Section 46.04 elements and the four disability categories
Texas § 46.04 reaches four distinct firearm disabilities: (a)(1) felons within 5 years of discharge; (a)(2) felons after 5 years away from their residence; (b) certain family-violence misdemeanor convicts within 5 years; and (c) persons subject to active protective orders. Each has its own grading and proof structure.
- Knowing or intentional possession (§ 46.04(d))
- The State must prove the defendant knowingly or intentionally possessed a firearm. Cortez v. State, 469 S.W.3d 593 (Tex. Crim. App. 2015), confirms the implicit knowledge requirement for Chapter 46 weapons offenses. The federal Supreme Court reached an analogous conclusion under 18 U.S.C. § 922(g) in Rehaif v. United States, 588 U.S. 225 (2019) — and while Rehaif is not binding on state-court § 46.04 prosecutions, its reasoning is persuasive and supports knowledge-of-status defenses where prior-conviction circumstances were unclear, sealed, or restored.
- A "firearm" within § 46.01(3)
- Section 46.01(3) defines "firearm" as any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance, or any device readily convertible to that use. Antique firearms (manufactured pre-1899) and certain replica firearms are statutorily excluded under § 46.01(3)(A)–(B). Whether an inoperable or partially-disassembled firearm qualifies is a fact question — counsel should examine the State's laboratory examination and operability report in every § 46.04 case.
- A qualifying predicate conviction or order
- For § 46.04(a) cases, the State must prove a prior felony conviction with a certified judgment under Garcia v. State, 296 S.W.3d 199 (Tex. App.—Houston [14th Dist.] 2009), tied to the defendant by identity (fingerprint or photograph matching). For § 46.04(b) cases, the State must prove a qualifying misdemeanor family-violence conviction with the family-violence finding. For § 46.04(c) cases, the State must prove an active, served protective order containing the qualifying findings under Family Code Chapter 85, Code of Criminal Procedure art. 17.292, or related statutes.
- Timing element (5-year clock or active order)
- For § 46.04(a)(1) third-degree-felony grading, the State must prove the possession occurred within 5 years from the latest of release from confinement, community supervision, mandatory supervision, or parole. For § 46.04(a)(2) state-jail-felony grading, the possession must have occurred after that 5-year window AND away from the felon's residence. For § 46.04(b), the misdemeanor family-violence 5-year clock runs from release. For § 46.04(c), the protective order must have been active and served at the time of possession.
Beyond these elements, prosecutors and defense counsel both face an analytical fork at the front of every § 46.04 case: which sub-section applies, and what is the grading? A felon within 5 years of discharge faces a third-degree felony under § 46.04(a)(1) regardless of whether the firearm was at home or elsewhere — the residence carve-out only opens at the 5-year mark. A felon after 5 years of discharge faces only a state-jail felony, and only if the firearm was found away from the felon's residence. A misdemeanor family-violence convict within 5 years of release faces a Class A misdemeanor under § 46.04(b)/(d). A protective-order subject faces a Class A misdemeanor under § 46.04(c)/(d). The grading question controls bond, plea negotiations, and ultimate exposure, and frequently the State pleads the wrong sub-section in the indictment — a defense-leverage point that arises in a meaningful percentage of DFW cases.
The dual-prosecution risk under federal 18 U.S.C. § 922(g)(1) is the most consequential collateral feature. Federal felon-in-possession attaches for life — there is no analog to the Texas 5-year window. The U.S. Attorney's Office for the Northern District of Texas (Dallas, Fort Worth, Plano, Sherman divisions) and the Eastern District of Texas (Sherman, Plano, Tyler, Marshall divisions) routinely pick up Texas § 46.04 cases involving stolen firearms, interstate-nexus issues, drug-trafficking parallels, or ATF Dallas Field Division joint-task-force investigations. Federal pickup typically issues 30–120 days after the state arrest, and what is said to state investigators can be used in federal proceedings. State and federal counsel must coordinate from the first interview onward — the federal exposure is up to 15 years per count under § 924(a)(8), with 15-year ACCA mandatory minimum under § 924(e) for three-strike defendants. See our cross-hub Federal Weapons Defense page for the full federal analysis.
The 5-year rule under § 46.04(a) — discharge-date arithmetic
Section 46.04(a)'s 5-year window is the doctrinal centerpiece. The clock runs from the latest of confinement, community supervision, mandatory supervision, or parole release — not from conviction. Within the window, possession anywhere is a third-degree felony; after, the residence carve-out narrows liability to state-jail felony for off-premises possession.
Texas § 46.04(a) splits possession by a felon into two grading tiers based on the discharge date. Subsection (a)(1) makes it a third-degree felony to possess a firearm before the fifth anniversary of release from confinement, community supervision, mandatory supervision, or parole — whichever date is latest. Subsection (a)(2) makes it a state-jail felony to possess a firearm after that fifth anniversary at any location other than the premises at which the person lives.[1] The "whichever is latest" clause is the technical centerpiece — and it is misunderstood by both defendants and arresting officers more often than any other element in Chapter 46.
Calculating the correct discharge date requires reconstructing the underlying TDCJ or CSCD record. Ex parte Granger, 850 S.W.2d 513 (Tex. Crim. App. 1993), addressed the calculation methodology directly — the date is determined by reference to the Texas Department of Criminal Justice or Community Supervision and Corrections Department records, not by an estimate or by the defendant's belief. A felon released from confinement in 2018 but on parole through 2020 has a discharge date of 2020 and a clock that runs to 2025, not 2023. Counsel obtains the TDCJ release date, parole termination date, and CSCD termination date from official records — through a subpoena or open-records request if necessary. Defendants who believe their clock has expired based on prison release alone are routinely incorrect, and the gap is a recurring source of unwarranted § 46.04(a)(1) charges.
The residence carve-out under § 46.04(a)(2) is the other half of the 5-year mechanism, and it operates in a way that surprises many defendants. After the 5-year window closes, possession is NOT freely permitted — it is permitted only at the premises at which the person lives. Possession in a vehicle on the public road, at a friend's house, in a workplace, in a storage unit not at the residence, or in any other off-premises location remains a state-jail felony under § 46.04(a)(2). Stewart v. State, 718 S.W.2d 286 (Tex. Crim. App. 1986), and Goldsberry v. State, 14 S.W.3d 770 (Tex. App.—Houston [1st Dist.] 2000), supply the framework for analyzing what counts as the person's residence. The premises analysis is fact-intensive — a long-term Airbnb, a relative's house where the felon stays nightly but does not pay rent, a vehicle parked in the driveway, and a backyard shed all generate litigation under the premises element.
The federal parallel under 18 U.S.C. § 922(g)(1) has no analog to the Texas 5-year window. Federal felon-in-possession attaches at the moment of conviction and remains for life unless the defendant's civil rights are restored under 18 U.S.C. § 921(a)(20) — a path that requires a state-law restoration of the right to vote, hold office, and serve on a jury, AND a state-law restoration of the firearm right. Texas does not restore firearm rights upon completion of a felony sentence — even though Texas restores voting rights automatically under Election Code § 11.002 upon completion of supervision. The asymmetry between Texas voting-rights restoration and federal firearm-rights non-restoration is a recurring source of federal § 922(g) prosecutions of defendants who reasonably believed their rights were fully restored. Ex parte Aviles, 27 S.W.3d 565 (Tex. Crim. App. 2000), addresses the collateral civil-rights restoration question — and counsel should review the case carefully when advising any client with a Texas felony on their record about firearm purchases or possession.
Penalty grades across § 46.04(a), (b), (c)
Section 46.04 grading runs from Class A misdemeanor (protective-order subjects under (c) and certain family-violence misdemeanants under (b)) up to third-degree felony for in-window felon-in-possession under (a)(1). The federal § 922(g) parallel adds 15-year maximum exposure on top of any Texas grade.
Section 46.04 has the most fragmented penalty structure in Chapter 46. The four sub-sections each carry their own grade: (a)(1) third-degree felony (within 5 years of discharge); (a)(2) state-jail felony (after 5 years, off-residence); (b) Class A misdemeanor (family-violence misdemeanor convict within 5 years of release); (c) Class A misdemeanor (active protective-order subject).[2] The state-jail felony grade under § 12.35 allows 180 days to 2 years in a state jail facility plus a fine up to $10,000; with one prior felony enhancement, it can be punished as a third-degree felony under § 12.35(c). The third-degree felony grade under § 12.34 is 2 to 10 years in TDCJ plus a fine up to $10,000.
Class A misdemeanor grading under § 12.21 — applicable to § 46.04(b) and (c) — is up to 1 year in county jail and up to $4,000 fine. The misdemeanor track allows probation, deferred adjudication (where the prosecutor agrees and the court finds eligibility), and pretrial diversion in counties that offer the program for first-offense weapons cases. For protective-order subjects under (c), counsel should also examine whether the underlying protective order is still active — orders that have lapsed before the date of possession terminate the § 46.04(c) disability. For family-violence misdemeanor convicts under (b), the 5-year clock from release is the central element.
Code of Criminal Procedure art. 42A.054 designates certain § 46.04 grades as "3g offenses" — the historical statutory term for offenses with enhanced probation restrictions, including limits on judge-ordered community supervision under art. 42A.054. The 3g designation affects bond posture, plea-negotiation flexibility, and post-sentence supervised-release possibilities. Counsel should review the applicable 3g status at the first plea-discussion stage, because the trajectory of negotiation differs materially between 3g-designated and non-designated cases.
Section 46.041 — possession of body armor by a felon — is a separate third-degree felony that is sometimes charged in parallel with § 46.04. The body-armor offense applies regardless of whether the felon also possessed a firearm and regardless of the 5-year window — body armor is a separate prohibited item. The federal parallel is 18 U.S.C. § 931. Multiple-count exposure under § 46.04 + § 46.041 can stack in a way that surprises defendants, particularly where the State proceeds on both during the same search incident.
The federal § 922(g)(1) parallel — and the dual-prosecution trap
Texas § 46.04 and federal § 922(g) operate independently. Federal pickup is common in stolen-firearm, interstate-nexus, drug-trafficking-parallel, and ATF-task-force cases. Federal exposure is up to 15 years per count, with 15-year ACCA mandatory minimum for three-strike defendants — and there is no federal analog to the Texas 5-year window.
The federal parallel under 18 U.S.C. § 922(g)(1) is the most consequential collateral exposure in any Texas § 46.04 case. Federal § 922(g)(1) reaches any person convicted of a crime punishable by more than one year — meaning any felon, regardless of how much time has passed since release and regardless of where in Texas the firearm was located. There is no analog to the Texas 5-year window and no analog to the residence carve-out. Federal felon-in-possession attaches at conviction and remains for life unless the defendant's civil rights are restored under 18 U.S.C. § 921(a)(20) — a path Texas felons rarely satisfy because Texas does not automatically restore the firearm right upon completion of sentence.
Federal pickup by the U.S. Attorney's Office for the Northern District of Texas (Dallas, Fort Worth, Plano, Sherman divisions) and the Eastern District of Texas (Sherman, Plano, Tyler, Marshall divisions) is common in cases involving: (i) stolen firearms (ATF traces the firearm to a recent theft); (ii) interstate-nexus issues (firearm manufactured outside Texas, satisfying the Commerce Clause element under Scarborough v. United States, 431 U.S. 563 (1977)); (iii) drug-trafficking parallels (a § 924(c) firearm-in-furtherance count attached to a § 841 drug-trafficking predicate); (iv) ATF Dallas Field Division joint-task-force investigations; and (v) any case where the federal sentencing exposure is meaningfully higher than the state exposure, such that the U.S. Attorney elects pickup as a tougher charging vehicle. The federal indictment typically issues 30–120 days after the state arrest.
Federal sentencing exposure under § 924(a)(8) is up to 15 years per count, as raised by the Bipartisan Safer Communities Act of 2022 (formerly 10 years). The Armed Career Criminal Act under § 924(e) imposes a 15-year mandatory minimum — and a maximum of life — on a § 922(g)(1) defendant with three prior convictions for "violent felonies" or "serious drug offenses" committed on different occasions. Mathis v. United States, 579 U.S. 500 (2016), governs the categorical-approach analysis for whether a state-court prior qualifies; Borden v. United States, 593 U.S. 420 (2021), held that purely reckless offenses cannot qualify as ACCA violent felonies; Wooden v. United States, 595 U.S. 360 (2022), addressed the "different occasions" element; and Erlinger v. United States, 602 U.S. 821 (2024), held the different-occasions finding must be made by a jury beyond a reasonable doubt. ACCA categorical challenges are technical, document-intensive, and often dispositive on the floor of the federal sentence.
State and federal counsel must coordinate from the first interview onward. What is said to state investigators (Mirandized or not) can be used in federal proceedings — there is no jurisdictional firewall. Joint state-federal task-force investigations (ATF + Dallas PD; ATF + Fort Worth PD; ATF + Sheriff's offices in Collin, Denton, Dallas, Tarrant) routinely produce simultaneous state and federal exposure. Federal prosecutors will sometimes wait for a state proceeding to clarify the evidentiary posture before electing federal charges — meaning state-court motion practice (suppression rulings, predicate-conviction challenges) can shape the federal charging decision. The two cases are not mutually exclusive — under Bartkus v. Illinois, 359 U.S. 121 (1959), and the dual-sovereignty doctrine, a defendant can be prosecuted by both Texas and the federal government for the same firearm possession without violating double jeopardy. The federal-defense exposure on top of the state matter typically adds $15,000–$40,000+ in counsel fees.
Defenses we evaluate first
The strongest § 46.04 defenses are knowledge of disability (Rehaif-style); 5-year-rule discharge-date calculation challenges; the premises element under (a)(2); constructive-possession affirmative-links analysis; Fourth Amendment suppression; Bruen as-applied challenges; and civil-rights-restoration/pardon defense.
The first move in any § 46.04 case is the knowledge-of-disability analysis. While Rehaif v. United States, 588 U.S. 225 (2019), is a federal § 922(g) decision and is not strictly binding on Texas state-court § 46.04 prosecutions, Texas case law independently requires a knowing or intentional mental state under § 46.04(d), reinforced by Cortez v. State, 469 S.W.3d 593 (Tex. Crim. App. 2015). The State must prove the defendant knew at the time of possession that he or she was under a firearm disability. Cases where the prior conviction was sealed, expunged, set aside, deferred-adjudication-completed and non-disclosed, or where the defendant reasonably believed civil rights had been restored — all support a knowledge-of-disability challenge. Counsel obtains the defendant's complete criminal-history record from DPS Computerized Criminal History System (CCH) and analyzes the actual posture of the predicate.
The second move is the 5-year-rule discharge-date analysis under § 46.04(a)(1) and (a)(2). As discussed above, the clock runs from the latest of release from confinement, community supervision, mandatory supervision, or parole — and that date is determined by TDCJ and CSCD records, not by the defendant's recollection or the arresting officer's estimate. Ex parte Granger, 850 S.W.2d 513 (Tex. Crim. App. 1993), supplies the calculation framework. Successful challenges target: (i) whether the defendant was actually on parole or mandatory supervision (sometimes the State alleges the wrong supervision class); (ii) whether the actual termination date is what the State alleges (parole-termination dates can be earlier or later than apparent); and (iii) whether the firearm possession occurred within or outside the 5-year window. A successful (a)(1) → (a)(2) downgrade drops the case from third-degree felony to state-jail felony — a material change in exposure.
The third move attacks the premises element in § 46.04(a)(2) cases. After the 5-year window closes, possession is unlawful only "at any location other than the premises at which the person lives." The premises analysis is fact-intensive: Stewart v. State, 718 S.W.2d 286 (Tex. Crim. App. 1986), and Goldsberry v. State, 14 S.W.3d 770 (Tex. App.—Houston [1st Dist.] 2000), supply the framework. Defenses arise where the State alleges off-premises possession but the actual location was: (i) the defendant's residence (including a long-term Airbnb, a relative's house where the felon stays nightly, an RV or trailer the felon lives in, etc.); (ii) the defendant's vehicle parked at the residence; (iii) a workplace where the felon lives in employee quarters; or (iv) outbuildings (sheds, garages, detached structures) at the residence. Where the premises analysis favors the defense, the case often drops to a non-prosecutorial posture.
The fourth move is constructive possession affirmative-links analysis. Many § 46.04 cases involve multi-occupant vehicles, shared residences, or joint storage situations. Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006), and its progeny set the "affirmative links" framework — the State must show specific links connecting the defendant to the firearm beyond mere presence. Relevant factors include: ownership or right of control over the place; presence at the time of search; firearm in plain view to the defendant; proximity and accessibility; defendant's statements connecting him to the firearm; furtive gestures; conduct indicating consciousness of guilt; prior firearm history. The cumulative-link analysis means a single weak link does not defeat the State; counsel must dismantle the linkage on multiple fronts.
The fifth move is Fourth Amendment suppression under Article 38.23. Most § 46.04 arrests originate in vehicle stops, residence searches, or post-arrest inventory searches. The validity of the initial stop under Whren v. United States, 517 U.S. 806 (1996), the basis for any Terry frisk under Terry v. Ohio, 392 U.S. 1 (1968), the scope of a vehicle search under Arizona v. Gant, 556 U.S. 332 (2009), the warrant predicate for any residence search, and the unconstitutional-prolongation framework under Rodriguez v. United States, 575 U.S. 348 (2015), all become attack surfaces. Drug-overlap § 46.04 cases — where the stop was extended for a drug-dog sniff that produced no drugs but uncovered the firearm — frequently fail on Rodriguez grounds.
The sixth move is the as-applied Second Amendment challenge under Bruen and Rahimi. New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022), introduced the historical-analogue test for firearm regulations. United States v. Rahimi, 602 U.S. 680 (2024), upheld § 922(g)(8) (protective-order disarmament) against a Second Amendment challenge while leaving open as-applied challenges to other categorical disqualifications. The Third Circuit's en banc decision in Range v. Attorney General, 69 F.4th 96 (3d Cir. 2023), sustained an as-applied § 922(g)(1) challenge for a non-violent felon (decades-old food-stamp fraud), and other circuits have split on the question. Texas state-court § 46.04 cases have generally been less receptive to Bruen as-applied challenges than federal § 922(g) cases, but the issue should be preserved for appeal in every § 46.04 prosecution involving a non-violent or dated predicate. The federal § 922(g)(1) case in N.D. Texas is the more promising forum for the as-applied challenge.
The seventh move is the civil-rights-restoration and pardon defense. Texas full pardons under Code Crim. Proc. art. 48 — issued by the Governor on the recommendation of the Board of Pardons and Paroles — restore civil rights including firearm rights under § 46.04. A Texas full pardon is a complete defense to a state § 46.04(a) prosecution, but does NOT automatically restore federal § 922(g)(1) eligibility unless the pardon expressly does so (under federal law, the pardon must explicitly restore firearm rights to satisfy § 921(a)(20)). Ex parte Aviles, 27 S.W.3d 565 (Tex. Crim. App. 2000), addresses the Texas restoration framework. The federal restoration path under 18 U.S.C. § 925(c) is statutorily available but has been defunded by Congress since 1992 — federal restoration is functionally unavailable. The gap between Texas voting-rights restoration (automatic) and federal firearm-rights non-restoration (unavailable) is the recurring confusion that produces federal § 922(g) prosecutions of defendants who reasonably believed they were restored.
Common prosecution errors in § 46.04 cases
The State's typical errors in § 46.04 prosecutions: pleading the wrong sub-section (a)(1) vs (a)(2); inadequate predicate-conviction proof; mis-calculating the discharge date; ignoring the premises element; and proceeding without proper proof of an active protective order or family-violence finding.
A pattern of § 46.04 prosecution errors has emerged across DFW dockets. The most common error is pleading the wrong sub-section. Prosecutors who default to § 46.04(a)(1) (third-degree felony) without auditing the discharge date frequently end up litigating cases where the actual 5-year window had closed before the possession occurred — meaning the proper charge was § 46.04(a)(2) (state-jail felony, off-residence only). Counsel's response is a § 31.01 motion or pretrial-conference posture letter walking the prosecutor through the discharge-date calculation. Where the case should have been (a)(2), the State faces both a downgrade and a residence-defense challenge on the merits.
The second prosecution error is inadequate predicate-conviction proof. The State must introduce a certified judgment of conviction and tie it to the defendant by identity. Garcia v. State, 296 S.W.3d 199 (Tex. App.—Houston [14th Dist.] 2009), and its progeny supply the framework. Errors include: relying on uncertified printouts; failing to tie the prior to the defendant by fingerprint or photograph matching; prosecuting on a non-qualifying out-of-state prior (some out-of-state convictions that are felonies in the rendering state are not felonies under Texas law); and prosecuting where the defendant was pardoned, expunged, or had set-asides that the State did not investigate. Counsel forces predicate-conviction admissibility issues at the first opportunity through a motion in limine.
The third prosecution error is discharge-date miscalculation. As discussed above, the 5-year clock runs from the latest of confinement, community supervision, mandatory supervision, or parole. Prosecutors who rely on the conviction date — or only the prison-release date — without examining the full TDCJ/CSCD record frequently err. The error cuts both ways: sometimes the State alleges the window has closed when it has not (charging (a)(2) when the case is properly (a)(1)), but more commonly the State alleges the window is still open when it has closed (charging (a)(1) when the case is properly (a)(2)). Counsel obtains the TDCJ, CSCD, and parole-board records and runs the calculation independently.
The fourth prosecution error is ignoring the premises element under § 46.04(a)(2). After the 5-year window closes, the offense reaches only off-residence possession. Prosecutors sometimes proceed on (a)(2) without analyzing whether the actual location of possession was the defendant's premises — and counsel's response is either a sufficiency-of-the-evidence motion at the close of the State's case or a pretrial pretrial-conference challenge under Code Crim. Proc. art. 28.01. Site visits, photographs of the actual location, lease/utility documents establishing the defendant's residence, and witness statements from family or roommates all support the premises defense.
The fifth prosecution error is § 46.04(c) protective-order cases proceeding without proper proof of an active, served order containing the qualifying findings. The State must introduce the protective order itself, the proof of service, the docket entries showing the order was active at the time of possession, and the findings within the order qualifying it under the listed statutes. Defects include: orders that had expired or been modified; orders that had not been properly served; orders that lacked the qualifying findings (e.g., a general "stay-away" order that did not include the firearm-disability finding); and respondent-mistaken-identity issues. Counsel obtains the family-law file and the court's docket entries to verify each element.
The sixth prosecution error is § 46.04(b) family-violence misdemeanor cases proceeding without proper proof of the family-violence finding. A misdemeanor assault conviction is not automatically a § 46.04(b) predicate — the State must prove the conviction was for an offense involving family violence under Family Code § 71.004 AND that the conviction included the family-violence finding under Code Crim. Proc. art. 42.013. Convictions without the express family-violence finding do not qualify for § 46.04(b) disability — even if the underlying facts involved family violence. The same gap matters for federal § 922(g)(9) under United States v. Hayes, 555 U.S. 415 (2009).
What to do if you're charged with felon-in-possession
The first 30 days are decisive: engage counsel before any statement, audit the discharge date, gather predicate-conviction documents, send a preservation letter for body-cam and dash-cam, coordinate with federal counsel if § 922(g) pickup is a live risk, and audit the premises element if outside the 5-year window.
Engage counsel before any statement to investigators. A § 46.04 case is not a self-representation matter — the interplay among the four disability sub-sections, the 5-year window, the premises element, the predicate-conviction analysis, and the federal § 922(g) parallel risk is too dense for non-lawyer navigation. The single most damaging mistake is to accept a plea offer at first appearance without the discharge-date audit, the predicate-conviction analysis, the premises-element analysis (if outside the 5-year window), and the federal-exposure review done first.
Send a body-cam, dash-cam, and search-video preservation letter to the arresting agency immediately. Frisco PD, Plano PD, McKinney PD, Dallas PD, Fort Worth PD, and most other DFW agencies overwrite footage on 30-to-90-day cycles. The footage is often dispositive on the possession analysis (where was the firearm? was it in plain view? did the defendant react or make admissions?), the knowledge analysis, and the Fourth Amendment analysis (what was the actual basis for the stop, search, or residence entry?). A one-page preservation demand citing California v. Trombetta, 467 U.S. 479 (1984), and Arizona v. Youngblood, 488 U.S. 51 (1988), locks the footage in retention pending litigation.
Gather every document related to the prior conviction immediately. Was the prior actually a final conviction or a deferred-adjudication or pretrial-diversion completion? Is the actual judgment available? Was the defendant the person convicted (identity)? Has the disability been lifted by full pardon under Code Crim. Proc. art. 48? Has the federal restoration path been pursued (or is functionally unavailable due to congressional defunding)? Are there subsequent set-asides, expunctions, or non-disclosure orders that affect the predicate? Each document either supports the State's prosecution or supports a defense — and the documents are typically held by the original sentencing court, TDCJ, CSCD, the Board of Pardons and Paroles, and the Governor's Office.
Audit the discharge date independently of any State allegation. Request the TDCJ release date, parole-termination date, mandatory-supervision-termination date, and CSCD termination date from official records. Run the latest-date calculation. If the calculation places the possession date outside the 5-year window, the State's (a)(1) charge is wrong — and the case is properly (a)(2) at most, with the premises defense in play. If the calculation places the possession date inside the window, the analysis shifts to knowledge-of-disability and predicate-conviction challenges. The discharge-date calculation is the single most important early-case analytical move in any § 46.04 prosecution.
Coordinate with federal counsel from day one if § 922(g) pickup is a live risk. Cases involving stolen firearms, interstate-manufacture nexus, drug-trafficking parallels, ATF Dallas Field Division involvement, or multi-jurisdictional task-force investigations all face elevated federal-pickup risk. State and federal counsel coordinate calendar, discovery, and witness strategy. The federal indictment typically issues 30–120 days after the state arrest — the window for coordinated defense strategy is at the front of the state case, not after federal indictment lands.
Do not give a statement. Recorded jail-cell calls (all Texas county jails record outgoing calls and admit them as party-opponent admissions under TRE 801(e)(2)), post-arrest interviews, and casual booking-room conversations routinely supply the State's strongest evidence on the knowledge and possession elements. The Fifth Amendment privilege applies from the moment of arrest forward — invoke it explicitly ("I want to speak with a lawyer") and stay silent thereafter. Family-call statements about ownership, intent, or knowledge of the predicate have lost more § 46.04 cases than weak Fourth Amendment posture.
DFW-specific context — Collin, Dallas, Denton, Tarrant — cost & timelines
DFW counties differ on § 46.04 posture: Collin and Denton firmer on felony filings, Dallas and Tarrant more open to (a)(1) → (a)(2) downgrades and reductions. Class A § 46.04(b)/(c) retainers $3,500–$10,000; (a)(2) state-jail felony $5,000–$15,000; (a)(1) third-degree felony $8,000–$20,000; federal § 922(g) parallel exposure can add $15,000–$50,000+.
Collin County prosecutors take a firm posture on § 46.04(a) felony cases — particularly third-degree felony (a)(1) filings — with limited diversion availability at the felony level. The McKinney County Court at Law and District Court dockets handle Collin § 46.04 cases. Frisco PD, Plano PD, and McKinney PD produce most arrests, frequently in coordination with the Collin County Sheriff's Office and occasionally ATF Dallas Field Division. Class A misdemeanor § 46.04(b) and (c) cases are more amenable to deferred adjudication and pretrial diversion, particularly for first offenders with no aggravators. Discharge-date discoveries that drop a (a)(1) to (a)(2) materially change the negotiation posture.
Denton County mirrors Collin's firm felony posture but with slightly more flexibility on (a)(1) → (a)(2) downgrades where the discharge-date calculation favors the defense. The Denton County Court at Law and District Court dockets handle § 46.04 cases; the Justice Center in Lewisville covers the southern county. Denton prosecutors have shown receptiveness to substantive defense posturing at the pretrial-conference stage — predicate-conviction document discovery and Article 39.14 production routinely produce better counter-offers. Pretrial-services bond-modification petitions for § 46.04 cases are processed efficiently.
Dallas County prosecutors operate the largest § 46.04 docket in the DFW region. The Dallas County DA runs specialized intake review on weapons cases and is more open than Collin or Denton to dismissals of marginal § 46.04 cases where the predicate-conviction analysis is unfavorable to the State or where the premises element fails. Felony § 46.04(a) prosecutions receive aggressive treatment where the firearm is stolen, trafficked, or tied to a drug-trafficking predicate. Federal pickup by the U.S. Attorney's Office in Dallas is a constant background consideration — Dallas County's ATF joint-task-force activity is the highest in the region.
Tarrant County combines aspects of all three — firm on first-pass plea offers (similar to Collin) but willing to negotiate substantively when defense counsel has built a record (similar to Dallas). The Tarrant County Criminal District Attorney's office runs intake review on weapons cases; the Mansfield, Hurst-Euless-Bedford, Arlington, and Fort Worth municipal courts handle the early stages with bind-overs to the County Criminal Courts at Law (misdemeanor) and District Courts (felony). Tarrant's pretrial diversion program, where available, applies to first-offense Class A § 46.04(b)/(c) cases with no aggravators.
Defense fees vary by case complexity and grade. Class A misdemeanor § 46.04 cases (subsections (b) and (c)) typically run $3,500–$10,000 flat-fee for a complete representation including discovery, motion practice, and plea or diversion resolution. State-jail felony § 46.04(a)(2) cases run $5,000–$15,000 depending on predicate-conviction complexity, premises-defense investigation, and trial readiness. Third-degree felony § 46.04(a)(1) cases run $8,000–$20,000 — the higher floor reflects the more contested posture and the higher exposure ceiling. Federal § 922(g)(1) parallel exposure can add $15,000–$50,000+ in federal-defense fees on top of the state matter. ACCA-eligible federal cases (three qualifying priors) push higher because the categorical-approach analysis is document-intensive and the 15-year mandatory minimum makes plea-negotiation flexibility narrow.
Resolution timelines for § 46.04 cases in DFW are 4–8 months for Class A misdemeanor matters with substantive motion practice, and 6–12 months for felony § 46.04 with contested suppression hearings or predicate-conviction challenges. Trial-ready felony § 46.04 with full motion practice can extend to 12–18 months. The federal § 922(g)(1) parallel runs its own timeline — federal indictment typically issues 30–120 days after arrest in pickup cases, with federal trial readiness at 9–18 months under the Speedy Trial Act framework. State and federal counsel must coordinate calendar and discovery from the outset to preserve cross-jurisdictional defenses. ACCA federal cases routinely run 12–24 months from indictment to sentencing because the categorical-approach analysis is litigated through motions and Presentence Investigation Report objections.
