Info needed about Texas Penal Code


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MADDOG
October 6, 2009, 03:24 PM
Where can I look for information on firearms and convicted felons? I did a search on the Texas Penal Code and the only thing that I found was someone selling books. Any help is appreciated.

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TexasRifleman
October 6, 2009, 03:46 PM
Texas PC 46.04 covers this.

http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.46.htm#46.04

Sec. 46.04. UNLAWFUL POSSESSION OF FIREARM. (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.
(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 Chapter 7A, 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.
(d) In this section, "family," "household," and "member of a household" have the meanings assigned by Chapter 71, Family Code.
(e) An offense under Subsection (a) is a felony of the third degree. An offense under Subsection (b) or (c) is a Class A misdemeanor.

MADDOG
October 6, 2009, 04:17 PM
Thanks Can a felon enter and/or be in a dwelling that has firearms and ammo in it? Locked in a safe.

middy
October 6, 2009, 04:19 PM
Yes.

divemedic
October 6, 2009, 05:06 PM
as long as the felon does not have access or possession of the weapon or any ammunition.

MADDOG
October 6, 2009, 05:13 PM
Where is this written? I would like to copy it, if possible. When you say access what does that mean as far as ammunition and powder, primers are concerned? In a cupboard, closet, box ect. or does it have to be locked also?

TexasRifleman
October 6, 2009, 05:21 PM
Where is this written?

I posted the penal code section above.

Texas Penal Code 1.07 defines "possession" as :

"Possession" means actual care, custody, control, or management.

Unfortunately what you are asking for is a real world application of the law, and that's not going to be written down anywhere.

That will be found in previous cases before the court, but it can vary and it doesn't necessarily end the same way every time.

If the statutory definition isn't clear enough you really need to talk to a lawyer and get advice for your specific case.

Don't forget there are some Federal laws here too, especially if the felony had anything to do with domestic violence.

divemedic
October 6, 2009, 07:46 PM
Also see 18 USC Chapter 40

When you say access what does that mean as far as ammunition and powder, primers are concerned?

(17)(A) The term “ammunition” means ammunition or cartridge cases, primers, bullets, or propellent powder designed for use in any firearm.

snip

(g) It shall be unlawful for any person—
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

snip

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.

So, powder, cases, bullets, ammo, and primers are all off limits under Federal law.

MADDOG
October 7, 2009, 09:59 AM
I guess I should of asked it like this. Can a felon come to my house if I have firearms, ammunition, and reloading supplies? All of the firearms will be in the safe. Is it neccessary to lock up the ammunition, primers, powder, and the projectiles? Thanks

Flintknapper
October 7, 2009, 10:13 AM
Yes!

No.

NavyLCDR
October 7, 2009, 10:15 AM
I would say yes, MADDOG.

What I did in military housing when I was required to have an inside lock for my guns and supplies was get a $10 locking doorknob and switch out the doorknob on a hall closet with the locking doorknob and had a nice storage area for everything.

Flintknapper,
Why would the rest of the supplies not have to be locked up when the requirements are the same?

TexasRifleman
October 7, 2009, 12:11 PM
Personally I would lock it all up, just in case. You've seen the Federal definitions that include primers and components. A bit over the top? Probably.

More importantly, why are you letting a felon in your house that you have to worry about this in the first place?

If it's something you can't avoid for whatever reason I would take no chances at all and lock every last bit of it up, both to keep him out of potential trouble as well as yourself.

MADDOG
October 7, 2009, 03:14 PM
The felon is a relative who needs a job and a place to live for a few months. It appears this person has changed, and is trying to do it right. I am just trying to help. Wish me luck. I don't think I would be the one in trouble, the felon might be though. People close to me say they should get a another chance. One is all I have.

rogertc1
October 7, 2009, 03:40 PM
Have your Felon call his parole agent.

Flintknapper
October 7, 2009, 05:41 PM
NavyLT wrote:

Flintknapper,
Why would the rest of the supplies not have to be locked up when the requirements are the same?



Because the true test for either seems to be “possession” not “access”.

My recommendation to lock up the firearms is to guard against a possible “civil suit” should the weapons be used unlawfully by a third party. Not because “access” is anywhere mentioned in the Penal Code.

================================
EXPCITE
TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 44 - FIREARMS
HEAD
Sec. 922. Unlawful acts

3) Liability for use. -
(A) In general. - Notwithstanding any other provision of law,
a person who has lawful possession and control of a handgun,
and who uses a secure gun storage or safety device with the
handgun, shall be entitled to immunity from a qualified civil
liability action.
(B) Prospective actions. - A qualified civil liability action
may not be brought in any Federal or State court.
(C) Defined term. - As used in this paragraph, the term
"qualified civil liability action" -
(i) means a civil action brought by any person against a
person described in subparagraph (A) for damages resulting
from the criminal or unlawful misuse of the handgun by a
third party, if -
(I) the handgun was accessed by another person who did
not have the permission or authorization of the person
having lawful possession and control of the handgun to have
access to it; and
(II) at the time access was gained by the person not so
authorized, the handgun had been made inoperable by use of
a secure gun storage or safety device; and
(ii) shall not include an action brought against the person
having lawful possession and control of the handgun for
negligent entrustment or negligence per se.
=================================

It could be argued that “access” itself constitutes "constructive possession".

The Definition of which is the following:

constructive possession n. when a person does not have actual possession, but has the power to control an asset, he/she has constructive possession. Having the key to a safe deposit box, for example, gives one constructive possession.
=================================

By not locking up both ammo and firearms you do run the risk of an overzealous prosecutor trying to make the “stretch” by claiming "constructive possession".

IMO, Prosecution would have difficulty establishing constructive possession…(just because a firearm/Ammo is in the house)…. since it requires they prove “intent” to exercise actual “possession”.

Any competent lawyer should be able to establish for a jury….the difference between relative “proximity” and actual “possession” (the physical care, control, custody) of an item.
==================================

Presumably, this person has not yet satisfied the time limit upon which he/she may again lawfully (Texas Law) possess a firearm:

Texas law provides that a convicted felon may possess a firearm on the premises where he/she lives once five years have elapsed from his release from prison or from parole, whichever is later. Texas Penal Code §46.04.
=============================

Note: This is Texas’ attempt to allow Felons a means by which to defend themselves in the home. Certain FEDERAL laws however…could be interpreted to invalidate this.

Of course, the smart thing to do is contact a Lawyer familiar with ALL State, Federal and Case law concerning this matter. As mentioned by someone else already, there is no simple application of written law to be universally applied here.

Flint (not a lawyer).

NavyLCDR
October 7, 2009, 07:37 PM
The felon is a relative who needs a job and a place to live for a few months. It appears this person has changed, and is trying to do it right. I am just trying to help. Wish me luck. I don't think I would be the one in trouble, the felon might be though. People close to me say they should get a another chance. One is all I have.

Understandable... but I think from the statutes that you have seen, just have a lock between him/her and the guns, ammo, primer, powder, bullets and you should be just fine. You don't need to try to keep Houdini out, just any old simple lock on a door will be enough.

Flintknapper
October 7, 2009, 09:04 PM
Agreed! ^^^^^^^^

MADDOG
October 8, 2009, 08:35 AM
Thanks for the information. This will be interesting.

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