I know at the age of 21 in the state of Texas a person can purchase a pistol. I'm wanting to buy a hand gun. I know I will be able to obtain one but my question is my roommate is a felon (his record is sealed and one of the records is esponged and sealed. Everything he did was as a minor. He hasn't gotten in trouble since. I know to obtain his record you have to have state and federal clearance. ) can I own the gun and keep it there and not potentially getting himself or myself in legal trouble with the law.
Before I respond to your inquiry, I must state that we have not spoken, I have not reviewed the relevant documents and facts, and I do not represent you. Therefore, my discussion below is not a legal opinion, but is informational only. Finally, my discussion applies only to issues to which Texas or Federal law applies, unless otherwise specified.
In Texas a felon can be charged under Section 46.04 under two set of circumstances: 1) after [prior] 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 in subsection (1), at any location other than the premises at which the person lives. A conviction under this section is a third degree felony with a range of punishment of two to 10 years for a defendant with one prior felony conviction, as well as a fine up to $10,000, under the Texas Penal Code.
In order to convict a felon for possession of a firearm in this state, the Texas Fourteenth Court of Appeals in Powell v. State held the prosecution must first that the defendant is a convicted felon who, within five years of his release from prison or community supervision, knowingly and voluntarily possessed a firearm. The Texas Court of Criminal Appeals in Brown v. State said the State may fulfill this burden, either with direct or circumstantial evidence, by establishing an affirmative link between the defendant and the firearm. The Powell court said the following circumstantial evidence may include but is not limited to factors such as the firearm was (1) in a vehicle driven by the defendant, (2) in a place owned by the defendant, (3) conveniently accessible to the defendant, (4) in plain view or (5) found in an enclosed space.
Many ex-felons incorrectly assume that if they do not actually “possess” the weapon, they cannot be charged under Section 46.04. Not so. For example, courts have found that a gun in the trunk of a girlfriend’s vehicle or having possession of a pawn shop ticket for a shotgun are sufficient basis for conviction under Section. 46.04. 1/
Bottom line, its a sticky wicket. Get a legal opinion form a board certified criminal lawyer to hang you hat on.
There are federal implications here. As a matter of federal law, felons my not possess handguns, unless a state releases the convicted felon from civil disabilities. If you are not convicted of a felony, and not otherwise prohibited from owning firearms, a friend's conviction should not prevent you from obtaining a firearm. However, your question leads me to be concerned about whether you plan on sharing this firearm with him. A straw purchase (where someone legally permitted to purchase firearms purchases a gun, and transfers the weapon to someone who may not possess a gun) is a serious federal crime which the Bureau of Alcohol, Tobacco, and Firearms indeed takes seriously. If that is the case, I strongly advise you not to do that.
If you have any questions about whether you may purchase a gun under federal law, feel free to contact me for a free consultation. If this is a state issue, I would advise you to contact a reputable Texas attorney such as Mr. Bain before you elect to purchase a firearm.
I agree with both the above answers. There are both state and federal implications here. I have found that many times people think their juvenile records are seal, when in fact, they are not. The answer here would depend on what the charge was, how long ago, and what the disposition of the case was. Also, if it were a situation where your roommate were not allowed to be in possession, then he would be the one to get in trouble unless you specifically gave him the gun or access to it.
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