A Second Felony, A Second Sentence: Felon in Possession Defense in Austin, Texas

You paid your debt to society. You served your time, completed your probation, and moved on with your life. Years passed. Then, a routine traffic stop, a search of your home, or an encounter with law enforcement revealed a firearm. Now you face a new felony charge—felon in possession of a firearm—that threatens to send you back to prison, this time for longer, and permanently strip your Second Amendment rights. The law does not forget. Neither can you.

At Barton & Associates, Attorneys at Law, we defend clients throughout Austin and Central Texas against felon in possession charges. From the neighborhoods of Central Austin to the communities of Round Rock, Cedar Park, Lakeway, Kyle, and Dripping Springs, our attorneys bring decades of experience to criminal defense. We understand that a felon in possession charge often arises from a past mistake—and that the stakes are incredibly high. A conviction means years in prison, a second felony on your record, and the permanent loss of your firearm rights under both state and federal law.

Whether you are facing a charge under Texas law, federal law, or both, we provide the strategic guidance and aggressive representation you need to protect your freedom.

Understanding Felon in Possession Charges

Under both Texas and federal law, a person who has been convicted of a felony is prohibited from possessing firearms. The prohibition is permanent. Possessing a firearm while prohibited is a separate felony offense.

Texas Law (Penal Code 46.04):

Under Texas law, a felon commits an offense if they possess a firearm before the fifth anniversary of their release from confinement or supervision. However, after five years, they may possess a firearm at their home—but this is a defense, not an automatic right.

Federal Law (18 U.S.C. 922(g)):

Under federal law, any person convicted of a felony is prohibited from possessing any firearm or ammunition for life. There is no waiting period. There is no home defense. The prohibition is absolute.

The Penalty:

• Texas: Third-degree felony, 2 to 10 years in prison

• Federal: Up to 10 years in federal prison

Double Jeopardy:

You can be prosecuted under both state and federal law for the same firearm. The Double Jeopardy Clause does not apply because state and federal governments are separate sovereigns.

For families in Austin, a felon in possession charge can add years to your sentence and permanently strip your Second Amendment rights.

Can a Felon Own a Gun in Texas After 5 Years?

This is one of the most misunderstood provisions in Texas law. The answer is complicated—and dangerous for those who get it wrong.

The Texas 5-Year Rule:

Texas Penal Code Section 46.04 provides a defense to prosecution for felons who possess a firearm at their home after five years have passed from the date of release from confinement or supervision.

What This Means:

• It is a defense, not an exemption. You can still be charged. You must raise the defense in court.

• It applies only to possession at your home. Not in your car. Not at work. Not anywhere else.

• The burden is on you to prove the defense.

• Federal law still prohibits possession entirely. You can be prosecuted federally regardless of the Texas 5-year rule.

The Trap:

Many felons believe they can legally possess firearms after five years. They keep a gun in their truck for protection. They take a gun to the shooting range. They carry for self-defense. All of these are crimes under Texas law—and federal law.

For families in Austin, the 5-year rule is a trap that has sent many people back to prison.

How to Defend a Felon in Possession Charge

Defending against a felon in possession charge requires a strategic approach. The State must prove each element beyond a reasonable doubt.

Defense 1: The Underlying Conviction Is Not a Disqualifying Felony

Not every felony disqualifies a person from possessing a firearm. Your attorney can challenge:

• Whether the underlying offense is actually a felony under Texas law

• Whether the conviction was properly obtained

• Whether the conviction has been expunged or set aside

• Whether the conviction was for a non-violent offense that may be eligible for restoration of rights

Defense 2: The 5-Year Rule (Texas Only)

If you are charged under Texas law, you may have a defense if:

• You were at your home

• Five years have passed from the date of release from confinement or supervision

• You were not otherwise prohibited (family violence conviction, etc.)

Defense 3: You Did Not “Possess” the Firearm

Possession requires knowledge and control. Your attorney can argue:

• The firearm belonged to someone else

• You did not know the firearm was there

• The firearm was in a shared space and you had no control over it

• You were merely present, not in possession

Defense 4: The Firearm Is Not a Firearm

The law applies only to firearms. If the object does not meet the legal definition of a firearm (antique, replica, inoperable, etc.), you may have a defense.

Defense 5: Unlawful Search

If the firearm was discovered through an illegal search, your attorney can file a motion to suppress. Without the firearm, the State may have no case.

Defense 6: Expungement or Pardon

If your underlying felony conviction has been expunged or you have received a pardon, you are no longer prohibited. Your attorney can challenge the current charge based on the restoration of your rights.

For families in Austin, a strong defense can mean the difference between a second felony conviction and dismissal.

The Texas 5-Year Rule: What You Need to Know

The 5-year rule is a defense, not a right. To use it, you must understand its limits.

How to Use the Defense:

• Raise It Early: Your attorney must raise the defense. It is not automatic.

• Prove the Dates: You must prove the date of your release from confinement or supervision.

• Prove the Location: You must prove you were at your home when you possessed the firearm.

What the Defense Does NOT Cover:

• Possession anywhere other than your home

• Possession of ammunition (Texas law does not have a 5-year rule for ammunition)

• Possession of other weapons (knives, etc.)

• Federal prosecution

The Danger of Reliance:

Relying on the 5-year rule is risky. If you are stopped with a firearm in your car, you can be charged—even if you would have a defense at your home. If you are charged, you must prove the defense at trial.

For families in Austin, the 5-year rule is not a license to carry.

Federal Felon in Possession: A Lifetime Prohibition

Federal law is unforgiving. There is no waiting period. There is no home defense. A felon can never possess a firearm or ammunition.

The Federal Statute:

Under 18 U.S.C. Section 922(g), it is unlawful for any person convicted of a felony to possess any firearm or ammunition. This is a lifetime prohibition.

The Penalty:

Up to 10 years in federal prison.

No Exceptions:

• No waiting period

• No home defense

• No antique firearms exception

• No black powder exception

Restoration of Rights:

The only way to restore your federal firearm rights is through a presidential pardon. A state pardon may not be sufficient.

For families in Austin, federal prosecution is a real and serious risk.

The Double Jeopardy Trap

State and federal governments can both prosecute you for the same firearm. This is not double jeopardy—it is separate sovereigns.

How It Works:

• You can be charged in state court under Texas law

• You can be charged in federal court under federal law

• You can be convicted in both courts

• You can serve sentences in both systems

What This Means for You:

If you are a felon and you possess a firearm, you face not one, but two potential prosecutions. A favorable outcome in state court does not protect you from federal prosecution.

Defending Both:

Your attorney must defend you in both forums. A coordinated defense strategy is essential.

For families in Austin, the risk of federal prosecution adds another layer of complexity.

Constructive Possession: When It’s Not Your Gun

Not every firearm found in your presence belongs to you. The law recognizes “constructive possession”—possession without actual physical control.

What Constructive Possession Means:

You can be charged with possession if:

• You had knowledge of the firearm

• You had the power and intent to control it

Defending Constructive Possession:

• Shared Space: If the firearm was in a shared vehicle or home, the State may not be able to prove it was yours

• No Knowledge: If you did not know the firearm was there, you did not possess it

• No Control: If the firearm was in a locked box or inaccessible, you may not have control

For families in Austin, challenging constructive possession can be an effective defense.

Frequently Asked Questions About Felon in Possession in Austin, Texas

When clients come to our office—whether from Austin’s central neighborhoods, the suburbs to the north and south, or the Hill Country communities—they often have questions about felon in possession charges. Here are the answers to the most common inquiries we receive.

Can a felon ever legally own a gun in Texas?

Under Texas law, a felon may possess a firearm at their home after five years from release. This is a defense, not a right. Federal law prohibits possession entirely, regardless of time passed.

What is the penalty for a felon in possession of a firearm in Texas?

Felon in possession is a third-degree felony, punishable by 2 to 10 years in prison.

What is the federal penalty for felon in possession?

Under federal law, felon in possession is punishable by up to 10 years in federal prison.

Can I be prosecuted under both state and federal law?

Yes. State and federal governments are separate sovereigns, and you can be prosecuted by both for the same firearm.

What is the 5-year rule in Texas?

Texas law provides a defense for felons who possess a firearm at their home after five years from release. The defense applies only to home possession and only under Texas law.

How can I restore my firearm rights after a felony conviction?

Under Texas law, a pardon or expungement may restore your rights. Under federal law, only a presidential pardon restores your rights.

Do I need an attorney for a felon in possession charge?

Yes. A felon in possession charge can result in years in prison and permanent loss of your Second Amendment rights. An experienced attorney can challenge the underlying conviction, the evidence, and the search.

Why Barton & Associates for Felon in Possession Defense in Austin

Felon in possession defense requires attorneys who understand the complex interplay of state and federal law, the 5-year rule, and the strategies for challenging possession. The attorneys at Barton & Associates bring decades of experience to this area of criminal defense, helping clients avoid a second felony conviction and protect their freedom.

We are deeply rooted in the Austin legal community. We have handled felon in possession cases in Travis County courts for decades and understand the local prosecutors, the federal authorities, and the strategies that work. This local knowledge allows us to advise clients accurately and advocate effectively.

We are also committed to a client-centered approach. We take the time to understand your case, your underlying conviction, and your goals. We explain your options in clear, straightforward language, and we provide honest advice about the best path forward.

Take the First Step Toward Protecting Your Freedom

If you are facing a felon in possession charge, your freedom is on the line. A second felony conviction means years in prison and the permanent loss of your Second Amendment rights. Do not wait. The sooner you have an experienced attorney on your side, the better your chances of a favorable outcome. At Barton & Associates, we are here to fight for you.

Call our Austin office today at 512-THE-FIRM (843-3476) to speak with an experienced criminal defense attorney about your case. You can also complete the online Free Consultation form on our website to schedule a confidential meeting. Please note, on-site consultations are by appointment only. We look forward to helping you protect your rights and your future.

Main Category: Criminal Defense Austin
Practice Area Category: Weapon Crimes
Barton & Associates, Attorneys at Law
316 W 12th St Suite 400, Austin, TX 78701
Office: 512-THE-FIRM (843-3476)