When facing criminal charges, it is important to be informed about all of the collateral consequences of being charged with that particular crime. When facing charges for misdemeanor assault involving family violence, one of the primary concerns should be about your firearm rights. The outcome of your case—whether it results in a conviction or deferred adjudication—has significant implications. Here, we’ll explore how each scenario affects your ability to possess firearms under both Texas and federal law.
Effect on Gun Rights When Convicted of Assault Family Violence
If you are convicted of misdemeanor assault family violence, the consequences for your gun rights differ under Texas and federal law. But what exactly constitutes a “conviction”? Under Texas law, a conviction occurs when there is a final adjudication of guilt, either through a guilty plea, a no-contest plea, or a finding of guilt by a judge or jury, followed by sentencing. This includes sentences that result in confinement or probation.
Texas Law
Under Texas Penal Code §46.04(b):
“A person who has been convicted of a Class A misdemeanor involving a member of the person’s family or household under Section 22.01 may not possess a firearm before the fifth anniversary of the later of the date of the person’s release from confinement following conviction of the misdemeanor or the date of the person’s release from community supervision following conviction of the misdemeanor.”
A conviction prohibits you from possessing a firearm for five years after your release from confinement or community supervision (probation). Once this period ends, your firearm rights may be restored under Texas law, but this restoration does not affect federal restrictions.
Federal Law
Federal law imposes stricter consequences. Under 18 U.S.C. §922(g)(9):
“It shall be unlawful for any person who has been convicted in any court of a misdemeanor crime of domestic violence, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”
A conviction for a “misdemeanor crime of domestic violence” results in a lifetime ban on possessing firearms or ammunition. This will follow you throughout the United States for the rest of your life and nothing short of a pardon from the Governor or the granting of judicial clemency can ever restore those rights.
Effect on Gun Rights When Placed on Deferred Adjudication for Assault Family Violence
Deferred adjudication is a form of probation where the judge defers a finding of guilt and does not enter a conviction into the record if you successfully complete all terms of the agreement. It is designed to give defendants a second chance while avoiding the lifelong consequences of a criminal conviction. Placement on deferred adjudication is similar to probation and there will be conditions you must meet during the deferred adjudication period, which often include community supervision, fines, or other rehabilitative measures.
Possession While on Deferred Adjudication
Under Texas law, courts are not required to impose firearm restrictions as a condition of deferred adjudication. The Texas Code of Criminal Procedure Chapter 42A, which lists the conditions a Judge must impose on someone facing deferred adjudication, does not list such restrictions as mandatory or discretionary conditions. While judges may impose this condition, it is not automatic. So it is important to read your conditions of probation carefully before agreeing to a plea bargain if your firearm rights are important to you.
Possession After Successful Completion and Release from Deferred Adjudication
Texas Law
Once you complete deferred adjudication and are released from the courts conditions, Texas law allows you to possess a firearm the same as you were before, except for restrictions on your License to Carry, which we will discuss below.
Texas Penal Code §46.04(b), which was quoted above and creates the 5 year ban for people convicted of misdemeanor assault family violence, does not impose a firearm prohibition after successful completion of deferred adjudication. Furthermore, Texas Code of Criminal Procedure §42A.111 explicitly states:
“A dismissal and discharge under this article (deferred adjudication) may not be considered a conviction for the purposes of disqualifications or disabilities imposed by law for conviction of an offense.”
This means that dismissal and discharge under deferred adjudication “may not be considered a conviction” for disqualifications or disabilities imposed by law.
Federal Law
Federal law is a little more tricky, and legal opinions on this issue can vary. That is primarily because court opinions on this topic have varied by Circuit, which are different judicial regions throughout the United States. Most lawyers err on the side of caution and advise clients that their rights may be restricted, but according to the plain language of the federal statutes, that is not the case.
As we have mentioned above in reference to 18 U.S.C. §922(g)(9) which is cited above, the firearm prohibition applies to those convicted of a misdemeanor crime of domestic violence. However, the definition of “conviction” depends on the laws of the jurisdiction where the case was handled.
The federal regulation, 27 CFR §478.11 states regarding misdemeanor crimes of domestic violence:
“What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.”
This regulation emphasizes that the individual law in the state where the charge occurred determines whether or not someone was convicted of a crime. And in Texas, Texas Code of Criminal Procedure §42A.111 explicitly states:
“A dismissal and discharge under this article may not be considered a conviction for the purposes of disqualifications or disabilities imposed by law for conviction of an offense.”
License to Carry (LTC) Suspensions and Reapplications
Being charged with misdemeanor assault family violence also affects your License to Carry (LTC). In Texas, your LTC will be suspended upon being charged with this offense. This suspension remains in place until the case is resolved. If you are convicted, your LTC is permanently revoked, and you will no longer be eligible to reapply. A conviction imposes a lifetime restriction on possessing an LTC, as federal law permanently bars individuals convicted of misdemeanor domestic violence from firearm possession.
Reapplication After Deferred Adjudication
If you successfully complete deferred adjudication, Texas law imposes a five-year waiting period after your case is dismissed before you can reapply for your LTC. During this time, you must ensure that all conditions of your deferred adjudication are satisfied, and the case is formally dismissed. After the five-year period, you may be eligible to have your LTC reinstated, as deferred adjudication is not considered a conviction under Texas law.
Conclusion
The effect of a misdemeanor assault family violence charge on your firearm rights depends heavily on the outcome of your case. A conviction results in significant restrictions under both Texas and federal law, including a permanent federal ban on firearm possession. Successfully completing deferred adjudication generally avoids long-term consequences for firearm possession under state law, but you must still adhere to a five-year waiting period before reapplying for your LTC.
Navigating these laws can be challenging, and it’s crucial to have a skilled criminal defense attorney by your side to protect your rights. If you’re facing these charges, contact Thornton Criminal Defense at 210-439-5627 to discuss your case and learn how we can help.