buying a handgun in Texas. Law??
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buying a handgun in Texas. Law??
I was convicted of a family violence charge 8 years ago and have not had any criminal charges since. Can I buy a handgun in Texas? Or am I forever banned?
From the ATF FAQ http://www.atf.treas.gov/firearms/faq/faq2.htm#p1
Q. MISDEMEANOR CRIME OF DOMESTIC VIOLENCE
(Q1) What is a “misdemeanor crime of domestic violence�? [Back]
A “misdemeanor crime of domestic violence� means an offense that:
1.
is a misdemeanor under Federal or State law;
2.
has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon; and
3.
was committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.
However, a person is not considered to have been convicted of a misdemeanor crime of domestic violence unless:
1.
the person was represented by counsel in the case, or knowingly and intelligently waived the right of counsel in the case; and
2.
in the case of a prosecution for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either –
(a) the case was tried by a jury, or
(b) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.
In addition, a conviction would not be disabling if it has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the jurisdiction in which the proceedings were held provides for the loss of civil rights upon conviction for such an offense) unless the pardon, expunction, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms, and the person is not otherwise prohibited by the law of the jurisdiction in which the proceedings were held from receiving or possessing firearms.
[18 U.S.C. 921(a)(33), 27 CFR 478.11]
(Q2) What is the effective date of this disability? [Back]
The law was effective September 30, 1996. However, the prohibition applies to persons convicted of such misdemeanors at any time, even if the conviction occurred prior to the law’s effective date.
(Q3) Does application of the law to persons convicted prior to the law’s effective date violate constitutional rights? [Back]
No. This provision is not being applied retroactively or in violation of the Ex Post Facto clause of the Constitution. This is because the law does not impose additional punishment upon persons convicted prior to the effective date, but merely regulates the future possession and receipt of firearms on or after the effective date. The provision is not retroactive merely because the person’s conviction occurred prior to the effective date.
(Q4) X was convicted of misdemeanor assault on October 10, 1996, for beating his wife. Assault has as an element the use of physical force, but is not specifically a domestic violence offense. May X lawfully possess firearms or ammunition? [Back]
No. X may not legally possess firearms or ammunition.
[18 U.S.C. 922(g)(9), 27 CFR 478.32(a)(9)]
(Q5) X was convicted of a misdemeanor crime of domestic violence on September 20, 1996, 10 days before the effective date of the statute. He possesses a firearm on October 10, 2004. Does X lawfully possess the firearm? [Back]
No. If a person was convicted of a misdemeanor crime of domestic violence at any time, he or she may not lawfully possess firearms or ammunition on or after September 30, 1996.
[18 U.S.C. 922(g)(9), 27 CFR 478.32(a)(9)]
You may find more references in the ATF FAQs.
Q. MISDEMEANOR CRIME OF DOMESTIC VIOLENCE
(Q1) What is a “misdemeanor crime of domestic violence�? [Back]
A “misdemeanor crime of domestic violence� means an offense that:
1.
is a misdemeanor under Federal or State law;
2.
has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon; and
3.
was committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.
However, a person is not considered to have been convicted of a misdemeanor crime of domestic violence unless:
1.
the person was represented by counsel in the case, or knowingly and intelligently waived the right of counsel in the case; and
2.
in the case of a prosecution for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either –
(a) the case was tried by a jury, or
(b) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.
In addition, a conviction would not be disabling if it has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the jurisdiction in which the proceedings were held provides for the loss of civil rights upon conviction for such an offense) unless the pardon, expunction, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms, and the person is not otherwise prohibited by the law of the jurisdiction in which the proceedings were held from receiving or possessing firearms.
[18 U.S.C. 921(a)(33), 27 CFR 478.11]
(Q2) What is the effective date of this disability? [Back]
The law was effective September 30, 1996. However, the prohibition applies to persons convicted of such misdemeanors at any time, even if the conviction occurred prior to the law’s effective date.
(Q3) Does application of the law to persons convicted prior to the law’s effective date violate constitutional rights? [Back]
No. This provision is not being applied retroactively or in violation of the Ex Post Facto clause of the Constitution. This is because the law does not impose additional punishment upon persons convicted prior to the effective date, but merely regulates the future possession and receipt of firearms on or after the effective date. The provision is not retroactive merely because the person’s conviction occurred prior to the effective date.
(Q4) X was convicted of misdemeanor assault on October 10, 1996, for beating his wife. Assault has as an element the use of physical force, but is not specifically a domestic violence offense. May X lawfully possess firearms or ammunition? [Back]
No. X may not legally possess firearms or ammunition.
[18 U.S.C. 922(g)(9), 27 CFR 478.32(a)(9)]
(Q5) X was convicted of a misdemeanor crime of domestic violence on September 20, 1996, 10 days before the effective date of the statute. He possesses a firearm on October 10, 2004. Does X lawfully possess the firearm? [Back]
No. If a person was convicted of a misdemeanor crime of domestic violence at any time, he or she may not lawfully possess firearms or ammunition on or after September 30, 1996.
[18 U.S.C. 922(g)(9), 27 CFR 478.32(a)(9)]
You may find more references in the ATF FAQs.
Ø resist
Take away the second first, and the first is gone in a second.
NRA Life Member, TSRA, chl instructor
Take away the second first, and the first is gone in a second.
NRA Life Member, TSRA, chl instructor
I'm not a lawyer, that's why i gave you the reference to the BATFE. I don't know what you might do to get the conviction overturned or expunged.sandman70 wrote:So you are telling me that because I did something stupid when I was younger and then I plead no contest to a misdemeaner charge of family violence that I will never legally be able to own a firearm?? Is there anything that I can do?
That's the only avenue i see. But once again, I'm not a lawyer.
Ø resist
Take away the second first, and the first is gone in a second.
NRA Life Member, TSRA, chl instructor
Take away the second first, and the first is gone in a second.
NRA Life Member, TSRA, chl instructor
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Lucky45
- Senior Member
- Posts: 475
- Joined: Wed Sep 20, 2006 8:29 pm
- Location: Missouri City, TX
- Contact:
I have a friend who is a legal assistant and she says that domestic violence charge is nothing to play with these days. Because it cannot be expunged (maybe with money and lawyer) from your record and it comes up on background checks.
Even if someone messes around and says they will call the police and say that you did something, even if they don't go to court with the case, that arrest still stays on your record. No more expunging.
I already see the back row jumping up. But I have watched COPS long enough to see that at 2am and raining, police will make that guy leave the house voluntarily or in silver bracelets.
So guys don't let people play around with that charge, because a guy I know personally was not able to get a job for a good year because of this domestic issue. She called and the outcome is the couldn't find a job in his field.
Even if someone messes around and says they will call the police and say that you did something, even if they don't go to court with the case, that arrest still stays on your record. No more expunging.
I already see the back row jumping up. But I have watched COPS long enough to see that at 2am and raining, police will make that guy leave the house voluntarily or in silver bracelets.
So guys don't let people play around with that charge, because a guy I know personally was not able to get a job for a good year because of this domestic issue. She called and the outcome is the couldn't find a job in his field.
at this point, there are no alternatives for you. in order to get something expunged, there must not be a conviction, or a plea of guilt or no contest. when you are arrested and/or indicted, that will show up on your criminal history. when you are either cleared of those charges, or if they are dismissed, you can have that record of your arrest expunged from your criminal history. a conviction will not be removed unless you are pardoned.
a pardon is a petition to the board of pardons and paroles for a pardon by the governor. something like this is highly unlikely, and it still won't necessarily guarantee you a state license. the state can still withhold issuing you certain licenses even if you've been pardoned. a pardon has more political ramifications than anything else. after a pardon, you are eligible to vote, and hold public office.
another law i don't really agree with. you can get what amounts to a ticket for domestic violence. class C assault in Texas can be "an offensive touch." most police agencies have a zero tolerance for domestic violence, and understandably so, because the state says that police will make arrests of violators (another case of people who know little about domestic violence trying to make laws about it). but the problem i have with it is that now the general police mentality is usually one or both are getting at least a ticket, regardless of what happened and the severity. if someone puts their hand on another person, and all it does is offend that person, it's enough for a ticket. most people aren't particularly knowledgeable on this part of it, and don't realize the repercussions. they get their ticket and pay it, thinking no big deal. a class A requires that the assault include a touch that causes the victim pain; quite a bit more to get to that, and certainly something worthy of prosecution.
i think the law should have exempted a class C offense because of the discretion allowed by the state. police have the power to act as the complainant on a charge of domestic violence. while most prosecutors don't really want to try a case without a cooperating witness, most of those are dropped if the witness doesn't wish to pursue. the class Cs are a bit different. they are tried in municipal court where it's handled just like traffic court. the prosecutor doesn't care whether the victim or the officer testifies as the complainant. that being the case, 99.9% of class C charges for domestic violence will plead out. no contest equates to a conviction, even if you take probation. it's not like a traffic ticket that goes away if you complete probation.
and don't take this as my condoning of domestic violence; quite the contrary. but domestic violence goes both ways. there are male victims, female victims, and sometimes both are victims in the same instance. there are plenty of people who get charged with a class C domestic violence, and it's weak, or the problem could have been resolved through other means. sometimes zero tolerance isn't the best solution; particularly when it comes to law enforcement. police work is such a case by case response that you can't blanket a specific problem with a general solution.
when this went into effect, i remember a handful of good cops promptly looking for new jobs and new careers. it's one of the few laws that was retroactive.
a pardon is a petition to the board of pardons and paroles for a pardon by the governor. something like this is highly unlikely, and it still won't necessarily guarantee you a state license. the state can still withhold issuing you certain licenses even if you've been pardoned. a pardon has more political ramifications than anything else. after a pardon, you are eligible to vote, and hold public office.
another law i don't really agree with. you can get what amounts to a ticket for domestic violence. class C assault in Texas can be "an offensive touch." most police agencies have a zero tolerance for domestic violence, and understandably so, because the state says that police will make arrests of violators (another case of people who know little about domestic violence trying to make laws about it). but the problem i have with it is that now the general police mentality is usually one or both are getting at least a ticket, regardless of what happened and the severity. if someone puts their hand on another person, and all it does is offend that person, it's enough for a ticket. most people aren't particularly knowledgeable on this part of it, and don't realize the repercussions. they get their ticket and pay it, thinking no big deal. a class A requires that the assault include a touch that causes the victim pain; quite a bit more to get to that, and certainly something worthy of prosecution.
i think the law should have exempted a class C offense because of the discretion allowed by the state. police have the power to act as the complainant on a charge of domestic violence. while most prosecutors don't really want to try a case without a cooperating witness, most of those are dropped if the witness doesn't wish to pursue. the class Cs are a bit different. they are tried in municipal court where it's handled just like traffic court. the prosecutor doesn't care whether the victim or the officer testifies as the complainant. that being the case, 99.9% of class C charges for domestic violence will plead out. no contest equates to a conviction, even if you take probation. it's not like a traffic ticket that goes away if you complete probation.
and don't take this as my condoning of domestic violence; quite the contrary. but domestic violence goes both ways. there are male victims, female victims, and sometimes both are victims in the same instance. there are plenty of people who get charged with a class C domestic violence, and it's weak, or the problem could have been resolved through other means. sometimes zero tolerance isn't the best solution; particularly when it comes to law enforcement. police work is such a case by case response that you can't blanket a specific problem with a general solution.
when this went into effect, i remember a handful of good cops promptly looking for new jobs and new careers. it's one of the few laws that was retroactive.
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ElGato
- Senior Member
- Posts: 1073
- Joined: Sun Dec 26, 2004 7:35 am
- Location: Texas City, Texas
- Contact:
+1 Chris
Some laws are passed without enough study of the in real life effect.
I remember when if a couple had an argument and the Law showed up, the man was arrested even if the woman appeared to be the cause, that was a sure end to the conflict for the time being and left her at home with the children and they knew they wouldn't have to come back again that night.
I would guess that most of those cases were back together the next day and like Chris said most would not contest.
Some laws are passed without enough study of the in real life effect.
I remember when if a couple had an argument and the Law showed up, the man was arrested even if the woman appeared to be the cause, that was a sure end to the conflict for the time being and left her at home with the children and they knew they wouldn't have to come back again that night.
I would guess that most of those cases were back together the next day and like Chris said most would not contest.
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