Does Domestic Violence Charges Affect Gun Ownership?

Yes domestic violence charges very much can affect gun possession and ownership. According to Federal and certain specific State Laws a “conviction” makes a big difference in the outcome. For Federal Law purposes a misdemeanor or felony domestic violence offense needs to be a conviction in order to prevent a person from possessing or owning a firearm.

For state law such as Texas, a completed misdemeanor or felony deferred adjudication probation will not prevent a person from possessing and owning a firearm under state or federal laws.

Domestic violence charges in certain states have court or protective orders, issued after arrest, instructing a person with guns to turn them over to law enforcement for a certain amount of time. The court order may be a temporary time period selected by the judge or the uncertain time period until the case is finally resolved.

The Gun Control Act of 1968

The importance of understanding this Gun Control Act of 1968 is what was going on at the time. Martin Luther King and Robert Kennedy had just been assassinated causing control activist to push for action. There was a popular need to more accountability and controlling who were allowed to get guns. Minors, drunk, mentally ill people, and convicted felons were being banned from gun possession.

The Lautenberg Amendment and Misdemeanor Domestic Violence

In the fall of 1996 a new amendment was introduced and passed almost unanimously. The Lautenberg Amendment amended the Gun Control Act of 1968 by including the ban of firearms by individual convicted of misdemeanor domestic violence. This includes receiving or possession firearms. This is the federal law on the matter and the determining factor describing that a misdemeanor domestic violence conviction makes a person ineligible to have a firearm.

What is the Texas Firearm Law and a Domestic Violence Conviction?

Texas has a law Unlawful Possession of a Firearm Tx Penal Code 46.04. This law allows a person convicted of a misdemeanor assault involving family violence to possess a firearm 5 years after the release from confinement or community supervision for a conviction.

This is not what the federal law says and does not protect someone from prosecution under the federal law discussed above. In these cases federal law often defers to the state to enforce their own law, but it is not a guarantee. Remember the Federal Law prohibits misdemeanor domestic violence convicts specifically from possessing or owning firearms.

Can I Own a Gun After Completing Deferred Adjudication Probation?

Yes. You can own a gun after successfully completing deferred adjudication probation. This probation, if completed successfully, is not a conviction. Title 18 U.S. Code § 922 specifies that a person convicted in any court of a misdemeanor crime of domestic violence shall not possess any firearm or ammunition.

Texas Concealed Carry and Domestic Violence

The law for attaining a Texas ‘License To Carry‘ (LTC) is different than for a person merely in possession or ownership of a firearm in Texas. Texas has changed what used to be a Concealed Handgun License (CHL). Texas now is an open carry state. A person must wait 10 years from the date an order of Deferred Adjudication was entered against the person. But depending on what the person was placed on deferred adjudication is a very important factor on qualification of a Texas LTC.

The following offenses disqualify a person from a License To Carry in Texas even if placed on Deferred Adjudication:

  • Homicide
  • Kidnapping
  • Trafficking a Person
  • Sexual Offenses
  • Assault Offenses (this includes Domestic Violence)
  • Robbery
  • Violation of Certain Conditions of Bond list in Tx Penal Code 25.07
  • Violation of Protective Order
  • Repeat Violation of Protective Order
  • Burglary of Habitation
  • Burglary of Habitation with Intent to Commit a Felony Other Than Felony Theft, or Committed a Felony Other Than Felony Theft
  • An offense under the laws of another state if the offense contains elements that are substantially similar to the elements of an offense listed above.

A LTC application will be rejected if the applicant is “currently restricted under a court protective order or subject to a restraining order affecting the spousal relationship, other than a restraining order solely affecting property interests.”?

Can I Get My Texas Gun Rights Restored?

Texans can apply to get their gun right restored by filling out a Restoration of Firearms Rights application. This application will not be accepted without a Governor’s Grant of a Full Pardon as well. This pardon application will need to be mailed to the Texas Board of Pardons and Paroles.

§143.12. Restoration of Firearm Rights
The board will consider recommending restoration of the right to receive, possess, bear, and transport in
commerce a firearm only in extreme and unusual circumstances which prevent the applicant from gaining a
livelihood, and only if the applicant:
(1) provides either proof of clearance by a previously granted full pardon or a request for such express
restoration in a pending application for a full pardon from jurisdiction(s) of the relevant conviction(s); and
(2) provides proof of application under the United States Code, Title 18, §925(c), for exemption, relief from
disabilities to the attorney general, and furnishes copies of all relevant applications and responses thereto
by the attorney general including any final actions by said attorney general.

A full pardon restores the right to vote, hold office and serve on a jury. It does not automatically restore the right to bear arms. Before possessing a firearm a person will want to check with the Federal Bureau of Tobacco and Firearms and the Texas Department of Public Safety.

A full pardon does not expunge a person’s criminal records for the incident. An expungement needs to be filed in a district court of the county of conviction.

I’m Married to a Felon, Do I have to Get Rid of My Guns?

This same scenario can apply to being married to a person convicted of domestic violence. The question revolves around who has possession of the firearms during the prohibited period. The felon or person with domestic violence on their record needs to protect themselves in a situation where they may be accused of illegal possession of a gun or guns. The safest and most obvious way would be to not have guns in the home. This may not be possible. Another option would be a gun safe where only the spouse or roommate has access into the safe and legal access to the guns.

This principle can apply to not only spouses but relatives staying in the home, roommates and tenants. A person who is legal to own gun can have them.

A gun owner needs to always be careful who has access to their guns regardless. A gun owner who is reckless and lets a dangerous or irresponsible person gain access to their guns can bring questions of liability or blame on themselves to answer for later.

What Do I Do With My Guns When a Protective Order is Issued Against Me?

Some jurisdictions will order a gun owner to surrender his or her guns to a nearby law enforcement agency to hold while a protective order is pending. The time period may vary. Once the gun owner wins the case or otherwise feels entitled to the possession of the guns a motion can be filed in the court that the protective order or domestic violence case is pending.

Do My Juvenile Records Prevent Me From Owning a Firearm?

Most likely juvenile records will not affect a person as an adult. The records become sealed. The exception to this would be if the juvenile had been certified to stand trial as an adult, was placed on a determinate sentence probation, committed to TJJD with a determinate sentence, or has a continuing obligation to register as a sex offender.

A juvenile’s records in most cases are sealed 2 years after discharge from probation or the last action of a case. Also, it may be at 19 years of age if never certified as an adult and no pending case or felony convictions in adult court.

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Author: Eric Torberson

Eric Torberson is a licensed attorney in Texas as well as licensed in the federal courts of the southern and western districts of Texas.