State versus federal felon-in-possession: the §922(g) parallel exposure trap

The two statutes side-by-side

Texas and federal law each prohibit firearm possession by a person previously convicted of a felony. The statutes differ in significant ways:

The two statutes share the basic structure but differ in scope. Federal §922(g)(1) is broader in time and location. Texas §46.04 has the 5-year and residence-only carve-outs. The federal statute requires Rehaif knowledge of status; Texas requires knowing possession but does not require knowledge of the prior-felony status under longstanding Court of Criminal Appeals construction.

Texas §46.04 — the 5-year rule

Texas Penal Code §46.04 is the state felon-in-possession statute. It contains two substantive prohibitions:

The structure creates two distinct offenses under one statute. The first (a)(1) covers the 5-year period after release from supervision. The second (a)(2) covers any time after the 5-year period but only at locations other than the defendant's home.

The 5-year clock starts on the later of release from confinement or release from supervision. A defendant who served 3 years and then was on parole for 5 years has a clock that starts at the end of parole, not at the end of the prison term. Counsel should compute the clock from the most recent supervision discharge.

For the (a)(2) post-5-year provision, the prohibition is location-specific. Possession at the defendant's residence is not an offense; possession at a third party's residence, in a vehicle, at a workplace, or anywhere else is an offense. The State must prove the location element. Some Court of Criminal Appeals authority addresses the definitional contours of “premises at which the person lives.”

Federal §922(g)(1) — the lifetime prohibition

18 U.S.C. §922(g)(1) is the federal felon-in-possession statute. It prohibits possession of a firearm by any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year.

The statute has several distinctive features:

• Interstate-commerce element. The firearm must have moved in or affected interstate commerce at some point. This is essentially universal for manufactured firearms.
• Predicate is “punishable by more than a year,” not necessarily “felony.” Texas misdemeanors with maximums above one year (rare) would qualify. Most state felonies qualify.
• No timing limitation. The prohibition is lifetime. There is no Texas 5-year-rule equivalent.
• No location limitation. Possession anywhere is prohibited.
• Rehaif knowledge requirement. After Rehaif v. United States, the government must prove the defendant knew of his prior-felony status at the time of possession.

The standard 922(g)(1) sentence under 18 U.S.C. §924(a)(8) is up to 15 years (raised from 10 years by the Bipartisan Safer Communities Act of 2022). Under the Armed Career Criminal Act in 18 U.S.C. §924(e), a defendant with three prior convictions for “violent felonies” or “serious drug offenses” faces a 15-year mandatory minimum and a maximum of life.

The parallel-exposure trap

The constitutional separate-sovereigns doctrine allows both Texas and the federal government to prosecute the same possession event. The Supreme Court has consistently held that a defendant convicted in state court can be prosecuted in federal court for the same act, and vice versa, without violating the Double Jeopardy Clause.

In practice, most felon-in-possession cases stay in one system. Local police arrest, local prosecutors file in state court, and the case proceeds. Federal involvement typically follows one of these patterns:

ATF involvement at the scene

If ATF agents are present at the arrest, the case is more likely to go federal. ATF's presence usually means the case has a federal-interest hook beyond garden-variety possession.

Project Safe Neighborhoods designation

U.S. Attorney's offices in the Northern and Eastern Districts of Texas operate Project Safe Neighborhoods programs that prioritize federal prosecution of certain firearm offenses, particularly violent-prior defendants.

Serious priors triggering ACCA

A defendant with three qualifying violent or serious drug priors faces a 15-year mandatory minimum under ACCA. These cases are often referred federal because the federal sentence is substantially longer than the state.

Other federal exposure already exists

If the defendant is being prosecuted federally for drug trafficking, racketeering, or another offense, the possession charge gets folded into the federal indictment.

State-federal task-force operations

Joint operations (FBI, DEA, ATF, plus state and local) frequently produce federal-track charging decisions.

Defense counsel facing a state felon-in-possession case should evaluate the federal-track risk early. If the case has any of the above signals, federal involvement is realistic and the defense strategy may need to account for it.

Strategy in parallel cases

If federal interest is identified, several strategic considerations come into play:

1. Avoid statements. Statements to state law enforcement become evidence in any subsequent federal case. Counsel should advise the client to remain silent across all interactions until the federal track is resolved.
2. Manage state plea decisions. A state plea may foreclose certain federal defenses or create issues for ACCA predicates. Counsel should not plead in state court without evaluating federal-track implications.
3. Engage federal defense counsel. If federal indictment is imminent, federal counsel should be involved before charging. Pre-indictment engagement can sometimes prevent the federal case from going forward.
4. Petite Policy considerations. The DOJ Petite Policy discourages successive federal prosecution after a state acquittal or substantial state penalty. A defense argument that the state proceeding addresses the federal interest can sometimes prevent federal prosecution.
5. Preserve constitutional challenges. Post-Bruen and post-Rahimi, the constitutionality of §922(g)(1) is contested in lower courts. Preserving the challenge across both prosecutions is essential.
6. Evaluate ACCA exposure. If three potential ACCA predicates exist, the state plea decision interacts with the federal calculation. Some state pleas convert a non-ACCA prior into an ACCA prior under the categorical approach.

The interaction between the two cases is complex. Counsel should pull both statutes, both records, and any past or pending federal investigation information into a single strategic picture before making major decisions.

Constitutional landscape after Bruen and Rahimi

The Supreme Court's 2022 decision in New York State Rifle & Pistol Association v. Bruen announced a test for Second Amendment challenges that has spawned substantial felon-in-possession litigation. Under the test, gun regulations must be consistent with the nation's historical tradition of firearm regulation.

The Fifth Circuit and other circuits have addressed §922(g)(1) post-Bruen with mixed results. Several circuits have upheld the statute as applied to defendants with violent or serious drug priors. Other panels have held the statute facially or as-applied unconstitutional in certain narrow contexts. The Supreme Court's 2024 decision in United States v. Rahimi upheld §922(g)(8), which is the protective-order disability, on a narrow ground that does not directly resolve §922(g)(1).

For defense counsel, this means:

• The constitutional challenge to §922(g)(1) is alive in the Fifth Circuit and elsewhere.
• Preserving the challenge at trial and on appeal is essential.
• The as-applied posture — arguing that the defendant's prior conviction is not the type of historical analog the Founders would have understood as disqualifying — is the most promising avenue in many cases.
• Texas §46.04 has not been struck down but is subject to the same general constitutional framework.

This is an evolving area. Counsel should monitor Fifth Circuit and Texas Court of Criminal Appeals decisions closely and preserve every constitutional challenge in pretrial motions.

Rights restoration and what it does

Some defendants believe their state-court rights restoration or expunction eliminates the felon-in-possession exposure. The answer is nuanced and depends on which sovereign is prosecuting.

Texas restoration mechanisms

Texas has limited rights-restoration mechanisms for the state prohibition. CCP Art. 55 expunction can eliminate a Texas prior, removing the predicate for §46.04. A Texas pardon may also restore rights.

Federal recognition of state restoration

Under 18 U.S.C. § 921(a)(20), a conviction is not a federal predicate if it has been expunged, set aside, or restored with no firearm restriction. If the state restoration is complete and unrestricted, the federal predicate is gone.

Conditional restoration

If the state restoration is conditional — e.g., the defendant can possess but only under certain circumstances — the federal predicate is not eliminated. Most Texas restorations include conditions that retain federal exposure.

Out-of-state predicates

A Texas defendant with an out-of-state prior must analyze the restoration analysis under the law of the conviction state. State A's restoration may eliminate the federal predicate while State B's does not, depending on each state's restoration scheme.

Counsel evaluating a felon-in-possession case should pull the prior judgment, any expunction or restoration documentation, and the relevant state and federal law. The analysis is technical but can be dispositive in some cases.