4,000.³
Possession after a qualifying family violence conviction under Subsection (b) is a Class A misdemeanor.
Possession in violation of a protective order under Subsection (c) is a Class A misdemeanor.

Why Federal Law Often Matters More

Texas restrictions and federal restrictions operate independently, and the federal rules are usually stricter. Even when your state ban expires, the federal ban may not.

Under 18 U.S.C. § 922(g)(1), anyone convicted of a crime punishable by imprisonment for more than one year cannot possess a firearm or ammunition that has traveled in interstate commerce.⁴ Because virtually all commercially manufactured firearms and ammunition have crossed state lines, this functions as a blanket ban. Every Texas felony qualifies. There is no five-year expiration and no home-only exception at the federal level; the ban is permanent unless you receive a presidential pardon or your conviction is expunged or set aside.

For domestic violence, 18 U.S.C. § 922(g)(9) prohibits anyone convicted of a misdemeanor crime of domestic violence from possessing firearms or ammunition, with no expiration.⁴ When the Texas five-year period in Section 46.04(b) ends, the federal prohibition keeps running. Section 922(g)(8) parallels the Texas protective order rule under federal jurisdiction.

One trap catches people regularly. Federal law uses a broader definition of “conviction” than Texas does. Successfully completed deferred adjudication for a felony may not count as a conviction under Section 46.04, but a guilty plea leading to deferred adjudication can still count as a conviction under federal law. Clearing your state record does not necessarily clear the federal prohibition.

1
State of Texas. Texas Penal Code 46.04 – Unlawful Possession of Firearm
2
State of Texas. Texas Penal Code 12.34 – Third Degree Felony Punishment
3
State of Texas. Texas Penal Code 12.21 – Class A Misdemeanor
4
Office of the Law Revision Counsel. 18 USC 922 – Unlawful Acts