Understanding How a DWI in Texas Can Affect Your Right to Firearm Possession

Can You Possess a Firearm with a DWI Charge in Texas?

Owning a gun is a constitutional right. The Second Amendment provides that "[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." If you have been convicted of a felony in Texas, however, you probably know—if you are or were a gun owner—that this right to gun ownership is not an absolute right. Conditions apply, conditions that involve your status as a convicted felon.

There are two things to know here: (1) if you have been charged with a DWI in Texas, and already have two prior DWI convictions, a third DWI conviction will result in a felony, which means your right to gun ownership will be frustrated; but (2) if you care about your Second Amendment right, you can fight the charge to ensure your right to own a gun is not obstructed. There are other felony DWI offenses, too, that include a DWI with child passenger, intoxication assault, and intoxication manslaughter. If you have been charged with any of these three offenses, even if it is your first DWI-related offense, a conviction will still result in a felony. An experienced DWI and criminal defense attorney with extensive DWI trial experience is your best option. Anything less could mean a plea deal, which will probably not include the ability to maintain your gun rights.

Doug Murphy has extensive trial experience in DWI and related offenses. His knowledge of the law, the court, the prosecutor's office, and the inherent available challenges to DWI arrests and chemical tests work in your favor. He will listen to your case, investigate as needed, and identify key areas where he can build your defense. He's strategic. He's honest. And he wants to protect your constitutional rights as much as your freedom from jail, steep fines, and license suspension.

The Law on Felony Convictions and Your Right to Own a Gun

Both Texas law and federal law impose restrictions on gun possession and ownership if you have been convicted of a felony. If you have been convicted of a federal crime, like a third or subsequent DWI, DWI with child, intoxication manslaughter, or intoxication assault, you cannot possess or own a firearm.

Federal laws, which are more restrictive, control over Texas law, or any other state law for that matter. In Texas, according to Texas Penal Code § 46.04, a person who has been convicted of a felony but who has completed his or her sentence can own a gun again after five years of completing the said sentence. There are two caveats to this law, however, and they are:

1. You must keep the firearm on your premises and in your home; and
2. If it is reported to the authorities that you possess this gun, then you can be arrested and charged (because federal law does not permit gun ownership after five years, and federal law controls Texas law on the subject).

If you are an avid gun owner, then you do not want to tempt another arrest. You should, if you have been charged with a felony DWI, commit yourself to fighting the charge wholeheartedly. Doug Murphy knows we all make mistakes; he wants to help you fight your charge and protect your Second Amendment rights.

Reinstitution of Gun Rights

As indicated above, gun possession and ownership after a DWI felony conviction is tricky. To be able to own and possess a gun legally—at least in accordance with federal law—then our primary option for the reinstitution of your gun rights is a governor's pardon.

Federal law provides that if your civil rights have been restored by the state that initially stripped you of your civil rights due to a felony conviction, then you can once again legally own and possess guns. This means if you move out of Texas, you cannot own and possess a gun unless Texas restores your civil rights; another state does not have the legal ability to do so.

In Texas, civil rights can be restored by a full pardon by the governor and the Board of Pardons and Paroles. According to Texas Code of Criminal Procedure § 48.05, your application can easily be denied by any of the following:

• An inaccuracy in the court or police records;
• An inaccuracy in the application;
• The Governor believes that it is in the best interests of society not to restore your civil rights;
• You still owe fines or restitution; or
• You are otherwise not eligible to apply.

As you can see, there are both objective and subjective reasons to deny reinstitution of your civil rights, and the most common one is subjective: the governor's belief that it is in the best interests of society not to restore your civil rights.

There are two other circumstances by which your civil rights can be restored, but these options have narrower success rates than a governor's pardon:

1. If you were placed on community supervision, the judge at the time of your release from community supervision can restore your civil rights.
2. If you believe there was a significant constitutional violation, and that violation contributed substantially to your DWI conviction, then you can attempt to have your conviction set aside through a writ of habeas corpus.

In both situations, the odds of success are starkly against you. Society is turning against the idea of a felon with a gun, and the courts are following that trend. Additionally, to prove a significant constitutional violation that can successfully result in a felony DWI conviction to be set aside by a writ of habeas corpus is extremely rare, though possible: it must be a direct appeal issue, but the burden of proof is high to prove the appealable issue.

Generally speaking, chances for the reinstitution of your civil rights, and therefore your gun rights, in the State of Texas are very limited. Thus, fighting your felony charge is of significant importance.

Contact a Houston DWI & Criminal Defense Attorney

Owning and possessing a gun is your constitutional right, but it is not an absolute right: it can be taken from you. A conviction of a felony DWI offense is one way your civil rights can be denied. If you are a gun owner in Texas and have recently been arrested and charged with a DWI, you should contact an experienced criminal defense lawyer with specific trial and DWI experience. Your civil rights are at stake; you owe it to yourself to fight the charge.

Reputable Board Certified DWI and Board Certified criminal defense attorney Doug Murphy has the experience, the insight, and the resources to fight your charge. Contact Murphy & McKinney Law Firm, P.C. online or by phone at 713-229-8333 today to discuss your case.