Unlawful Possession of Firearm: Penal Code §46.04

The Texas Unlawful Possession of a Firearm law, also known as “UPF“, applies to people who have been convicted of a felony, members of criminal street gangs, convicted of a family violence assault or under a family violence-type protective order.

The UPF law prohibits those people, described in more detail below, from carrying firearms. Separate federal law also applies to firearm possession by felons.

The Texas legislature codified this criminal offense in Texas Penal Code Section 46.04. The law was not amended in 2023. The most recent amendments to the law were in 2021, when the legislature passed a bill to include members of criminal street gangs as class of people prohibited from possessing firearms in certain vehicles. Prior to that, the law only applied to the other groups.

The Texas UPF law does not apply to felons after 5 years has passed from the later of the person’s release from confinement parole or community supervision if the firearm was found at the person’s house. Similarly, UPF does not apply to people who have been convicted of family violence crimes more than 5 years after the person was released from jail or community supervision (whichever was later).

The Penal Code classifies the Texas Unlawful Possession of Firearm law under Title 10 “Offenses Against Public Health, Safety, and Morals,” Chapter 46 “Weapons.” Learn more about the Texas offense of Unlawful Possession of Firearm below.

What is the current Texas law about Unlawful Possession of Firearm?

The current Texas law defines the offense of Unlawful Possession of Firearm in Penal Code Section §46.04 as follows:^[1]

(a) A person who has been convicted of a felony commits an offense if he 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 by Subdivision (1), at any location other than the premises at which the person lives.

(a-1) A person who is a member of a criminal street gang, as defined by Section 71.01, commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle or watercraft.

(b) A person who has been convicted of an offense under Section 22.01, punishable as a Class A misdemeanor and involving a member of the person’s family or household, commits an offense if the person possesses a firearm before the fifth anniversary of the later of:

(1) the date of the person’s release from confinement following conviction of the misdemeanor; or

(2) the date of the person’s release from community supervision following conviction of the misdemeanor.

(c) A person, other than a peace officer, as defined by Section 1.07, actively engaged in employment as a sworn, full-time paid employee of a state agency or political subdivision, who is subject to an order issued under Section 6.504 or Chapter 85, Family Code, under Article 17.292 or Subchapter A, Chapter 7B, Code of Criminal Procedure, or by another jurisdiction as provided by Chapter 88, Family Code, commits an offense if the person possesses a firearm after receiving notice of the order and before expiration of the order.

Amendments effective in 2021

The legislature added subsection (a-1) in 2021.^[2] The legislature classified the new criminal street gang subsection as a misdemeanor instead of a felony.

What is a firearm under Texas law?

A firearm is defined in Texas Penal Code Section 46.01(3):

“Firearm” means 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. Firearm does not include a firearm that may have, as an integral part, a folding knife blade or other characteristics of weapons made illegal by this chapter and that is:

(A) an antique or curio firearm manufactured before 1899; or

(B) a replica of an antique or curio firearm manufactured before 1899, but only if the replica does not use rim fire or center fire ammunition.

What is the difference between UCW and UPF?

UPF is different from Unlawful Carrying Weapons (UCW) primarily because UPF only applies to people who have been convicted of a felony, convicted of a family violence assault or under a family violence-type protective order while UCW applies to everyone except those who are specifically exempt.^[3] Learn more about UCW

What is the statute of limitation for Unlawful Possession of Firearm in Texas?

Misdemeanor level Unlawful Possession of Firearm charges have a two-year limitations period.^[4] Felony level offenses have a three-year limitations period.^[5]

What is the penalty for a Texas Unlawful Possession of Firearm offense?

UPF is punished as a third degree felony if it is charged under subsection (a), but it is punished as a Class A Misdemeanor if it charged under subsection(a-1), (b), or (c).^[6]

In addition, prosecutors may seek a classification-level enhancement for Chapter 46 offenses under the Weapon-Free School Zone Law by proving beyond a reasonable doubt that you committed the offense in a place that you knew was within 300 feet of the premises of a school or at an official school function or game.^[7]

Can you get probation for Unlawful Possession of Firearm in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Unlawful Possession of Firearm, and judges are also allowed to accept deferred adjudication plea deals.^[8]

Note, however, that no matter the offense, neither judges nor juries may recommend community supervision for any suspended sentence of over 10 years.^[9] Also, judges may not grant community supervision after a conviction if (1) the defendant used or exhibited a deadly weapon during the commission of the felony or immediate flight thereafter and (2) the defendant used or exhibited the deadly weapon himself or was a party to the offense and knew that a deadly weapon would be used or exhibited.^[10]

What level of crime is Unlawful Possession of Firearm in Texas?

The Unlawful Possession of a Firearm crime is classified as either a misdemeanor or a third degree felony, depending on which subsection applies.

Learn more about the penalty range for this offense in the section above.

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Legal References:

^1. Texas Penal Code §46.04. This law is current as of the 88th Legislature Regular Session.^2. HB 1927, 87th Texas Legislature (RS), Section 24^3. Texas Penal Code §46.15^4. Code of Criminal Procedure 12.02(a)^5. See Code of Criminal Procedure 12.01(9)^6. Texas Penal Code §46.06(e)^7. §46.11, Texas Penal Code^8. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102 .^9. Art. 42A.053(c), Texas Code of Criminal Procedure^10. Art. 42A.054(b), Texas Code of Criminal Procedure