A Lifetime Prohibition: Prohibited Possession of a Weapon Defense in Austin, Texas

A felony conviction. A family violence misdemeanor. A protective order. Any of these can trigger a lifetime prohibition on owning or possessing firearms. In Texas, the consequences are swift and severe: a third-degree felony charge, years in prison, and the permanent loss of your Second Amendment rights. For many, the prohibition comes as a surprise—years after the underlying conviction, when a traffic stop or routine encounter leads to a new felony charge. The law does not forget. Neither should you.

At Barton & Associates, Attorneys at Law, we defend clients throughout Austin and Central Texas against prohibited 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 prohibited possession charge often arises from a past mistake—and that the stakes are incredibly high. A conviction means years in prison, loss of firearm rights permanently, and a second felony on your record.

Whether you are facing charges for possessing a firearm after a felony conviction, a family violence conviction, or while subject to a protective order, we provide the strategic guidance and aggressive representation you need to protect your freedom.

Understanding Prohibited Possession in Texas

Under Texas law, certain individuals are permanently prohibited from possessing firearms. The prohibition applies even if the underlying offense occurred years or decades ago. Possessing a firearm while prohibited is a felony.

Who Is Prohibited:

• Individuals convicted of a felony (any felony, regardless of when it occurred)

• Individuals convicted of certain misdemeanors (assault family violence, etc.)

• Individuals subject to a protective order

• Individuals adjudicated as mentally incompetent

• Individuals judicially committed to a mental institution

What Constitutes Possession:

Possession can be actual (on your person) or constructive (in your vehicle, home, or control). Even a firearm in your closet or truck can lead to charges.

The Penalty:

Prohibited possession of a firearm is a third-degree felony, punishable by:

• 2 to 10 years in prison

• A fine of up to $10,000

Federal Law:

Even if Texas law allows possession after a waiting period (for some felons), federal law prohibits all felons from possessing firearms indefinitely. A Texas conviction can lead to federal prosecution.

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

Can a Felon Own a Gun in Texas?

Under Texas law, a felon can possess a firearm at their home after five years have passed from the date of release from confinement or supervision. However, this is a complex area of law with many exceptions and traps.

The 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 the 5-Year Rule Does NOT Do:

• It is a defense, not an automatic right. You must raise it in court.

• It applies only to possession at your home, not elsewhere.

• It does not apply to federal law. Federal law prohibits all felons from possessing firearms indefinitely.

• It does not apply if you have other prohibitions (family violence conviction, etc.)

The Trap:

Many felons believe they can legally possess firearms after five years. While Texas law provides a defense, it is not a license to carry. A traffic stop, a search, or an encounter with law enforcement can lead to a new felony charge.

For families in Austin, understanding the limits of the 5-year rule is essential to staying out of trouble.

How to Defend a Prohibited Possession Charge

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

Defense 1: You Are Not Prohibited

The State must prove you are a prohibited person. Your attorney can challenge:

• Whether the underlying conviction qualifies as a disqualifying offense

• Whether the conviction was properly obtained

• Whether the conviction has been expunged or set aside

• Whether the waiting period has passed (for felons)

Defense 2: The 5-Year Rule (Felons)

If you are a felon, 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

Defense 3: The Weapon Was Not a Firearm

The statute applies only to firearms. If the weapon does not meet the legal definition of a firearm, you have a defense.

Defense 4: You Did Not “Possess” the Weapon

Possession requires knowledge and control. If the weapon belonged to someone else, or if you did not know it was there, you have a defense.

Defense 5: Unlawful Search

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

Defense 6: Expungement or Pardon

If your underlying conviction has been expunged or you have received a pardon, you may no longer be prohibited.

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

The “5-Year Rule” Trap

The 5-year rule is one of the most misunderstood provisions in Texas firearm law. Many felons believe they are automatically entitled to possess firearms after five years. The reality is more complicated.

What the Statute Says:

Texas Penal Code Section 46.04 provides: “It is a defense to prosecution under this section that the person possessed a firearm at the person’s home after the fifth anniversary of the person’s release from confinement or supervision.”

What This Means:

• It is a defense—not an exemption. You must raise it 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.

The Danger:

If you are a felon and you are found with a firearm anywhere other than your home, you can be charged—even if the 5-year period has passed. If you are found with a firearm at your home, you can still be charged; you will simply have a defense that you must prove.

For families in Austin, the 5-year rule is a trap for the unwary.

Family Violence and Prohibited Possession

A conviction for assault family violence—even a misdemeanor—results in a lifetime prohibition on possessing firearms under both Texas and federal law.

What Qualifies:

• Assault family violence (any conviction)

• Assault family violence by strangulation

• Continuous family violence

• Any offense involving domestic violence

The Consequences:

• Lifetime prohibition under Texas law

• Lifetime prohibition under federal law

• No waiting period—the prohibition is permanent

Defending Family Violence Prohibitions:

• Challenge the Underlying Conviction: If the family violence conviction was improper, you may be able to set it aside

• Expungement: If the family violence case was dismissed or you received deferred adjudication, you may be eligible for expungement or nondisclosure

• Pardon: A full pardon may restore your rights

For families in Austin, a family violence conviction has lifelong consequences for your Second Amendment rights.

Protective Orders and Prohibited Possession

If you are subject to a protective order, you are prohibited from possessing firearms for the duration of the order.

What Triggers the Prohibition:

• Any protective order issued after a hearing

• Emergency protective orders issued after an arrest

• The prohibition lasts for the duration of the order

The Consequences:

• Possessing a firearm while subject to a protective order is a third-degree felony

• Violation can result in 2 to 10 years in prison

Defending Protective Order Prohibitions:

• Challenge the Protective Order: If the order was improperly issued, you may be able to have it set aside

• Modify the Order: Seek to modify the order to remove the firearm prohibition

• No Knowledge: If you did not know about the order, you may have a defense

For families in Austin, a protective order can strip your Second Amendment rights immediately.

Federal Law: The Permanently Prohibited

Even if Texas law allows you to possess firearms, federal law may still prohibit you. Federal law prohibits all felons from possessing firearms—with no waiting period and no exceptions.

The Federal Prohibition:

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:

Federal prosecution can result in up to 10 years in federal prison.

The State-Federal Disconnect:

Texas law may allow you to possess a firearm at your home after five years. Federal law does not. If you possess a firearm at your home, you are violating federal law, even if you are within the Texas 5-year rule.

For families in Austin, the federal prohibition is a permanent barrier.

Frequently Asked Questions About Prohibited 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 prohibited possession. Here are the answers to the most common inquiries we receive.

How long after a felony conviction can I own a gun in Texas?

Texas law provides a defense for felons who possess a firearm at their home after five years from release. However, federal law prohibits all felons from possessing firearms indefinitely.

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

Possession of a firearm by a felon is a third-degree felony, punishable by 2 to 10 years in prison.

Can I get my gun rights back after a felony conviction?

In Texas, restoration of gun rights is possible through a pardon or, in some cases, expungement. Federal law requires a pardon to restore rights.

What is the difference between state and federal prohibitions?

Texas law provides a defense for felons after five years (home possession only). Federal law prohibits all felons from possessing firearms indefinitely. You can be prosecuted under either law.

Does a family violence misdemeanor affect gun rights?

Yes. A conviction for assault family violence—even a misdemeanor—results in a lifetime prohibition under both state and federal law.

Can I possess a firearm while subject to a protective order?

No. Possessing a firearm while subject to a protective order is a third-degree felony.

Do I need an attorney for a prohibited possession charge?

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

Why Barton & Associates for Prohibited Possession Defense in Austin

Prohibited possession defense requires attorneys who understand the complex interplay of state and federal law, the 5-year rule, and the strategies for challenging underlying convictions. The attorneys at Barton & Associates bring decades of experience to this area of criminal defense, helping clients protect their freedom and their Second Amendment rights.

We are deeply rooted in the Austin legal community. We have handled prohibited possession cases in Travis County courts for decades and understand the local prosecutors, the judges, 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 Rights

If you are facing a prohibited possession charge, your freedom and your Second Amendment rights are on the line. 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)