Texas § 46.04 felon-in-possession: the 5-year rule and how the clock actually runs

What the statute actually says

§ 46.04(a) provides that a person who has been convicted of a felony commits an offense if the person possesses a firearm:

1. After conviction and before the fifth anniversary of the person's release from confinement following conviction of the felony or the person's release from supervision under community supervision, parole, or mandatory supervision, whichever date is later; or
2. After the period described in (1), at any location other than the premises at which the person lives.

The statute creates two distinct prohibitions. The first is a five-year complete ban. The second is a permanent location restriction — possession is permitted only at the person's residence.

When the five-year clock starts

The clock runs from the later of two events:

• Release from confinement following conviction.
• Release from supervision (community supervision, parole, or mandatory supervision).

For a defendant sentenced to time-served, the clock starts at sentencing if there is no subsequent supervision. For a defendant who served prison time followed by parole, the clock starts at the end of parole. For a defendant who received probation only, the clock starts when probation ends.

Common counting errors include using the conviction date (wrong — the clock starts at release, not conviction), using the prison-release date when parole was imposed (wrong — parole is supervision), and using the bench-warrant or jail-release date when the case has not yet concluded.

The residence-only carve-out

After the five-year clock has run, the felon may possess a firearm only at the premises where the person lives. The statute is exact — the term is "the premises at which the person lives," not "any property the person owns" or "anywhere the person stores property."

Case law has explained that "the premises" generally means the dwelling and adjacent property reasonably understood as part of the residence. Carrying a firearm in a vehicle parked on the street, walking with a firearm on a sidewalk, or possessing a firearm at work are not within the carve-out.

Felonies of conviction that count

§ 46.04 applies to "felony" convictions. The Texas Penal Code definition controls. Out-of-state felonies count if the offense would have been a felony under Texas law. Federal felonies count. Juvenile adjudications generally do not count (Tex. Fam. Code § 51.13).

A set-aside under CCP Art. 42A.701 does not restore firearm rights for federal purposes under 18 U.S.C. § 922(g)(1), and the Texas statute treats the conviction as continuing for § 46.04 purposes despite the set-aside. Counsel should not advise that a Texas set-aside lifts the § 46.04 prohibition.

The federal overlay: 18 U.S.C. § 922(g)

18 U.S.C. § 922(g)(1) imposes a separate, permanent federal prohibition on firearm possession by anyone convicted of a "crime punishable by imprisonment for a term exceeding one year." Most Texas felonies trigger § 922(g)(1). The federal prohibition has no five-year sunset and no residence-only carve-out — it is permanent and total.

The practical implication is that even after the Texas five-year mark, a felon possessing a firearm at home in Texas violates federal law. The Texas residence-only allowance is functionally narrow because § 922(g)(1) covers the same conduct.

For most Texas felons, the realistic answer to the firearm question is: do not possess. The Texas exception exists but provides no protection against federal prosecution, and federal prosecutors do bring § 922(g) cases in the Northern and Eastern Districts of Texas.

Common scenarios and how they resolve

Five years from probation discharge, firearm at home

Lawful under Texas § 46.04. Still unlawful under federal § 922(g)(1).

Three years from prison release with parole ongoing

Clock has not started. Unlawful under both Texas and federal law.

Five years from parole discharge, firearm in vehicle

Vehicle is not "the premises at which the person lives." Unlawful under Texas § 46.04.

Set-aside under Art. 42A.701

Does not restore federal firearm rights and does not lift the Texas restrictions. Counsel should not advise possession on the strength of a set-aside.

Pardon

A gubernatorial pardon may restore Texas firearm rights but generally does not restore federal rights unless the pardon expressly so provides under federal law.

How to restore broader firearm rights

Restoration of firearm rights for a federal felon is exceptionally difficult. The federal pathway under 18 U.S.C. § 925(c) (ATF petition for relief) has been unfunded for decades and is functionally unavailable. The remaining federal pathways are:

• Presidential pardon (rare).
• Expungement that meets the federal definition under § 921(a)(20) (Texas non-disclosure does not qualify).
• Texas Gubernatorial Pardon with restoration of all civil rights including firearms.

Counsel should be candid with clients about the difficulty of restoration. The realistic advice for most Texas felons is permanent abstinence from firearm possession.

Practical scenarios that produce surprise § 46.04 cases

The most common § 46.04 prosecutions arise from facts the defendant did not anticipate produce a violation. Several patterns recur:

1. Inherited firearms. The defendant inherits a parent's firearm collection. Possession of the inherited firearms is a § 46.04 violation if within five years of release, and is generally a violation even after five years (because storage outside the residence is not "at the premises where the person lives").
2. Spousal firearms. Constructive possession of a spouse's lawfully owned firearms in a shared residence can support a § 46.04 charge. The case law applies the standard affirmative-links analysis.
3. Travel with a firearm. A felon transporting a firearm even briefly — for repair, to a gun store for transfer, or in connection with hunting on the felon's own land — violates § 46.04 because the firearm is not at the residence during transport.
4. Inadvertent discovery. A traffic stop that uncovers a firearm in the vehicle of a felon driver triggers § 46.04 prosecution. The felon's lack of awareness of the firearm's presence may not be a complete defense.

Each scenario has fact-specific defenses, but the better practice is preemptive abstinence. Felons should not own, possess, or constructively control firearms.

How the State proves prior conviction

The prior felony conviction is an element of § 46.04. The State proves it by:

• Certified copy of the judgment of conviction.
• Pen-pack records from TDCJ where the prior involved incarceration.
• Identification testimony linking the defendant to the prior conviction.
• Fingerprint comparison where identity is contested.

Defense challenges focus on identification, on the felony classification of the prior offense (some out-of-state offenses are not Texas felonies), and on the recency of the release date. A documented release date that puts the defendant outside the five-year window can be a complete defense to the timing element (though the residence-only restriction may still apply).

How § 46.04 interacts with magazine and ammunition charges

§ 46.04 covers firearms. Texas law also has provisions for ammunition and magazine possession in related contexts. The federal § 922(g) prohibition covers both firearms and ammunition. For a felon, the combined picture is:

• Firearm possession in Texas after the five-year window: Lawful under § 46.04 only at the residence. Unlawful under federal § 922(g)(1).
• Firearm possession in Texas before the five-year window: Unlawful under both Texas and federal law.
• Ammunition possession in Texas: Generally lawful under Texas state law for a felon (§ 46.04 covers firearms, not ammunition standing alone). Unlawful under federal § 922(g)(1).
• Body armor possession: Federal law restricts possession by a felon convicted of certain violent offenses under 18 U.S.C. § 931. Texas state law does not generally prohibit.

The realistic advice for any Texas felon is total abstinence from firearms, ammunition, and prohibited body armor. The federal overlay is so comprehensive that Texas-only analysis produces incomplete advice.

Engaging counsel and next steps

§ 46.04 cases are technical but predictable. The element analysis is mechanical: prior felony, release date, possession, and (for post-five-year cases) location. Counsel's job is to apply the analysis precisely and to identify any element the State cannot prove.

The DFW criminal-defense landscape has evolved substantially in the post-pandemic period. Caseloads have shifted, prosecutor staffing has changed, and several core statutes have been amended by the 88th and 89th Legislatures. Counsel should periodically refresh the working knowledge base — bar CLE materials, the Texas District & County Attorneys Association publications, and the Court of Criminal Appeals' recent opinions are reliable starting points.

For Texas felons considering whether they can lawfully possess a firearm, the realistic answer is almost always no — even after five years and even at the residence — because the federal overlay under § 922(g)(1) is permanent and total. Counsel's job is to be candid about the dual-jurisdiction reality.

For potential clients in Collin, Dallas, Denton, Tarrant, Rockwall, Kaufman, Ellis, Johnson, and Hunt counties, consultations at L and L Law Group are free and confidential. The earlier counsel is engaged, the more strategic options remain open. Many of the procedural levers discussed in this article narrow or close as the case progresses; an attorney engaged at the magistrate stage has tools that an attorney engaged at sentencing does not.

How prosecutors prove the timing element

The "five years from release" element is proved with the kinds of documents that confirm the actual release date:

• TDCJ release records, including pen-pack final discharge documents.
• Probation discharge orders from the convicting court.
• Parole discharge certificates from the Board of Pardons and Paroles.
• Mandatory supervision discharge records.

The defense should pull the same records before any plea or trial. The State's release date is the operative number. If the State's records show a different release date than the defense's understanding, the discrepancy can be material — sometimes it pushes the five-year clock to a date that creates a complete defense to the timing element.

For defendants who have been on parole or mandatory supervision multiple times for the same case (e.g., re-incarcerated after a parole violation), the operative release date is the final discharge, not the first release. Counsel should map the full custody-and-supervision history before relying on any single discharge date.

References

1. Texas Penal Code § 46.04 (unlawful possession of firearm), statutes.capitol.texas.gov/Docs/PE/htm/PE.46.htm.
2. 18 U.S.C. § 922(g)(1) (federal felon-in-possession), law.cornell.edu/uscode/text/18/922.
3. 18 U.S.C. § 921(a)(20) (definition of conviction; restoration of rights), law.cornell.edu/uscode/text/18/921.