San Antonio Prohibited Weapon Charges: Your Guide to Defense and Legal Rights

The Critical Distinction Between Legal Firearms and Prohibited Weapons in Texas

While Texas is famously protective of Second Amendment rights, state law draws a clear and serious line between lawful firearms and weapons deemed too dangerous for civilian possession. A charge of Prohibited Possession of a Weapon under Texas Penal Code § 46.05 is not a simple misunderstanding; it is a severe felony allegation that carries life-altering consequences. At Barton & Associates, Attorneys at Law, we understand that individuals facing these charges are often law-abiding citizens, collectors, or enthusiasts who may have been unaware of the specific and stringent restrictions surrounding certain devices. The legal landscape here is a complex web of state statutes and overlapping federal regulations, where even a well-intentioned mistake can lead to a felony arrest, threatening your freedom, reputation, and future.

The stakes in a prohibited weapons case are exceptionally high. A conviction is not merely about facing potential state prison time and substantial fines; it creates a permanent felony record. This record can strip away your fundamental right to possess any firearm in the future, hinder your ability to secure employment, professional licensing, and housing, and can even impact child custody or immigration status. The state and federal government prosecute these cases aggressively, making it imperative to secure a defense team with specific, proven experience in this niche and high-stakes area of law.

What Makes a Weapon “Prohibited” Under Texas Law?

Texas Penal Code Section 46.05 provides a specific list of items categorized as prohibited weapons. It is crucial to understand that this list exists independently of laws concerning who may legally possess a firearm (like felons). Here, the object itself is illegal. The prohibited items include:

• Explosive Weapons: This includes bombs, grenades, rockets, and mines.
• Machine Guns: Any firearm capable of firing more than one shot automatically, without manual reloading, by a single function of the trigger.
• Short-Barreled Firearms: This includes rifles with a barrel length of less than 16 inches or shotguns with a barrel length of less than 18 inches (or an overall length under 26 inches).
• Firearm Silencers: Devices designed, made, or adapted to muffle the report of a firearm.
• Armor-Piercing Ammunition: Ammunition designed primarily to penetrate metal or body armor.
• Chemical Dispensing Devices: Weapons designed to dispense a substance capable of causing bodily injury or discomfort (e.g., certain chemical weapons).
• Zip Guns: Improvised, homemade firearms.
• Tire Deflation Devices: Like caltrops, designed to puncture vehicle tires.

A common misconception is that ownership of items like short-barreled rifles or silencers is universally illegal. Under the National Firearms Act (NFA), these items can be legally possessed at the federal level after an extensive application process involving fingerprints, a background check, and payment of a tax stamp. However, Texas state law has historically been more restrictive. While recent legislative changes may affect the legality of certain NFA items like silencers, the interplay between state and federal law is complex and a primary area where a knowledgeable attorney must scrutinize the charges against you.

The Severe Penalties for a Prohibited Weapons Conviction

A violation of Texas Penal Code § 46.05 is typically prosecuted as a third-degree felony. The potential penalties upon conviction are severe:

• Incarceration: From 2 to 10 years in a Texas state prison.
• Fines: Up to $10,000.
• Permanent Criminal Record: A felony conviction that will appear on all background checks.

However, the charges can be enhanced under specific circumstances. If the offense is committed in a place where people have gathered for a funeral, school, or church service, it becomes a second-degree felony, punishable by 2 to 20 years in prison. These enhancements demonstrate the state’s serious approach to these offenses in sensitive locations.

Beyond the direct penalties, the collateral consequences are profound and long-lasting. You will face a permanent loss of your right to vote while incarcerated or on parole, and you will be prohibited from possessing any firearm in the future. Employment opportunities, especially in fields requiring security clearance or professional licensing, will be severely limited. For non-citizens, a felony conviction can trigger deportation proceedings or make you permanently inadmissible to the United States.

Building Your Defense: Strategies We Employ

At Barton & Associates, we leverage our deep experience in criminal and weapons law to build a powerful, multi-faceted defense. Our approach begins with a meticulous investigation of your case, challenging the prosecution’s evidence at every stage.

1. Challenging the “Possession” and “Knowledge” Elements

For a conviction, the state must prove you knowingly possessed a prohibited weapon. We attack this foundation by examining:

• Lack of Knowledge: Did you know the item was in your possession (e.g., in a vehicle or storage unit you control)? Did you know it met the specific legal definition of a prohibited weapon? We argue that you lacked the requisite criminal intent.
• Constructive vs. Actual Possession: The state may claim you had “constructive possession” (control, but not direct physical holding). We challenge whether the evidence truly supports this legal theory.

2. Asserting Affirmative Defenses

Texas law provides specific, narrow defenses to prohibited weapons charges. We rigorously investigate if your situation qualifies, including:

• Antique or Curio Status: The weapon may qualify as an antique firearm or curio, which is exempt under the law.
• Motion Picture, Television, or Theater Use: Possession for use in a film or theatrical production can be a valid defense.
• Official Military or Governmental Duty: Possession as a member of the armed forces or a government agency in the line of duty.
• Transport for Lawful Repair or Sale: Transporting the weapon to a licensed dealer or repair facility may provide a defense, depending on the circumstances.

3. Scrutinizing the Search and Seizure

The Fourth Amendment protects you from unreasonable searches and seizures. If law enforcement discovered the weapon through an unlawful stop, an invalid search warrant, or by exceeding the scope of a lawful search, we will file a motion to suppress the evidence. If successful, this can lead to the dismissal of charges, as the prosecution loses its most critical proof.

4. Navigating State vs. Federal Law Complexities

We possess the expertise to analyze the intricate overlap between Texas law and federal regulations like the National Firearms Act (NFA). In some cases, an item may be improperly classified by police. For instance, we may challenge whether a device is truly a “machine gun” as defined by law or if a firearm’s configuration legally meets the definition of a “short-barreled” weapon. This detailed technical and legal analysis is often key to a successful defense.

Why Barton & Associates Is Your Strategic Advantage

Facing a prohibited weapons charge requires an attorney who is not just a general criminal defender, but a specialist in this complex field. Our firm, led by Attorney Gary J. Barton, offers distinct advantages:

• Deep Legal Knowledge: We have an exhaustive understanding of Texas Penal Code § 46.05, related statutes, and the evolving case law that interprets them. We stay current on legislative changes that may impact your defense.
• Former Prosecutorial Insight: Our experience on the other side of the courtroom gives us invaluable perspective on how the state builds these cases, allowing us to anticipate their strategies and identify weaknesses from day one.
• Aggressive, Trial-Ready Advocacy: We prepare every case as if it is going to trial. This readiness not only ensures we can fiercely defend you before a jury but also strengthens our position in negotiations, often leading to better outcomes.
• Dedicated Focus on Your Future: We look beyond the courtroom to understand how a charge or conviction will impact your entire life. Our defense strategy is designed to protect your rights, your freedom, and your long-term prospects.

Take Immediate Action to Protect Your Rights

The period following an arrest is critical. Do not speak to law enforcement investigators or prosecutors without an attorney present. Anything you say can be used against you. Politely assert your right to remain silent and your right to legal counsel.

Contact Barton & Associates today at 210-500-0000 for a confidential and thorough case evaluation. We will immediately begin analyzing the charges, investigating the circumstances, and developing a defense strategy tailored to the unique facts of your situation. Your future is too important to leave to chance.

Main Category: Criminal Defense
Practice Area Category: Weapon Crimes
Barton & Associates, Attorneys at Law
115 Camaron St, San Antonio, TX 78205
Office: 210-500-0000