Penal Code § 46.04 — unlawful possession of a firearm by a felon

What Penal Code § 46.04 actually says

Penal Code § 46.04 makes it an offense for a person with a prior felony conviction to possess a firearm before the fifth anniversary of the person’s release from confinement or community supervision, parole, or mandatory supervision following conviction of the felony — whichever date is later.¹ Outside the home, the firearm bar continues even after the fifth anniversary if the conviction is for certain offenses.

Specifically, after the five-year window expires, a felon may possess a firearm inside the felon’s own home, but possession at a location other than the home remains an offense.

Section 46.04(b) addresses persons convicted of a Class A misdemeanor involving family violence; that subsection prohibits firearm possession before the fifth anniversary of release from community supervision or the date of conviction, whichever is later.

Read § 46.04 at statutes.capitol.texas.gov/Docs/PE/htm/PE.46.htm.

How the five-year window actually runs

The five-year clock starts at the later of two events: (a) the date of release from confinement, or (b) the date of release from community supervision, parole, or mandatory supervision.

Release from confinement

For a felon who served time in TDCJ or county jail, the release date is the actual physical-release date, not the date of any later good-conduct credit recalculation.

Release from community supervision

For a felon who received probation, the release date is the date the supervision period actually ended. An extended supervision period can extend the firearm-bar clock.

Release from parole/mandatory supervision

For a felon who was paroled or released to mandatory supervision, the release date is the date the parole or supervision ended — typically the discharge date issued by the Texas Board of Pardons and Paroles.

Which date controls

The later of the two events. A felon released from confinement in 2020 but discharged from parole in 2023 is on the 2023 clock, not the 2020 clock.

Inside the home vs. outside the home — the post-five-year distinction

After the five-year window expires, § 46.04 continues to prohibit firearm possession at locations “other than the premises at which the person lives.” The defendant’s residence is exempted; everywhere else is not.

The inside-the-home exemption is a Texas-law-only carveout. It does not change federal law. Under 18 U.S.C. § 922(g)(1), a federal felon-in-possession bar applies to anyone with any prior felony conviction (subject to narrow safe harbors), with no five-year sunset and no inside-the-home exemption.²

The federal § 922(g)(1) overlay

The federal felon-in-possession statute, 18 U.S.C. § 922(g)(1), is broader than § 46.04. It applies to:

• Anyone convicted of a felony punishable by more than one year — without time limit.
• Possession of any firearm or ammunition, regardless of location (no inside-the-home carveout).
• Constructive possession as well as actual possession.

Federal exposure is the bigger trap for a Texas felon who has completed the state firearm bar. A felon five-plus years out from release, possessing a hunting rifle in the felon’s own home, is not violating § 46.04 but is violating § 922(g)(1) unless an exemption applies.

The safe-harbor provisions at 18 U.S.C. § 921(a)(20) include: convictions that have been expunged, set aside, or for which civil rights have been restored. Texas does not restore felon civil rights automatically; the safe harbor is narrow.

Class A misdemeanor family-violence subsection

§ 46.04(b) covers persons convicted of a Class A misdemeanor involving family violence. The bar runs to the fifth anniversary of the later of (a) release from community supervision or (b) the date of conviction, if there was no supervision.

This subsection overlaps with the federal Lautenberg Amendment at 18 U.S.C. § 922(g)(9), which prohibits firearm possession for anyone convicted of a misdemeanor crime of domestic violence — without a time limit. A Texas defendant who has completed the five-year window under § 46.04(b) is still subject to the lifetime federal bar.

A Class A family-violence misdemeanor with an Article 42.013 affirmative finding routinely triggers both state and federal firearm prohibitions.

Common defenses

The defense theory in a § 46.04 case usually focuses on one of the following:

1. Possession. The State must prove actual or constructive possession. A firearm in a shared residence, in a vehicle the defendant did not own, or in a location the defendant did not control may not be the defendant’s “possession.”
2. Predicate. The State must prove the qualifying felony conviction. An out-of-state conviction must satisfy the substantial-similarity analysis under Texas precedent.
3. Five-year window. If the defendant is outside the state firearm bar and at a residence, § 46.04 does not apply. The State must prove possession within the window or at an outside-the-home location.
4. Knowledge. The defendant must have knowingly possessed the firearm. Inadvertent or transient possession is sometimes defensible.

Federal § 922(g)(1) defenses are tracked separately and include similar elements plus the federal “in or affecting commerce” jurisdictional element.

Enhancement and special-offender categories

A § 46.04 conviction is not the end of the analysis. Several enhancement paths can elevate the punishment substantially.

Habitual offender enhancement

Penal Code §§ 12.42–12.43 provide enhancement for repeat felony offenders. A § 46.04 third-degree felony with prior felony convictions can be enhanced to a second-degree felony (with one prior) or punished as a first-degree felony (with two priors).

Use of a firearm in another offense

If the firearm possession is alleged in connection with another offense, that offense may carry its own deadly-weapon finding. A deadly-weapon finding in a non-3g felony case affects parole eligibility under Article 42A.054 and Government Code § 508.149.

Armed Career Criminal Act

For federal § 922(g)(1) charges with three or more qualifying prior violent felonies or serious drug offenses, the federal Armed Career Criminal Act at 18 U.S.C. § 924(e) imposes a 15-year mandatory minimum. The categorical analysis controls which Texas predicates qualify.

Career-offender guideline

For federal sentencings, USSG § 4B1.1 applies to defendants with two prior qualifying offenses. The career-offender guideline substantially elevates the federal sentencing range.

Firearm-rights restoration paths

For Texas felons who have completed the five-year window and have no further state-law prohibition, the remaining barrier is federal § 922(g)(1). Restoration paths:

1. Texas Governor’s pardon. A full pardon from the Texas Governor, with restoration of firearm rights specifically noted, can support a § 921(a)(20) safe-harbor argument. Federal courts have been mixed on the analysis.
2. Expunction under Article 55. Very narrow availability — generally requires that the underlying case did not result in a final conviction. Most § 46.04 predicates are not expungement-eligible.
3. Habeas attack on the underlying predicate. If the felony conviction was constitutionally infirm, an Article 11.07 or § 2254 attack may set aside the conviction. This is the most consequential restoration vehicle for cases with infirmities.
4. Federal relief mechanisms. 18 U.S.C. § 925(c) authorizes the ATF Director to restore firearm rights, but Congress has prohibited the ATF from spending funds on these applications since 1992. The mechanism is dormant for individual applicants.

For most Texas felons, the practical reality is that firearm rights are not realistically restorable. Counsel should be careful not to advise clients otherwise. The compliance-first counsel — surrender all firearms, avoid any possession scenario — is the only safe posture.

Specific fact patterns and defense responses

Recurring § 46.04 fact patterns and the defense approaches that typically apply:

Firearm in shared residence

A felon living with a non-felon who owns firearms is not in actual possession but may be in constructive possession depending on access and knowledge. The State’s constructive-possession theory turns on facts about where the firearm was stored, who had keys or combination access, and the defendant’s knowledge.

Firearm in vehicle during traffic stop

A felon who is a passenger in a vehicle containing a firearm is in possession only if the State can show actual or constructive possession. The driver-passenger distinction matters; the location of the firearm (under the driver’s seat vs. in the trunk vs. in the passenger’s reach) matters.

Firearm at workplace

A felon employed at a location where firearms are present (security work, certain trades) is in possession of those firearms during the work shift. The inside-the-home exemption under § 46.04 does not extend to a workplace.

Inherited firearm

A felon who inherits a firearm from a deceased family member is in possession from the moment of transfer. The proper response is to immediately transfer to a non-felon family member or to surrender to law enforcement; continued possession while “arranging for transfer” is a violation.

Firearm in storage unit

The storage unit is not the felon’s residence. Possession of a firearm at a storage unit is outside the inside-the-home exemption and remains a § 46.04 violation post-five-years.

What to do if you are facing a § 46.04 charge

The first move is to verify the five-year-window calculation. The exact release date from each supervision phase matters; an error in calculation by the State can sometimes be dispositive. Pull the TDCJ release record, the parole-discharge letter, and the supervision-completion order.

The second move is to assess federal exposure. A Texas state charge is the more visible immediate threat, but a federal § 922(g)(1) charge — with no time sunset — may follow if the U.S. Attorney’s Office (Northern or Eastern District of Texas) elects to prosecute. The strategic calculation may include reaching out to the U.S. Attorney’s Office for a position on federal interest.

The third move is to evaluate restoration options. For some felons, an Article 11.072 habeas attack on the underlying conviction may be viable. For others, a Texas Governor’s pardon — narrow but available — can restore state firearm rights in some postures, though the federal bar is not necessarily lifted by a state pardon.