Houston Felon in Possession of Firearm Attorney

Felon in Possession of Firearm in Houston, TX

Felon in possession of a firearm is a third-degree felony under Texas Penal Code Section 46.04, carrying 2 to 10 years in prison and $10,000 in fines. Federal charges under 18 U.S.C. § 922(g) carry up to 10 years—or a 15-year mandatory minimum under the Armed Career Criminal Act. Cory Roth Law Office aggressively defends Houston clients against both state and federal felon-in-possession charges.

Being caught with a firearm after a felony conviction is one of the most heavily prosecuted weapons offenses in Harris County and the Southern District of Texas. Both state and federal prosecutors treat felon-in-possession charges as priority cases, and the consequences of conviction can be devastating—potentially adding a decade or more to your time behind bars. At Cory Roth Law Office, Attorney Cory Roth provides aggressive defense for individuals facing gun crime charges at every level, from state court proceedings in Harris County to federal prosecutions in Houston’s federal courthouse.

Understanding Felon in Possession Charges in Texas and Federal Law

Felon-in-possession charges create a uniquely dangerous legal situation because the same conduct can violate both Texas state law and federal law simultaneously. This means you could face prosecution in state court, federal court, or both—each with its own set of penalties, procedures, and consequences. Understanding the differences between these two legal frameworks is essential to mounting an effective defense.

Texas Penal Code Section 46.04: Unlawful Possession of Firearm

Under Texas Penal Code Section 46.04, a person convicted of a felony commits an offense if they possess a firearm at any time within five years following their release from confinement or community supervision—whichever date is later. After that five-year period, Texas law permits limited firearm possession, but only on the premises where the person lives. Possessing a firearm anywhere else—in a vehicle, at a friend’s house, in public—remains illegal regardless of how much time has passed since your conviction.

Section 46.04 also prohibits firearm possession by individuals convicted of Class A misdemeanor domestic violence offenses involving a family or household member for five years following release. Additionally, individuals subject to active protective orders under the Texas Family Code are prohibited from possessing firearms for the duration of the order. Violations involving felony domestic violence convictions carry particularly severe consequences because they trigger both state and federal firearm prohibitions.

Federal Law: 18 U.S.C. § 922(g)

Federal law under 18 U.S.C. § 922(g) imposes a far broader and more permanent prohibition. Any person convicted in any court of a crime punishable by imprisonment for more than one year is permanently prohibited from possessing, shipping, transporting, or receiving any firearm or ammunition. Unlike Texas law, there is no five-year waiting period, no home-premises exception, and no pathway to automatic restoration of rights. The federal prohibition is lifetime and absolute unless a formal presidential pardon or qualifying state restoration of rights is obtained.

This creates a critical conflict that traps many Texans. After five years, Texas law may allow you to keep a firearm at home, but federal law still categorically prohibits your possession of any firearm anywhere. Federal prosecutors in Houston’s Southern District of Texas regularly charge individuals who believed they had regained their gun rights under state law but remained prohibited under federal law. The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) actively investigates these cases throughout the Houston metropolitan area.

The Armed Career Criminal Act (ACCA)

The most devastating federal sentencing enhancement for felon-in-possession charges comes from the Armed Career Criminal Act, codified at 18 U.S.C. § 924(e). Under ACCA, if you have three or more prior convictions for violent felonies or serious drug offenses, you face a mandatory minimum sentence of 15 years in federal prison—with a maximum of life imprisonment. The judge has zero discretion to impose a lower sentence. According to the United States Sentencing Commission, the average sentence for ACCA-enhanced cases exceeds 200 months—over 17 years.

ACCA predicates do not need to be recent. A drug conviction from decades ago or a robbery conviction from your twenties can qualify as an ACCA predicate in your fifties. Prior aggravated assault convictions, burglary convictions, and drug trafficking convictions are commonly used as ACCA predicates. Challenging whether your prior convictions actually qualify under ACCA’s categorical approach analysis is one of the most critical aspects of federal felon-in-possession defense.

Who Is Prohibited From Possessing Firearms?

Convicted Felons

Any person convicted of a felony offense—whether at the state or federal level—faces firearm restrictions under both Texas and federal law. Under Texas law, the prohibition applies for five years after release, with limited home-premises possession thereafter. Under federal law, the prohibition is permanent. The definition is broad: you do not need to have been sentenced to more than one year—only convicted of a crime punishable by more than one year of imprisonment. This means many third-degree felony and even some state jail felony convictions trigger the federal prohibition.

Domestic Violence Offenders

Individuals convicted of Class A misdemeanor assault involving a family or household member are prohibited from possessing firearms for five years under Texas law. Under the federal Lautenberg Amendment, any misdemeanor crime of domestic violence conviction triggers a lifetime federal firearm prohibition—even a bodily injury assault conviction against a family member. This means a misdemeanor domestic violence conviction carries the same permanent federal firearm consequences as a felony conviction.

Persons Subject to Protective Orders

Individuals under active protective orders related to domestic violence or stalking are prohibited from possessing firearms under both Texas Penal Code Section 46.04(c) and federal law. The Texas prohibition lasts for the duration of the order. The federal prohibition under 18 U.S.C. § 922(g)(8) similarly restricts firearm possession while the order remains active.

Criminal Street Gang Members

Under Section 46.04(a-1), members of criminal street gangs as defined by Texas Penal Code Section 71.01 commit a Class A misdemeanor offense if they carry a handgun in a motor vehicle or watercraft. This provision was added alongside Texas’s constitutional carry law to address concerns about armed gang activity on Houston streets and highways.

Other Federally Prohibited Persons

Federal law extends firearm prohibitions beyond convicted felons to include fugitives from justice, unlawful users of controlled substances, individuals adjudicated as mentally defective or committed to mental institutions, undocumented aliens, persons dishonorably discharged from the armed forces, and individuals who have renounced U.S. citizenship. Each category creates independent grounds for federal prosecution under 18 U.S.C. § 922(g).

Penalties for Felon in Possession of a Firearm

Texas State Penalties

Under Texas law, unlawful possession of a firearm by a convicted felon is a third-degree felony carrying 2 to 10 years in the Texas Department of Criminal Justice and fines up to $10,000. Possession violations by individuals with domestic violence convictions or active protective orders are classified as Class A misdemeanors carrying up to one year in county jail and fines up to $4,000. If the defendant has prior felony convictions beyond the predicate offense, the charge may be enhanced to a second-degree felony carrying 2 to 20 years imprisonment.

Federal Penalties

A federal conviction under 18 U.S.C. § 922(g) carries up to 10 years in federal prison and fines up to $250,000. Federal sentencing guidelines assign base offense levels between 12 and 26, producing guideline ranges from approximately 10 to 78 months depending on criminal history and case-specific factors. If the Armed Career Criminal Act applies, the mandatory minimum jumps to 15 years with a potential maximum of life imprisonment. According to federal sentencing data, nearly 98% of individuals convicted under Section 922(g) receive prison sentences.

Collateral Consequences

A felon-in-possession conviction compounds the existing consequences of your prior felony record. You face permanent loss of any remaining firearm rights, additional restrictions on future employment and housing, potential deportation for non-citizens, and the social stigma of multiple felony convictions. A federal conviction also carries supervised release following imprisonment—typically three to five years—during which any violation can result in additional imprisonment. These cascading consequences make aggressive defense against felon-in-possession charges essential.

State vs. Federal Prosecution: Where Will Your Case Be Filed?

Whether your felon-in-possession case is prosecuted in Texas state court or federal court has enormous implications for potential sentencing, available defenses, and case strategy. Understanding the factors that influence this decision helps you prepare for the legal battle ahead.

Factors Favoring Federal Prosecution

Federal prosecutors in the Southern District of Texas are more likely to adopt felon-in-possession cases that involve firearms connected to drug trafficking or interstate drug trafficking operations, defendants with extensive violent criminal histories who qualify for ACCA enhancement, cases involving multiple firearms or large quantities of ammunition, firearms used in connection with other violent crimes such as aggravated robbery or homicide, and cases referred by federal agencies like the ATF, DEA, or FBI. Federal prosecution typically results in longer sentences because federal guidelines are generally harsher than Texas state sentencing ranges.

Factors Favoring State Prosecution

Cases more likely to remain in Harris County state court include straightforward possession cases without aggravating factors, defendants with limited criminal history who do not qualify for ACCA, cases discovered during routine state law enforcement activity such as traffic stops, situations where the firearm was not connected to other criminal conduct, and cases where the interstate commerce element is difficult to establish. State prosecution under Section 46.04 generally provides more sentencing flexibility and greater opportunities for favorable plea negotiations.

Defense Strategies for Felon in Possession Charges

Challenging Possession

The prosecution must prove that you actually possessed the firearm—either through actual physical possession or constructive possession. Constructive possession requires proof that you knew the firearm was present, had the ability to exercise control over it, and intended to exercise that control. When a firearm is found in a shared residence, a vehicle with multiple occupants, or a common area accessible to several people, the constructive possession defense becomes viable. The principles we apply in drug possession cases translate directly to weapons cases—proximity alone does not establish possession.

Fourth Amendment Search and Seizure Challenges

Many felon-in-possession cases begin with a traffic stop, a home search, or a Terry stop that may have violated your Fourth Amendment rights. If law enforcement lacked reasonable suspicion for the initial stop, conducted a search without probable cause or a valid warrant, or exceeded the scope of a lawful search, the firearm evidence may be suppressed. Without the weapon, the prosecution’s case collapses. Attorney Cory Roth files comprehensive suppression motions in every case where constitutional violations may have occurred, challenging illegal stops, warrantless searches, and coerced consent.

Challenging the Prior Felony Conviction

The state or federal government must prove your prior felony conviction as an element of the offense. If your prior conviction was obtained unconstitutionally—for example, without effective assistance of counsel or through a plea that was not knowing and voluntary—it may not serve as a valid predicate. In federal ACCA cases, the “categorical approach” analysis examines whether your specific prior conviction actually meets the federal definition of a violent felony or serious drug offense. Many state convictions that appear to qualify under ACCA actually fail this technical analysis. This complex but powerful defense strategy requires attorneys with deep knowledge of federal sentencing law.

The Knowledge Defense After Rehaif

In the landmark 2019 decision Rehaif v. United States, the U.S. Supreme Court held that the government must prove the defendant knew they belonged to a category of persons prohibited from possessing firearms. This means federal prosecutors must establish that you knew you had been convicted of a felony—not merely that you had in fact been convicted. While most defendants clearly know their felony status, this defense applies in situations involving confusion about the legal classification of a prior offense, belief that rights were restored through pardon or expungement, uncertainty about whether a prior conviction qualifies as a felony under federal standards, and out-of-state convictions with different classification schemes.

Restored Rights Defense

If your civil rights—including the right to vote, hold office, and serve on a jury—have been restored under state law, you may have a defense to federal prosecution under certain circumstances. Texas does automatically restore some civil rights upon completion of a sentence, but the restoration of firearm rights requires separate legal action. Whether a state restoration of rights defeats a federal prosecution depends on complex legal analysis that varies by circuit court. Our defense team evaluates every possible avenue for establishing that your rights were restored before the alleged possession occurred.

Self-Defense and Necessity

While the defense of necessity is rarely successful in felon-in-possession cases, extraordinary circumstances may justify temporary possession of a firearm. If you picked up a weapon to defend yourself or others against an imminent deadly threat and abandoned the weapon as soon as the threat passed, a necessity defense may apply. Under Texas Penal Code Chapter 9, the justification provisions apply broadly, and our aggravated assault defense attorneys have experience presenting self-defense arguments in complex weapons cases.

Felon in Possession and Related Criminal Charges

Felon-in-possession charges rarely stand alone. They typically accompany other serious criminal allegations, creating a web of charges that must be defended simultaneously. The interaction between felon-in-possession charges and companion offenses significantly impacts overall sentencing exposure and defense strategy.

Drug crime charges frequently accompany felon-in-possession when firearms are discovered during narcotics investigations. Possession of controlled substances combined with a firearm can trigger federal prosecution and dramatically enhanced penalties. Possession with intent to deliver alongside firearm possession invokes mandatory consecutive sentences under federal law—adding 5 to 25 years to drug trafficking penalties.

Unlawful carrying of a weapon charges may be filed alongside felon-in-possession when the circumstances involve prohibited carrying beyond the base possession offense. Possession of prohibited weapons charges compound the situation when illegal weapon types are involved. Assault with a deadly weapon or homicide charges involving firearms create the most severe combined sentencing exposure, with manslaughter charges adding further complexity.

Theft charges involving stolen firearms carry additional penalties. Illegal sale of firearms by convicted felons triggers both state and federal trafficking charges. Even property crime charges discovered alongside weapons possession can serve as ACCA predicates in future federal prosecutions.

The Five-Year Rule: Texas vs. Federal Law Conflict

One of the most dangerous legal traps for Texas felons involves the difference between state and federal firearm laws after the five-year waiting period expires.

Texas Penal Code Section 46.04(a)(2) allows convicted felons to possess firearms on the premises where they live once five years have elapsed from their release from confinement or supervision. Many Texans interpret this as full restoration of their gun rights—and they are wrong. Federal law under 18 U.S.C. § 922(g) contains no such exception. The federal prohibition is permanent, regardless of any state-law provisions. This means a Texas felon who legally possesses a firearm at home under state law is simultaneously committing a federal felony punishable by up to 10 years in federal prison.

Federal prosecutors in Houston are well aware of this conflict and have prosecuted numerous defendants who genuinely believed they were acting within the law. The Texas Department of Public Safety provides information about state licensing requirements, but state agencies cannot provide guidance on federal firearms prohibitions. If you have a prior felony conviction and are uncertain about your legal right to possess firearms, consulting with an experienced gun crime attorney before taking any action is essential.

The Felon in Possession Defense Process

Free Case Evaluation

Your defense begins with a thorough case evaluation where Attorney Cory Roth examines the circumstances of your arrest, reviews your criminal history, and determines whether your case involves state charges, federal charges, or the potential for both. We analyze whether ACCA may apply, identify suppression opportunities, and develop a preliminary defense strategy. This consultation is completely free and confidential.

Criminal History Analysis

In felon-in-possession cases, your criminal history is as important as the current charge. We conduct a comprehensive analysis of every prior conviction, examining whether each conviction actually qualifies as a predicate felony under state and federal law, whether any convictions were obtained unconstitutionally, and whether rights restoration arguments are available. For federal cases, this analysis extends to the categorical approach evaluation of potential ACCA predicates—a technical process that can mean the difference between a 5-year guideline sentence and a 15-year mandatory minimum.

Pre-Trial Motions and Negotiations

We file comprehensive pre-trial motions challenging the legality of searches, the admissibility of evidence, and the sufficiency of the government’s proof. In state cases, we negotiate with Harris County prosecutors for reduced charges, favorable plea agreements, or outright dismissals when the evidence is weak. In federal cases, we engage with Assistant United States Attorneys early and aggressively, presenting mitigating factors and legal defenses that can influence charging decisions and plea offers.

Trial Defense

When pre-trial resolution is not possible or not in your best interest, we take felon-in-possession cases to trial with thorough preparation. We challenge every element the prosecution must prove—the prior conviction, the possession, the knowledge—and present affirmative defenses when available. Our trial preparation includes jury selection strategy, expert testimony coordination, and compelling closing arguments that create reasonable doubt.

Restoring Firearm Rights After a Felony Conviction

Understanding the pathways to restoring firearm rights is important for anyone with a prior felony conviction in Texas, though the process is complex and the options are limited.

Texas State Rights Restoration

Under Texas law, convicted felons may possess a firearm on their own premises—and only their own premises—once five years have elapsed from release from confinement or supervision. This is an automatic provision that does not require any court action. However, this limited restoration does not extend to carrying firearms outside the home, does not authorize possession of firearms during the five-year waiting period, and critically does not override the permanent federal prohibition.

Federal Rights Restoration

Federal firearms rights can be restored through a presidential pardon that specifically restores gun rights, a qualifying state restoration of civil rights (which varies by circuit court interpretation), or expungement of the predicate felony conviction. There is currently no federal administrative process for restoring gun rights, though proposed regulatory changes may create new pathways in the future. If you believe you may be eligible for rights restoration, consult with our legal team before possessing any firearm.

Why Choose Cory Roth Law Office for Felon in Possession Defense

State and Federal Court Experience

Felon-in-possession cases require an attorney comfortable in both Texas state courts and federal court. Attorney Cory Roth handles felony defense cases in Harris County criminal courts and understands the procedures, judges, and prosecutors in both jurisdictions. This dual-court experience is essential because your case could be prosecuted in either forum—and the defense strategies differ significantly between state and federal proceedings.

Comprehensive Criminal History Evaluation

The outcome of a felon-in-possession case often depends on detailed analysis of prior convictions, ACCA predicates, and rights restoration issues—not just the facts of the current arrest. We invest significant time analyzing your complete criminal history to identify every available defense, challenge, and mitigating factor that could reduce your sentencing exposure.

Aggressive Advocacy at Every Stage

From the initial arrest through trial or resolution, Attorney Cory Roth fights aggressively for your rights. We file suppression motions challenging unconstitutional searches, negotiate relentlessly for reduced charges and sentences, and prepare thoroughly for trial when litigation serves your best interest. Every decision is guided by one objective: achieving the best possible outcome for your case.

Contact Cory Roth Law Office Today

Felon-in-possession charges carry some of the most severe penalties in Texas and federal criminal law. Whether you face a state third-degree felony or a federal charge with ACCA enhancement threatening a 15-year mandatory minimum, the stakes could not be higher. Attorney Cory Roth provides the aggressive, knowledgeable defense you need to protect your freedom.

Our Houston criminal defense practice handles felon-in-possession cases from initial arrest through trial and appeal. We defend clients against both Texas state charges under Section 46.04 and federal charges under 18 U.S.C. § 922(g), developing comprehensive strategies that address every aspect of your case. Whether your charges involve companion offenses like drug crimes, assault, or robbery, we build your defense from every available angle.

Do not wait to seek legal representation. The decisions you make in the days following a felon-in-possession arrest will shape the outcome of your case. Contact Cory Roth Law Office today for a free, confidential consultation.