Posted on 5/8/23

Although Texas has some of the most lenient firearm possession laws, prosecutors take unlawful possession of a firearm charge seriously. There are a few circumstances in which individuals cannot possess a firearm. Understanding how Texas handles firearm possession laws is essential for anyone wanting to own and carry a firearm.

Texas Penal Code 46.04

Texas Penal Code 46.04 is for three legal conditions that allow the state to charge a person with the crime of unlawful firearm possession. It is unlawful for convicted felons to possess a firearm before the fifth anniversary of their release from jail. Employees of the state of Texas cannot possess a firearm when they are under a protective or restraining order.


There are several types of legal defenses to the possession of a firearm. One of the most commonly used is that of self-defense. If you possessed a firearm to defend yourself, you could claim that you were engaging in lawful self-defense and needed to use the firearm to remain unharmed. You will need to provide witness testimony proving your story is true. You will also need to show that you did not possess the firearm until you needed it for self-defense.

Insufficient Evidence

Prosecutors need to prove every element of the crime beyond a reasonable doubt. Your attorney can present evidence that sheds doubt on some of the elements of the crime. Evidence could come in the form of eyewitness testimony and video surveillance. You may be able to show that the firearm in question was never listed under your name, which increases the likelihood that you did not possess the firearm.

Violation of Constitutional Rights

Law enforcement officers and prosecutors cannot violate a defendant’s constitutional rights. In some cases, law enforcement officers may have violated a defendant’s Fourth Amendment rights by conducting an unconstitutional search or seizure. Law enforcement officers must acquire a legally binding search warrant to search and seize a firearm. 

Also, law enforcement must allow those charged with a crime to speak to an attorney and read them their Miranda rights. If the law enforcement officer in your case did not let you contact an attorney or read you your rights, you could ask the court to remove any evidence gained from the unlawful search or seizure. Suppose a court dismisses evidence related to the firearm in question. In that case, the prosecution will not have enough evidence to prove that you were in unlawful possession of a firearm, and the case will likely be dismissed.

Discuss Your Case With a Criminal Defense Attorney

If you have been charged with unlawful possession of a firearm, it is crucial that you reach out to a skilled criminal defense attorney. You could be facing serious penalties, including jail time. Contact Abel Law Firm to schedule a consultation and learn how we can fight for you.

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