TexasCHLforum.com

Posted: **Mon Dec 27, 2010 6:08 pm**

I have an in-law who I've actually known longer than my wife, he introduced us, who did some stupid things in his twenties and got caught. Those stupid things just so happened to be felonious

. He has since become a model citizen. He went to school got his HVAC degree, got on with a reputable company and has worked his way up to area supervisor/project manager, owns his own home, and never does anything illegal. I definitely put him on the same level as a law abiding citizen as I put myself.

I know that due to the fact that he has been done with supervision for over five years that he is able to own guns in Texas

. He wants to know if he would be able to purchase from a dealer. I told him that I didn't think so because of NICS, isn't it federal?

Doesn't federal law maintain that a felon can never own a gun? He figures that he might as well go ahead and attempt a purchase and let them turn him down if he would not pass the background check.

He is a close friend as well as being my wife's cousin. I told him that I would be willing to do a person to person transfer for him. Would that be considered a straw purchase if I purchased the gun with the sole intention of selling it to him even though he is legal to posses?

I get the best info from ya'll, so I thought that I'd ask the most knowlegable group that I know.

PC §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.

Posted: **Mon Dec 27, 2010 6:15 pm**

The five year limit is in Texas law but I think Federal law is a lifetime ban, unless he's pardoned or his gun rights are restored by BATFE or other legal magic happens.

IANAL

Posted: **Mon Dec 27, 2010 6:30 pm**

Federal law superceed state law. That means even TX LE agencies would not proscute, FBI can throw the book on your friend and you too. consult a lawyer first before doing firearm sale to your friend. I guess its federal crime, straw purchase and UWP by your firend.

Posted: **Mon Dec 27, 2010 6:43 pm**

RAM4171 wrote: He is a close friend as well as being my wife's cousin. I told him that I would be willing to do a person to person transfer for him. Would that be considered a straw purchase if I purchased the gun with the sole intention of selling it to him even though he is legal to posses?

That's exactly what a straw purchase is. If you purchase a gun with the sole intent to transfer possession of it to a person who is unable to purchase for himself, it's a straw purchase. It's punishable by a $250,000 fine and up to 10 years in prison.

Posted: **Mon Dec 27, 2010 6:47 pm**

A suggestion, RAM4171:

Let him attempt to legally purchase the gun for himself. If he is okayed for the purchase, you and he are in the clear. If he's disapproved, you can then decide if you want a possible federal rap for a straw purchase for a convicted felon. Hey, y'all might even get to be cellmates. NO for y'all if that happens!

IANAL and have never spent a night in a Holiday Inn Express or a Gentlemen's Club. I did spend a few hours in the Nashville jail in the fall of 1962. That experience has satisfied any incarceration curiosity I may have had to this day.

Posted: **Mon Dec 27, 2010 11:40 pm**

http://www.justice.gov/usao/eousa/foia_ ... m01435.htm

A frequently litigated issue under § 922(g)(1) is whether a convicted felon is exempt from the prohibitions of the statute because of a post-conviction restoration of civil rights under State law. In accordance with 18 U.S.C. § 921(a)(20), a conviction does not disqualify an individual from possessing firearms if the person convicted "has had civil rights restored." In § 922(g)(1) cases based upon a State felony conviction, courts have uniformly looked to the law of the State where the conviction was obtained to determine whether the defendant's civil rights have been restored and whether such action has nullified the conviction's incidental prohibition on firearms possession. With respect to Federal felony convictions, the Supreme Court declared in Beecham v. United States, 511 U.S. 368 (1994), that only Federal law can nullify the effect of the conviction through expungement, pardon, or restoration of civil rights. This is so, the Court ruled, even though there is no Federal procedure for restoring the civil rights of Federal felons.

In United States v. Ramos, 961 F.2d 1003, 1009 (1st Cir.), cert. denied, ___U.S.___, 113 S. Ct. 364 (1992), the court held that the term "restored" in § 921(a)(20) requires the State to make an "individualized official judgment" that the defendant should be excepted from the prohibitions of § 922(g)(1). The Criminal Division takes the position that where State law contains any provision purporting to restore civil rights -- either upon application by the defendant or automatically upon the completion of a sentence -- it should be given effect. It is not necessary that the State issue an individualized certificate reflecting the judgment of State officials regarding an individual defendant. The Ramos case should be limited to its unique facts and not extended in attempts to nullify the effect of other State schemes for civil rights restoration. A State restoration document that is absolute on its face should disqualify the affected State felon from prosecution under § 922(g)(1) unless the facts of the case strongly support a finding that the felon had actual notice of his/her continuing State firearms disability despite the terms of the restoration document.

Posted: **Mon Dec 27, 2010 11:55 pm**

Unless his civil rights have been restored it is illegal, under federal law, for him to possess a firearm. I believe there is an exception for antique firearms (e.g. black powder / muzzle loaders). Federal law does trump state law in this instance.

If you went shooting with your friend and you loaned him for your firearm, I think you would be breaking the law as well. I'm not sure of the actual term, but it's probably along the lines of aiding and abetting or some form of conspiracy.

I'm not a lawyer, but I have done a bit of research on this matter for people who have wanted to get their CHL.

Posted: **Tue Dec 28, 2010 11:00 am**

So does that mean tha PC460.4 actually means absolutely nothing?

Posted: **Tue Dec 28, 2010 11:07 am**

RAM4171 wrote:So does that mean tha PC460.4 actually means absolutely nothing?

It means he wouldn't be prosecuted by the State of Texas. He could still be prosecuted by the United States government.

Posted: **Tue Dec 28, 2010 11:18 am**

Kythas wrote:
RAM4171 wrote:So does that mean tha PC460.4 actually means absolutely nothing?
It means he wouldn't be prosecuted by the State of Texas. He could still be prosecuted by the United States government.

I don't know what it takes it to get one's civil rights restored, but I've heard it's difficult. Maybe Mr. Cotton will come along with some tips on that.

Posted: **Tue Dec 28, 2010 11:26 am**

So basically the problem would arise if a federal officer found him in possession of a firearm. A city or state officer sould not give him any trouble in theory. So, if a state officer were to charge him with illegal posession of a firearm he would beat the rap because it would be the State of Texas that would prosecute and he would have to be let go under PC46.02. However if the feds decided to pick up the case from the state there would be a federal case that he would loose under U.S.C. 922

Correct me if I'm wrong here, but the way that I read U.S.C.922 is that with a state felony conviction the restoration of civil rights is up to the state code. If there is a federal felony then the conviction must be expunged or pardoned by the feds in order for the restoration of civil rights. Am I understanding this correctly?

I guess I need to find out if he was tried by the State of Texas or the U.S.A. He would like to get his CHL, but I told him that he would more than likely have to get an expungment or pardon for that to happen.

I just want to say thanks' for all of the feedback, I want to make sure that we are square and I don't have a chance of getting into trouble.

Posted: **Tue Dec 28, 2010 11:56 am**

Law enforcement agencies work together. If your friend was found in possession of a firearm by a local or state officer, odds are they already have something else to charge him with. The local or state agency will more than likely contact the ATF / FBI in regards to federal charges.

I've personally seen it happen before when I was working as a Paramedic and I had Harris County Sheriff's Dept called out because we had an unresponsive male in a vehicle with multiple firearms, body armor, knives and domestic terrorism books. Turns out he was a felon and HCSO called out the ATF for a federal investigation. I didn't follow up with the case, but I imagine he's Bubba's girl now.

Posted: **Tue Dec 28, 2010 12:28 pm**

I think this thread viewtopic.php?f=7&t=29441 would be benificial to your friend. It appears that if he can get his record sealed, he not only could legally own a firearm but could also get a chl.
In this thread the op had a felony assualt with a deadly weapon but was still able to get his CHL. Deferred adjudication was involved in his case - don't know if it is with your friends case or if it isn't if there is some avenue for him to persue now.

Posted: **Wed Dec 29, 2010 4:55 pm**

Okay, can someone explain why we have P.C 46.04?
Is it so that if the federal law ever changes that we are ahead of the curve?
Or is it a "to heck with you, I'm from TEXAS" kinda thing?

On the other hand he did get the pardon request paper work as well as the restoration of fire arms rights paper work and is going to work on getting all of the required info for those.

So now for scenario time.
My friend lives in a fairly rural area. There is a loud crash in his living room at 2:30 a.m., he retrieves his shotgun(I'm not saying that he has one, because that would be a violation), confronts two armed men in his living room and turns'em upside down with that shotgun, calls 911 and waits. What happens next?

Under Texas P.C. 46.04 he is leagal to possess said shotgun

Under Texas P.C. 9.32 and 9.42 he is justified in shooting said armed men
Under federal law he is illegaly in possession of said shotgun
However, In § 922(g)(1) cases based upon a State felony(in this case it is State convictions) conviction, courts have uniformly looked to the law of the State where the conviction was obtained to determine whether the defendant's civil rights have been restored and whether such action has nullified the conviction's incidental prohibition. on firearms possession.

What does this all really mean?

Is it up to the judge, to the respoding officers to decide to haul him in or not, or would it be up to a jury. I would hate to see my friend end up behind bars, but also believe that he should be able to protect his slice of the pie that he worked very hard to carve.

OTOH, his lawyer did tell him that he could take it to court and spend probably around $10k with no guarantee to get his fire arms right restored.

As a side note his voting rights have been restored and was able to vote in the 2008 and 2010 elections.

Thanks' again everyone for your feedback.

Posted: **Wed Dec 29, 2010 5:04 pm**

An attorney should be able to answer his questions. As to what the legislature had in mind who knows?

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