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Legal Information: Texas

Texas State Gun Laws

State Gun Laws

Basic Information and Definitions

What is the difference between federal and state gun laws? Why do I need to understand both?

In these gun laws pages, we refer to both “federal gun laws” and “state gun laws.”  The major difference between the two has to do with who makes the law, who prosecutes someone who violates the law, and what the penalty is for breaking the law.

One reason why it is important for you to know that there are these two sets of gun laws is so that you can understand all of the possible ways that the abuser might be breaking the law, and you can better protect yourself.  Throughout this section, we will be referring mostly to state laws.  Be sure to also read our Federal Gun Laws pages to see if any federal laws apply to your situation as well.  You will need to read both state and federal laws to see which ones, if any, the abuser might be violating.

If you are calling the police because you believe the abuser has violated a gun law, you do not necessarily need to be able to tell the police which law was violated (state versus federal) but local police cannot arrest someone for violating federal law, only for violating state/local laws.  Only federal law enforcement, the Bureau of Alcohol, Tobacco and Firearms (“ATF”), can arrest someone for violating federal laws.  If the local police believe that a state law is being violated, they could arrest the abuser and hand the case over to the state prosecutor.  If the local police believe a federal law is being violated, hopefully, the police department will notify the ATF or perhaps the U.S. Attorney’s office in your state (which is the federal prosecutor).  For information on how you can contact ATF directly to report the violation of federal gun laws, go to Who do I notify if I think the abuser should not have a gun?  If the abuser is breaking both state and federal laws, s/he might be prosecuted in both state and federal court.

What is the definition of a felony?

Throughout these gun law pages, we will refer to gun laws that make it illegal for someone convicted of a felony to have a gun. A felony is a more serious crime than a misdemeanor. It is defined under Texas state law as an offense punishable by death or confinement in a penitentiary or any other offense that is named a felony under the law.1 However, you cannot always tell if someone was convicted of a felony only by looking at the amount of time s/he actually served in prison since sentences are often reduced or pled down. If you are unsure if the abuser was convicted of a felony, you might want to talk to the prosecutor who handled the criminal case against the abuser to find out or go to the courthouse and search the conviction records.

1 Tex. Penal Code § 1.07(a)(23)

I am a victim of domestic violence and the abuser has a gun. Is that legal?

It depends.  If you have a protective order, it may be illegal for the abuser to have a gun.  When the judge believes that the abuser committed family violence, the judge can prohibit the abuser from possessing a firearm as part of your protective order.  The judge is also supposed to suspend a person’s license to carry a concealed handgun if the judge finds that the person committed family violence.1  However, if the abuser is a peace officer who is currently employed as a sworn, full-time paid employee of a state agency or political subdivision, the judge cannot prohibit him/her from having a firearm.2

Also, federal laws, which apply to all states, restrict a person’s right to have a gun under certain circumstances such as when the abuser has been convicted of certain domestic violence-related crimes or if you have an order of protection against the abuser that meets certain requirements.  Go to Federal Gun Laws to get more information.

1 Tex. Family Code § 85.022(d)
2 Tex. Family Code § 85.022(b)(6)

Guns and Protective Orders

I have a temporary ex parte order against the abuser. Do I have to wait until I receive a permanent order before the abuser's gun is taken away?

Every protective order, including a temporary ex parte order, is supposed to have this warning printed on it:

“IT IS UNLAWFUL FOR ANY PERSON, OTHER THAN A PEACE OFFICER, AS DEFINED BY SECTION 1.07, PENAL CODE, ACTIVELY ENGAGED IN EMPLOYMENT AS A SWORN, FULL-TIME PAID EMPLOYEE OF A STATE AGENCY OR POLITICAL SUBDIVISION, WHO IS SUBJECT TO A PROTECTIVE ORDER TO POSSESS A FIREARM OR AMMUNITION.”1

Also, there should be a box that the judge can check on your temporary order which states that the respondent cannot possess a firearm or ammunition while the temporary order is in place and that his/her license to carry a concealed handgun is immediately suspended.

1 Tex. Fam. Code § 85.026(a)

I have a protective order against the abuser. Can s/he keep a gun or buy a new gun?

If you have a protective order against the abuser, there are state laws that limit his ability to have a gun unless he is a full-time, employed peace officer.  Go to I am a victim of domestic violence and the abuser has a gun.  Is that legal? for more specific information. 

Federal laws, which apply to all states, also restrict an abuser’s right to have or buy a gun if you have a protective order against him/her that meets certain requirements.  Go to Federal Gun Laws to get more information.

State and federal laws that prohibit the abuser from having a gun only apply during the time period that you have an active (valid) protective order.  The expiration date on your protective order is the time specified (up to 2 years) from the stamped issue date.  The date listed is when your order will expire.

To speak to someone in your area about local gun laws or to plan for your safety, see TX Advocates and Shelters to find a program in your area.

 

Is there anything I can do to make it more likely that the abuser's gun is taken away when I get a protective order?

There should automatically be language on your protective order that states that the respondent (person who the order is against) cannot posses a firearm or ammunition while the protective order is in effect.1 You will want to make sure that this information is included on your order.

However, it could also be important to tell the judge if the abuser has a gun, how many guns s/he has, and if s/he has ever threatened you with a gun(s).

It also may be helpful if the judge explains what will happen to the abuser’s guns, who will take them, and where they will be held once you leave the courthouse. Although the judge may deny your request, you may even want to ask the judge to:

  • Require the abuser to give his/her guns to the police, or require the police to go to the abuser’s house and get them.
  • Make it clear to both you and the abuser how long the guns will be kept away from the abuser.
  • Order that the police notify you when the guns are returned to the abuser.

1 Tex. Fam. Code § 85.026(a)

Guns and Criminal Convictions

If the abuser has been convicted of a crime, can s/he keep or buy a gun?

Under Texas law, anyone convicted of a Class A domestic violence misdemeanor cannot have a gun for 5 years following his/her release from jail/ prison or community supervision.  The judge has to specifically inform the abuser (orally or in writing) of what the law says about owning a firearm once s/he is convicted of the misdemeanor.1  If the abuser is charged with a family violence misdemeanor that is only punishable by a fine (generally a Class C misdemeanor), the warning that is written on the citation (ticket) s/he receives is enough – the judge in that case does not have to also remind the abuser of the law against firearm possession.2

A violation of this law against possessing a firearm after conviction of a family violence misdemeanor is a Class A misdemeanor.

Anyone convicted of a felony (does not have to be domestic violence-related) cannot have a gun for 5 years following his/her release from jail/ prison, parole, or community or mandatory supervision.  Also, after this 5-year period, the convicted felon can only have a gun at his home, not in other locations.  Violation of this law is a felony of the third degree.3

Federal laws, which apply to all states, also restrict a person’s right to have a gun if s/he has been convicted of certain crimes. Go to Federal Gun Laws to get more information.

1 Tex. C.C.P., Article 27.14(e)(1)
2 Tex. C.C.P., Article 14.06(b), Article 27.14(e)(2)
3 Tex. Penal Code  § 46.04(a),(b) & (e)

How can I find out if the abuser has been convicted of a crime?

Domestic violence misdemeanor and felony records are open to the public, but they are not always easy to access.  If you know the exact courthouse where the abuser may have been convicted, you can go to the courthouse and ask the clerk of court for access to those records.

Domestic violence misdemeanor and felony records are also kept in the National Instant Criminal Background Check System (NICS). However, no one other than law enforcement officials and licensed firearm sellers are allowed to search the NICS.  Your local police department may be willing to search NICS for you if you ask, but they are not required to do so.

To read more about the NICS, please see the question, What will happen if the abuser tries to purchase a gun?

The Abuser Isn't Supposed to Have a Gun...Now What?

If the abuser's gun(s) is taken away, what will happen to it?

In Texas, most counties do not have a procedure for storing the abuser’s gun. Even though the law says the abuser is not allowed to have a gun, there is no guarantee that the gun will be removed and stored. However, if the abuser is caught possessing (having) a firearm in violation of the law, s/he should be arrested and prosecuted for possession.

Who do I notify if I think the abuser should not have a gun?

If you think the abuser is violating state firearm laws, you can call your local police or sheriff department or the State Police.  If you think the abuser is violating federal firearm laws, you can call the Bureau of Alcohol, Tobacco and Firearms (ATF).

You can find contact information for sheriff departments in your area on our TX Sheriff Departments page.

You can find multiple ATF field offices in Texas on the ATF website.  For reporting illegal firearm activity, a person can also call 1-800-ATF-GUNS (1-800-283-4867).  Many ATF offices have victim advocates on staff (called “victim/witness coordinators”) and so perhaps you may ask to speak one of these advocates if you are having a hard time connecting with (or receiving a call back from) an ATF officer.

A local domestic violence organization in your area may also be able to answer your questions and assist you in talking to the necessary law enforcement officials.  You will find contact information for organizations in your area on our TX Advocates and Shelters page.

Note: Generally, the abuser does not have to have knowledge of the law in order to be arrested for breaking the law.  If the abuser has or buys a gun in violation of the law, the abuser can be arrested, whether or not s/he knows that s/he was in violation of the law.1

1United States v. Lippman, 369 F. 3d 1039 (8th Cir. 2004); United States v. Henson, 55 F. Supp. 2d 528 (S.D. W.V. 1999)

What is the penalty for violating Texas state gun laws?

Texas state law says it is a Class A misdemeanor, punishable by up to one year in jail and/or up to a $4,000 fine1 if the abuser:

  • has a firearm and there is a protective order in place against him/her (but there is an exception for peace officers);2 or
  • has been convicted of a Class A domestic-violence misdemeanor and has a gun in the 5 years following his/her release from jail/prison or community supervision.3

It is a felony of the third degree, punishable by a prison term of between 2-10 years and a fine of up to $10,000 if the abuser:4

  • has been convicted of a felony (does not have to be domestic violence-related) and has a gun in the 5 years following his/her release from jail/ prison, parole, or community or mandatory supervision.  Also, after this 5-year period, the convicted felon can only have a gun at his/her home, not in other locations.5

In addition, federal laws, which apply to all states, also restrict a person’s right to have a gun if s/he has been convicted of certain crimes or if there is an order of protection against him/her that meets certain requirements.  Violating federal law carries additional criminal penalties.  Go to Federal Gun Laws to get more information.

1 Tex. Penal Code §§ 12.21; 46.04(e)
2 Tex. Penal Code § 46.04(c), (e)
3 Tex. Penal Code § 46.04(b)
4 Tex. Penal Code § 12.34
5 Tex. Penal Code § 46.04(a)

What will happen if the abuser tries to purchase a gun?

Before purchasing a gun from a licensed firearm dealer, all buyers must undergo a criminal background check that is processed through the National Instant Criminal Background Check System (NICS). The National Instant Criminal Background Check System is used by federal firearms licensees (FFLs), such as firearms dealers or pawnbrokers, to instantly determine whether someone is eligible to receive (own, possess, transport) firearms or explosives.1 If the abuser has a qualifying protection order against him/her, or has been convicted of a felony or domestic violence misdemeanor in any state, those records should be in the NICS, which should prevent the abuser from legally buying a gun. Not all states have automated record keeping systems, making it more difficult to process the criminal background check, and some criminals and abusers do slip through the system. Also, it is important to know that background checks are not required for private and online gun sales and so in those situations, the seller is not looking in the NICS.

If the abuser is able to purchase a gun and you believe that s/he should not be able to have one under the law, you can alert the police, and ask that his/her gun be taken away and perhaps the police will investigate. Generally, it is not a good idea to assume that because the abuser was able to buy a gun, it is legal for him/her to have one.

1National Criminal Justice Reference Service website

More Information and Where to Get Help

I do not have a protective order against the abuser, and s/he has not been convicted of a crime. What can I do?

If none of these situations apply, you can still make a plan for your safety.  See our Safety Planning page for more information.  You can also contact your local family violence organization for additional help.  You may want to talk to them about whether leaving the area - either long term or for a little while - might help improve your safety.  See our TX Advocates and Shelters page to find a local family violence organization near you.

For additional information on gun laws in Texas, you can go to the Giffords Law Center website.

The abuser uses a gun for his/her job. Does the law still apply?

If the abuser is a peace (police) officer who is full-time and actively employed, then s/he will be able to continue to possess a firearm while there is a protective order against him/her.1

However, there are federal gun laws that make it illegal for anyone convicted of a felony or a domestic violence misdemeanor to buy or have a gun, even if s/he is a police officer or a military employee. Also, under federal law, although a peace officer may possess firearms for work while a protective order is in place, he cannot use/possess any firearms for personal use.2 To read more, go to Federal Gun Laws.

If you are confused or not sure whether your abuser can still use his/her gun for work purposes, you can talk to a family violence advocate in your area or call the National Center on Protection Orders and Full Faith & Credit to find out more information: 1-800-903-0111, ext. 2. To find a family violence advocate in your area, please go to our TX Advocates and Shelters page.

1 Tex. Penal Code § 46.04(c)
2 18 USC § 925(a)(1)

I've read through all of this information, and I am still confused. What can I do?

Trying to understand both federal and state gun laws can be confusing, but there are people out there who can help you better understand the law and your rights under the law.

  • You can contact the National Center on Protection Orders and Full Faith & Credit to get more information about the federal firearm law and how it applies to you: 1-800-903-0111, ext. 2. 
  • You can write to our Email Hotline.
  • You can contact a local family violence organization in your area.  See our TX Advocates and Shelters page.