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Can a felon get in trouble traveling in car with person who has a clean record and has a handgun?

Fort Worth, TX |

Example: person has a felony DWI, spouse has clean record. Spouse owns a handgun and they will be traveling together. If they get stopped, can the person with felony get in trouble for having gun in car, if it belongs to the spouse?

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Attorney answers 4


It is a question of possession, and who they authorities think are in possession.

Cynthia Henley



Thank you for your response!


I would advise against this. Under Texas law, it is an offense for a convicted felon to be in possession of a firearm at any time outside his residence (after five years pass following the release from incarceration, parole or probation, some may be allowed to have a firearm solely in their residence). If husband and wife are in the same car, and wife has her handgun with her, it could be deemed to be in husband's possession. Under the Texas Penal Code, "possession" means actual care, custody, control, or management. Because of the husband-wife relationship, and the husband's close proximity and potential access to the gun, I think a law enforcement officer would likely deem this a violation, and a prosecutor very well would too. Traveling in this fashion is definitely not a good idea.

The information provided by this attorney is for general guidance only, and is not to be considered as advice specific to any particular person, legal matter, or case. For specific advice regarding any legal question or matter, you are encouraged to consult a qualified attorney in the appropriate jurisdiction. If you wish to consult with Mr. Little regarding your legal matter, you may contact him at (888) 404-0777.



Thank you for your swift response. Very helpful.


I agree with Ms. Henley.

It is not unheard of for a person to get charged with possession of gun, drugs, whatever, and end up telling the defense lawyer, "It wasn't mine". I do believe that is often the case. But, when it comes to getting charged, arrested, jailed, etc., it's what the law enforcement officers and prosecutors believe that determines what happens.

Answers on Avvo are for general information purposes only and should not be relied upon as legal advice. No attorney / client relationship is created by providing this answer. For specific advice about your situation, you should consult a competent attorney of your choosing.


If the gun is registered to the spouse (one with clean record) and the spouse (one with clean record) is in possession, the other spouse (with felony) is not breaking the law. That doesn't mean he/she won't get arrested and charged with it, because innocent people get arrested and charged all the time. It just means that it can be defended easily. It's no different than the spouse (with felony) getting arrested for running a stop sign and because he was transported to the police department by officer who has a gun on him, he is also charged with possession of gun. That's ridiculous and doesn't happen. Just because one spouse cannot be in possession of a gun doesn't take the other spouse's right to carry one away. If the gun is registered to the spouse with the felony, that's a different case.

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