Two parallel firearm disabilities — federal and state
A Texas family-violence conviction triggers two distinct firearm disabilities — federal lifetime prohibition under 18 U.S.C. § 922(g)(9), and a state five-year UPF disability under Penal Code § 46.04(b). The two prohibitions operate independently and require separate analyses on every disqualification question.
- Federal MCDV prohibition — § 922(g)(9)
- A lifetime federal disability that attaches upon a qualifying MCDV conviction. The MCDV definition under § 921(a)(33) requires a misdemeanor offense with a use-of-force or threatened-deadly-weapon element, plus a domestic relationship between defendant and victim. The disability covers firearms and ammunition; it prohibits possession, receipt, transport, or shipment. Violation is a federal felony under § 924(a)(8), punishable by up to 15 years' imprisonment.
- State UPF prohibition — § 46.04(b)
- A Class A misdemeanor under Texas Penal Code § 46.04(b) to possess a firearm before the fifth anniversary of release from a Texas family-violence misdemeanor conviction or community supervision. Punishment is up to 1 year in county jail and a $4,000 fine. The third-degree-felony enhancement under § 46.04(e) applies in specified enhanced circumstances. The state five-year window expires; the federal lifetime prohibition does not.
- Felony-FV plus § 46.04(a) felon-in-possession
- Where the FV conviction is a felony rather than a misdemeanor — third-degree under § 22.01(b)(2) on strangulation or prior-FV enhancement, or a more serious felony — the broader § 46.04(a) felon-in-possession prohibition applies on top of § 922(g)(9). Section 46.04(a) is a third-degree felony at the state level. The federal § 922(g)(1) felon-in-possession provision applies in parallel — a federal felony with a maximum sentence of 15 years under § 924(a)(8).
- Protective-order parallel — § 922(g)(8)
- 18 U.S.C. § 922(g)(8) imposes a federal firearm disability during the pendency of a qualifying protective order. The order must (a) have been issued after a hearing of which the person received actual notice and an opportunity to participate, (b) restrain the person from harassing, stalking, or threatening an intimate partner or child, and (c) include either an explicit finding that the person poses a credible threat to the safety of the intimate partner or child OR a prohibition on the use, attempted use, or threatened use of physical force. United States v. Rahimi, 602 U.S. ___ (2024), upheld § 922(g)(8) against Second Amendment facial challenge.
The most consequential structural feature of the FV firearm-rights landscape is that the federal and state prohibitions operate on independent timelines and different qualifying-event analyses. A defendant who has completed the Texas five-year § 46.04(b) UPF window is not automatically restored to federal firearm rights — the federal § 922(g)(9) disability remains in force. Conversely, a defendant whose Texas conviction has been set aside or expunged may obtain state-level restoration without addressing the federal disability if the categorical-analysis predicate remains. The federal and state analyses must therefore be conducted independently on every disqualification question.
The "Lautenberg Amendment" reference often confuses non-specialists. Congress enacted the MCDV provision as a 1996 amendment to the Gun Control Act, included as part of an appropriations omnibus and named for then-Senator Frank Lautenberg of New Jersey. The amendment applies retroactively — a person convicted of an MCDV before 1996 is subject to the prohibition no less than a person convicted today. ATF and federal prosecutors have applied § 922(g)(9) to convictions dating to the 1970s and earlier where the conviction satisfies the MCDV definition. The retroactive reach often surprises defendants who acquired the qualifying conviction decades before the Lautenberg Amendment existed.
The physical force element — Castleman analysis
Castleman v. United States, 572 U.S. 157 (2014), held that the common-law meaning of "physical force" — including offensive touching — satisfies the MCDV element. The decision sharply expanded the reach of § 922(g)(9), and Texas § 22.01(b)(2) family-violence convictions almost uniformly qualify under the Castleman analysis.
Before Castleman, federal courts had divided on the meaning of "physical force" in the MCDV definition. Some courts applied the heightened "violent force" standard of Johnson v. United States, 559 U.S. 133 (2010), which interpreted the same phrase in the ACCA violent-felony definition. Under that approach, only intentional infliction of significant physical pain or injury satisfied the element, and many simple-assault statutes did not qualify. Other courts applied the common-law battery meaning — any intentional offensive touching, no matter how minor — which produced a much broader prohibition reach.
The Supreme Court in Castleman resolved the split in favor of the common-law approach. Justice Sotomayor's majority opinion held that the MCDV definition's "physical force" element should be interpreted in light of the statutory purpose — to bar firearm possession by perpetrators of domestic violence, including those whose conduct involved relatively minor physical contact. The Court emphasized that the perpetrators of domestic violence typically use less force than other violent offenders, and that an interpretation excluding offensive-touching offenses would empty § 922(g)(9) of much of its intended reach. The decision endorsed the common-law battery meaning — any physical contact, no matter how slight, qualifies if the other MCDV elements are satisfied.
For Texas § 22.01(b)(2) family-violence convictions, the Castleman analysis is straightforward. Texas § 22.01(a)(1) requires causing bodily injury — defined as physical pain, illness, or any impairment of physical condition under § 1.07(a)(8). Bodily injury is itself a more substantive concept than common-law battery's offensive touching, so any conduct that satisfies the Texas § 22.01(a)(1) bodily-injury element satisfies Castleman's physical-force standard a fortiori. The categorical analysis therefore concludes that virtually every Texas family-violence misdemeanor conviction under § 22.01(b)(2) qualifies as an MCDV under § 921(a)(33).
Section 22.01(a)(2) and (a)(3) — assault by threat and assault by offensive physical contact — present more nuanced categorical questions. Assault by threat under § 22.01(a)(2) involves no actual physical contact; the question is whether the "threatened use of a deadly weapon" alternative in § 921(a)(33) reaches threats more broadly. Assault by offensive physical contact under § 22.01(a)(3) involves contact that is physically offensive but not bodily-injury-causing — the closer analog to common-law battery. Most courts have held that both forms of Texas assault — when the FV predicate is established — qualify as MCDVs, but the categorical analysis is more contested than the simpler § 22.01(a)(1) bodily-injury analysis.
The mens rea element — Voisine recklessness
Voisine v. United States, 579 U.S. 686 (2016), held that a reckless mens rea satisfies the MCDV "use of physical force" element. The decision is significant for Texas defendants because § 22.01(a)(1) permits conviction on any of three mens-rea theories — intentional, knowing, or reckless.
Texas Penal Code § 22.01(a)(1) is a single statute with three alternative mens-rea theories — intentional, knowing, or reckless causation of bodily injury. The State frequently obtains convictions on the reckless theory alone, particularly in family-violence cases where the underlying conduct may have been impulsive rather than calculated. Before Voisine, federal courts had divided on whether a reckless conviction satisfied the MCDV "use of physical force" element — some courts required intentional or knowing conduct, while others held that recklessness sufficed.
Voisine v. United States, 579 U.S. 686 (2016), resolved the split. Justice Kagan's majority opinion held that the ordinary meaning of "use" of physical force does not require intentional or knowing conduct; reckless use suffices. The Court reasoned that a person who recklessly applies physical force has nevertheless "used" that force in the ordinary statutory sense. The decision aligned the MCDV mens-rea analysis with the bodily-injury element's natural breadth, and confirmed the broad reach of § 922(g)(9).
For Texas defendants, the practical effect is dispositive. A conviction under § 22.01(b)(2) does not specify which of the three mens-rea theories the jury accepted — and even where the State proceeded on the reckless theory alone, the conviction qualifies as an MCDV. Plea-negotiation strategies cannot evade § 922(g)(9) by accepting a reckless-only conviction or by arguing that the original indictment alleged a non-MCDV-qualifying mens rea. The categorical analysis examines the elements of the statute of conviction, not the prosecutor's charging theory or the defendant's actual conduct.
Voisine's broader implications continue to be litigated. Defense arguments have urged courts to interpret "use" more narrowly in particular factual contexts — e.g., to exclude conduct that involves no volitional element of force application. The Supreme Court has not revisited Voisine since 2016, and most lower courts have continued to apply it broadly. The defense strategy in any contested MCDV-qualification case must address Voisine directly and develop the factual record on the statute of conviction's elements.
Protective-order disability — § 922(g)(8) after Rahimi
18 U.S.C. § 922(g)(8) prohibits firearm possession by persons subject to qualifying protective orders. After New York State Rifle & Pistol Ass'n v. Bruen, the Fifth Circuit held § 922(g)(8) unconstitutional. United States v. Rahimi (2024) reversed, upholding § 922(g)(8) against Second Amendment facial challenge.
18 U.S.C. § 922(g)(8) imposes a federal firearm disability during the pendency of a qualifying protective order. The order must (a) have been issued after a hearing of which the person received actual notice and an opportunity to participate, (b) restrain the person from harassing, stalking, or threatening an intimate partner or child, and (c) include either an explicit finding that the person poses a credible threat to the safety of the intimate partner or child OR a prohibition on the use, attempted use, or threatened use of physical force. The disability runs while the order is in effect; it terminates when the order expires or is vacated.
New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022), established that firearm regulations must be analyzed under a text-and-history framework — a regulation is constitutional only if it fits within a historical tradition of analogous firearm regulation in the United States. After Bruen, the Fifth Circuit in United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023), held § 922(g)(8) unconstitutional, concluding that no sufficient historical analogue supported disarming a person solely on the basis of a civil protective order finding the person poses a credible threat. The Fifth Circuit's decision created a circuit split and immediate uncertainty about the validity of § 922(g)(8) prosecutions nationwide.
The Supreme Court reversed in United States v. Rahimi, 602 U.S. ___ (2024). Chief Justice Roberts' majority opinion held that the historical tradition includes regulations disarming individuals who pose a credible threat to the physical safety of others — citing common-law surety laws and various 18th- and 19th-century disarmament provisions. The Court emphasized that § 922(g)(8) requires an individualized judicial finding of dangerousness, distinguishing it from broad categorical disarmament. The decision restored the federal § 922(g)(8) prosecution framework in the Fifth Circuit and nationwide.
The Rahimi reasoning has potential implications for § 922(g)(9), although the Court did not directly address the MCDV provision. The historical-tradition analysis would presumably analyze whether disarming MCDV-convicted persons fits within the same surety-law and dangerousness-disarmament tradition. The defense bar continues to litigate § 922(g)(9) Bruen challenges, and federal appellate courts have continued to uphold § 922(g)(9) after Rahimi — the Eleventh Circuit and others have found the historical-tradition analysis supports the MCDV disability. The doctrine continues to evolve, but the practical reality remains that federal prosecutors charge § 922(g)(9) cases and obtain convictions.
State UPF — Penal Code § 46.04(b)
Texas Penal Code § 46.04(b) makes it a Class A misdemeanor to possess a firearm before the fifth anniversary of release from a Texas family-violence misdemeanor conviction or community supervision. The state five-year window operates in parallel with — but separately from — the federal lifetime § 922(g)(9) prohibition.
Texas Penal Code § 46.04(b) provides: "A person who has been convicted of an offense under Section 22.01, punishable as a Class A misdemeanor and involving a member of the person's family or household, commits an offense if the person possesses a firearm before the fifth anniversary of the later of: (1) the date of the person's release from confinement following conviction of the misdemeanor; or (2) the date of the person's release from community supervision following the conviction." The offense is a Class A misdemeanor — up to 1 year in county jail and a $4,000 fine — and converts to a third-degree felony under § 46.04(e) in certain enhanced circumstances.
The five-year clock runs from the later of release-from-confinement or release-from-community-supervision. A defendant who served a 30-day jail sentence followed by 18 months of community supervision starts the clock from the end of the community-supervision term, not from the end of the jail sentence. Defendants regularly miscalculate the start date — particularly those who completed brief jail sentences followed by long supervision terms. The five-year window also resets if the defendant is reincarcerated for a community-supervision violation; the clock starts from the new release date.
The state UPF provision applies only to misdemeanor FV convictions under § 22.01(b)(2) — not to felony FV convictions. Where the FV conviction is a felony (third-degree under § 22.01(b)(2) on strangulation or prior-FV enhancement, or any more serious felony), the broader felon-in-possession prohibition under § 46.04(a) applies — a third-degree felony with much heavier exposure. Federal § 922(g)(1) felon-in-possession applies in parallel. The state misdemeanor UPF under § 46.04(b) is conceptually parallel to but operationally distinct from the federal MCDV lifetime prohibition under § 922(g)(9).
The interaction with deferred adjudication is a recurring practical question. A successfully completed deferred adjudication that has been dismissed under CCP art. 42A.111 is generally not a "conviction" for state-law purposes — but the federal § 922(g)(9) categorical analysis treats deferred adjudication as a conviction under most circuits' interpretation. The defendant whose Texas case ended in deferred-adjudication dismissal may therefore avoid the state § 46.04(b) UPF while remaining subject to the federal § 922(g)(9) disability. Practitioners advising on plea posture must account for this divergence; the federal disability is the more consequential of the two and turns on federal categorical analysis rather than the Texas final-disposition formality.
License to Carry impact — Gov't Code § 411.172
Texas Government Code § 411.172 governs LTC eligibility and disqualifies applicants with recent misdemeanor convictions, pending charges, and family-violence convictions. The LTC disability operates in addition to the federal § 922(g)(9) and state § 46.04(b) firearm prohibitions.
Texas Government Code § 411.172 sets the eligibility criteria for a Texas License to Carry. The statute imposes multiple categories of disqualification, including (1) any felony conviction; (2) any Class A or B misdemeanor conviction within the preceding five years; (3) any pending charge for a Class A or B misdemeanor or felony; (4) any chemical-dependency or psychiatric-condition finding within the preceding five years; (5) any conviction or any pending charge for a Class C misdemeanor disorderly-conduct or family-violence offense within the preceding five years; and (6) any final protective order under Family Code title 4.
For family-violence convictions, the LTC disability is layered on top of the § 922(g)(9) and § 46.04(b) prohibitions. A Class A misdemeanor FV conviction triggers (a) federal lifetime § 922(g)(9), (b) state five-year § 46.04(b), AND (c) state LTC disqualification under § 411.172. The LTC disability creates an additional restoration hurdle even after the federal and state UPF disabilities have been addressed — the applicant must demonstrate compliance with all of § 411.172's disqualifying criteria, not just the FV-specific ones.
The five-year LTC waiting period under § 411.172 for Class A and B misdemeanors runs from the date of conviction or release from confinement, whichever is later. The clock parallels but is not identical to the § 46.04(b) five-year UPF clock. A defendant who served no jail time and completed a community-supervision term might begin both clocks from the date of the supervision's expiration — but other dispositions (jail-only sentences, deferred adjudication with dismissal) produce different start dates for each clock. The LTC disability is administrative; the UPF prohibitions are criminal. The LTC disability lapses by operation of time; the federal § 922(g)(9) does not.
Pending charges trigger immediate LTC suspension and ineligibility under § 411.172(a)(4). A defendant whose LTC is in good standing at the time of an FV arrest will see the LTC suspended pending disposition. Acquittal or dismissal generally restores LTC eligibility; conviction triggers the five-year clock. Defendants whose careers or personal-security circumstances depend on LTC status face an additional motivation to negotiate a non-FV plea predicate that avoids the disqualification trigger. Plea-negotiation strategies that focus on the LTC-specific elements — pleading to non-FV predicates that fall outside the § 411.172 disqualification categories — can preserve LTC eligibility where conviction would not.
Restoration pathways — what works and what doesn't
Federal § 925(c) restoration has been suspended since 1992 — no administrative federal restoration mechanism currently exists. The principal practical pathways are full executive pardon, expunction (rarely available for FV), or successful collateral attack vacating the underlying conviction.
18 U.S.C. § 925(c) provides that the Attorney General may grant relief from federal firearm disabilities upon application showing that the applicant's record and reputation are such that the applicant will not be likely to act in a manner dangerous to public safety. Historically, ATF administered the § 925(c) application process and granted thousands of restorations annually. In 1992, Congress enacted an appropriations rider prohibiting ATF from spending funds to process § 925(c) applications, and the rider has been renewed every year since. The functional effect is that no administrative federal restoration mechanism currently exists; ATF returns § 925(c) applications without action.
Full executive pardon is the principal practical federal-restoration pathway. The Texas governor has constitutional pardon authority under Texas Constitution art. IV, § 11, exercised on recommendation of the Texas Board of Pardons and Paroles. The President has analogous federal pardon authority under U.S. Constitution art. II, § 2. A full pardon — not a conditional pardon or commutation — removes the conviction's legal effect for most purposes, including the federal § 922(g)(9) categorical analysis. United States v. Bean, 537 U.S. 71 (2002), addressed limits on § 925(c) review but did not address the pardon pathway, which remains valid. Pardon applications are lengthy, discretionary, and rarely granted — particularly for misdemeanor convictions that the Board may consider inappropriate for clemency.
Expunction under Code of Criminal Procedure ch. 55 is generally unavailable for FV convictions in Texas because expunction requires either acquittal, dismissal of the case before disposition, or a successful pardon — none of which is the typical posture of a completed FV community-supervision case. Where the FV case ended in deferred adjudication and dismissal, an order of nondisclosure under Gov't Code ch. 411 may be available — but a nondisclosure order does not vacate the conviction for federal categorical purposes and therefore does not restore federal firearm rights under § 922(g)(9). The defendant whose deferred-adjudication FV case was dismissed and nondisclosed remains subject to the federal lifetime prohibition under the categorical analysis.
Collateral attack vacating the underlying conviction is the most realistic restoration pathway for many MCDV-disqualified persons. Common grounds include (1) Padilla v. Kentucky, 559 U.S. 356 (2010), based ineffective-assistance claims where the defendant was not adequately advised of the federal firearm consequences before entering a plea; (2) jury-waiver or counsel-waiver defects under § 921(a)(33)(B)'s requirement that the defendant was represented or knowingly waived counsel; and (3) other constitutional or procedural defects that support a habeas writ. A successful collateral attack vacates the underlying conviction, which removes the federal § 922(g)(9) predicate. Practitioners should consult criminal-appellate counsel early in any restoration analysis to evaluate viable collateral-attack grounds.
The § 921(a)(33)(B) counsel-and-jury-waiver requirements are an underutilized restoration tool. The MCDV definition requires that the defendant was either represented by counsel or knowingly waived counsel, and (where the offense was tried by jury) that the defendant was tried by jury or waived jury trial. A conviction that fails either requirement is not a qualifying MCDV — meaning the federal disability does not attach. Defendants who pled to FV misdemeanors without counsel and without an effective written waiver may have a categorical-analysis argument that the conviction does not qualify; this is litigated on a case-by-case basis in federal court and requires careful review of the state-court record.
Practical defense — preserving firearm rights through plea-negotiation posture
The most effective firearm-rights preservation strategy is upstream — negotiating a non-FV plea predicate that avoids the art. 42.013 affirmative finding and the MCDV categorical-analysis qualification. Pleas to disorderly conduct, criminal mischief, or terroristic threat without an FV element preserve firearm rights where conviction on a § 22.01(b)(2) charge would forfeit them.
The single most consequential defense decision in any Texas family-violence case — for clients who value firearm rights — is the plea-negotiation posture in the first 90-180 days. Where the underlying conduct cannot be defeated outright, the structural goal becomes negotiating a plea to a predicate offense that does not implicate the family-violence designation and does not qualify as an MCDV under the federal categorical analysis. Pleas to disorderly conduct under PC § 42.01, criminal mischief under PC § 28.03, or terroristic threat under PC § 22.07 (without an FV-relationship element) avoid both the state and federal firearm disabilities.
The relationship-element challenge under Family Code § 71.003, § 71.005, or § 71.0021 is the principal defense lever for cases that cannot be reduced to non-FV predicates. Where the relationship element fails, the FV designation falls away even if the underlying assault is proved. A Class A misdemeanor simple-assault conviction under § 22.01(a)(1) without the FV element does not trigger the federal § 922(g)(9) prohibition (which requires the domestic relationship) and does not trigger the state § 46.04(b) prohibition (which requires the family-violence predicate). The defendant retains firearm rights despite the underlying assault conviction.
Where neither relationship-element challenge nor non-FV plea predicate is achievable, the defense pivots to mens-rea positioning under Voisine. Although Voisine held that recklessness suffices for MCDV qualification, the categorical analysis still requires that the conviction's statute of conviction include physical force as an element. Defense argument that the actual statute of conviction does not necessarily require physical force — based on the divisibility of the underlying statute and the analysis under Mathis v. United States, 579 U.S. 500 (2016) — has occasionally succeeded in narrow circumstances. These arguments are highly technical and require careful coordination between the trial-counsel's plea posture and the federal-categorical-analysis framework.
Pre-plea § 921(a)(33)(B) counsel-and-jury-waiver compliance is the final upstream consideration. The MCDV definition requires that the defendant was represented by counsel or knowingly waived counsel, and (in jury-trial cases) was tried by jury or waived jury. Plea documents that contain ambiguous or inadequate waivers may produce a conviction that does not satisfy § 921(a)(33)(B) — meaning the federal disability does not attach. Defense counsel should be particularly attentive to the waiver language and to record-preservation of effective counsel representation. Post-conviction, this is the most common ground for collateral attack restoration; pre-conviction, it can be locked down in advance.
Compliance with surrender obligations during the pendency of the case is a separate but critical consideration. An art. 17.292 MPO routinely orders firearm surrender during its 31-91 day term, and a final protective order under Family Code title 4 triggers § 922(g)(8) firearm disability during its pendency. Defendants who possess firearms during these periods are exposed to additional federal and state charges that compound the underlying FV case. Counsel must counsel clients on immediate surrender to a third party or licensed dealer, on the impossibility of "constructive possession" defenses to ammunition or firearms left in a shared residence, and on the federal § 924(a)(8) penalty for § 922(g)(8) violation up to 15 years' imprisonment.
