What If You’re Caught With a Gun and You’re Not Supposed to Have One?

Texas is known for its strong gun culture and relatively broad firearm rights, but those rights are not absolute. Both state and federal laws place strict limits on who can legally possess, carry, or purchase a firearm. If you’re caught with a gun when you are not supposed to have one, the consequences can be severe.

This issue is especially important because many people misunderstand the restrictions. For instance, someone may assume that because Texas allows permitless carry, they can have a firearm regardless of past convictions. Or a person might not realize that protective orders, pending criminal charges, or even certain misdemeanor convictions can temporarily or permanently bar them from owning a gun.

Understanding what happens if you’re caught with a firearm you’re not legally allowed to possess means looking at both Texas law and federal law, as well as the real-life situations where these laws collide.

Who Is Prohibited from Having a Gun in Texas?

Texas law generally allows adults who are not legally disqualified to own and carry firearms. But there are significant restrictions on who may legally possess a gun. Under both Texas and federal law, the following categories of people are prohibited:

1. Convicted Felons
   If you have been convicted of a felony, you cannot legally possess a firearm in Texas. This is until at least five years after completing your sentence, including parole or probation. Even then, Texas law only allows you to possess a firearm in your home. Federal law is stricter—it prohibits felons from possessing firearms for life unless their rights are formally restored.
2. People with Certain Domestic Violence Convictions
   A misdemeanor conviction for domestic violence triggers a federal firearm prohibition. Even if the case was minor, the lifetime ban applies under federal law, and Texas courts enforce it.
3. Subjects of Protective or Restraining Orders
   If a court issues a protective order against you for domestic violence, stalking, or harassment, you cannot legally possess a firearm for the duration of the order. This includes temporary orders.
4. People Adjudicated as Mentally Ill or Committed
   Federal law prohibits firearm possession by anyone adjudicated mentally defective or committed to a mental institution. Texas also has provisions allowing courts to restrict access to firearms for individuals deemed dangerous due to mental health issues.
5. Minors
   Individuals under 18 are generally prohibited from possessing handguns, with limited exceptions for hunting, target practice, or being under direct supervision of a parent or guardian.
6. Undocumented Immigrants and Certain Non-Citizens
   Federal law prohibits undocumented immigrants and certain nonimmigrant visa holders from possessing firearms.

These categories mean that not everyone in Texas can legally own or carry a firearm, despite the state’s reputation as one of the most gun-friendly jurisdictions in the U.S.

What Happens If You’re Caught?

The penalties for being caught with a gun when you’re not supposed to have one depend on the reason for your prohibition and whether state or federal prosecutors handle the case.

Under Texas Law

• Felons in Possession: It’s a third-degree felony if you’re caught with a gun within five years of release from confinement, parole, or probation. After five years, if you have a firearm outside your home, it’s still illegal. Penalties include 2 to 10 years in prison and fines up to $10,000.
• Protective Orders: If you’re subject to a protective order and caught with a gun, it’s a Class A misdemeanor, punishable by up to one year in jail and a fine up to $4,000.
• Other Restrictions: Juveniles and others who are barred face varying misdemeanor or felony charges depending on the circumstances.

Under Federal Law

Federal firearm charges are often harsher and carry longer potential sentences.

• Felon in Possession (18 U.S.C. § 922(g)): Up to 10 years in federal prison.
• Domestic Violence Convictions: Lifetime ban, with up to 10 years in prison for violations.
• Immigration Status Violations: Non-citizens caught with firearms face deportation in addition to federal charges.

It’s also important to note that if federal authorities decide to prosecute, you can face charges in federal court.

Common Situations Where People Get Caught

Many people facing unlawful possession charges didn’t set out to break the law but ended up in the wrong place at the wrong time. Some common scenarios include:

• Traffic Stops: A routine stop where a firearm is discovered during a search can lead to charges.
• Domestic Disputes: Police called to a domestic disturbance often ask about weapons in the home. If a prohibited person is found with a firearm, that alone can lead to arrest.
• Probation or Parole Checks: Officers visiting a probationer’s home who find a firearm can file new charges.
• Background Checks: Attempting to purchase a gun and failing a federal background check can trigger an investigation.

These cases often come down to whether the person knowingly possessed the firearm, but courts rarely accept ignorance of the law as a defense.

Possible Defenses

If you are charged with unlawful possession of a firearm, defenses may be available depending on the facts of your case. Common defenses include:

• Lack of Possession: You must knowingly possess the firearm to be guilty. If the weapon was not yours, or you had no knowledge of it being in your car or home, that may form a defense.
• Illegal Search and Seizure: If police violated your Fourth Amendment rights by conducting an unlawful search, evidence of the firearm may be excluded.
• Restored Rights: In some cases, individuals may have had their rights restored under state law or by a pardon, which can be raised as a defense.
• Expiration of Time Limits: Under Texas law, felons may possess a firearm in their home after five years. If charged despite being beyond that period, this can be a defense under state law—though not federal.

Defenses are highly case-specific and depend on both the facts and the jurisdiction.

Long-Term Consequences

Even beyond the immediate penalties, being caught with a firearm when prohibited can have lasting consequences. These include:

• Permanent Criminal Record: Felony convictions limit job opportunities, housing access, and more.
• Loss of Firearm Rights: Additional convictions make it nearly impossible to ever restore firearm rights.
• Immigration Consequences: For non-citizens, any firearm conviction can lead to deportation or denial of immigration benefits.
• Impact on Custody Cases: In family court, being caught with a firearm illegally can affect child custody and visitation decisions.

The ripple effects can last a lifetime, making it critical to take charges seriously.

Restoring Gun Rights

In some cases, it may be possible to restore gun rights, but the process is complex.

• Texas State Law: Felons regain limited rights after five years, but only for possession inside the home.
• Federal Law: Restoration requires a presidential pardon or expungement, as federal law generally overrides state allowances.
• Protective Orders: Once a protective order expires, gun rights may be restored, but this depends on whether other prohibitions exist.

Because restoration is limited and difficult, it is far easier to avoid unlawful possession in the first place than to regain rights after losing them.

Why Intent Matters

One common misunderstanding is that someone who “didn’t know” they were prohibited will avoid prosecution. Unfortunately, ignorance of the law is not a defense. What does matter is whether you knowingly possessed the firearm. If the gun was found in your car but you did not know it was there, or if someone else placed it in your belongings, the prosecution must prove beyond a reasonable doubt that you knew about it.

However, proving lack of knowledge can be difficult, and many prosecutors argue constructive possession (that you had control over the area where the gun was found) is enough.

The Bigger Picture: Texas Culture vs. Federal Law

Texas has a reputation as one of the most pro-gun states, especially with recent laws expanding permitless carry. But those cultural attitudes often create a false sense of security for people who are actually prohibited. While Texas law may allow limited restoration of rights, federal law usually does not—and federal prosecutors take firearm violations seriously.

This means someone might believe they are acting legally under Texas law but still face severe federal penalties. For example, a felon who has completed probation and keeps a firearm at home may be safe under Texas law but still be prosecuted in federal court.

What To Do If You’re Charged

If you are arrested for unlawful firearm possession, your first step should be contacting an experienced criminal defense attorney. Do not attempt to explain or justify yourself to police, as statements you make can be used against you.

An attorney can review whether the search was lawful, whether you were truly prohibited, and whether defenses may apply. They can also negotiate with prosecutors to reduce charges or seek alternative resolutions such as probation.

Conclusion

Being caught with a gun when you are not supposed to have one in Texas is a serious offense that blends state and federal law. Even in a gun-friendly state, restrictions exist—and violating them can lead to jail time, federal prison, and lifelong consequences. If you are in a prohibited category, the safest course is to avoid any firearm possession entirely. If you are charged, legal representation is critical to protect your rights and potentially reduce the impact on your future.