No, a person who is subject to a qualifying Texas protective order generally cannot lawfully possess a firearm while the order is in effect. Texas protective-order law can expressly prohibit firearm possession, and Texas Penal Code §25.07 makes knowingly or intentionally possessing a firearm in violation of certain protective orders a criminal offense. Federal law may impose a separate firearm prohibition when the order meets 18 U.S.C. §922(g)(8).
What Does a Texas Protective Order Do?
A protective order is a court order designed to protect an individual or family or household member from specified conduct. Under Texas Family Code §85.022, when a court finds that a person committed family violence, the protective order may prohibit that person from possessing a firearm, subject to a limited exception for certain actively employed full-time paid peace officers.
The standard protective-order form must advise the restrained person about the firearm prohibition and potential consequences of noncompliance. The order remains enforceable according to its terms unless it is properly superseded or changed by a court.
Is Firearm Possession a Crime?
Potentially, yes. Texas Penal Code §25.07 makes it an offense for a person, in violation of certain listed court orders or bond conditions, to knowingly or intentionally possess a firearm. The statute covers protective orders issued under several provisions of Texas law, including Chapter 85 of the Family Code.
The basic offense under §25.07 is generally a Class A misdemeanor. The statute provides enhanced punishment in specified circumstances, including certain prior convictions and situations involving assault or stalking. Therefore, possession can create criminal exposure even if the firearm was legally purchased before the order was issued.
Does the Federal Gun Ban Also Apply?
Yes, federal law can independently prohibit firearm possession. Under 18 U.S.C. §922(g)(8), a person is prohibited from possessing, shipping, transporting, or receiving firearms or ammunition if subject to a qualifying court order involving an intimate partner or that partner’s child.
Not every protective order automatically satisfies §922(g)(8). The federal statute contains specific requirements concerning notice and opportunity to participate in a hearing, the conduct restrained by the order, and either a finding that the person represents a credible threat to physical safety or an explicit prohibition on physical force reasonably expected to cause bodily injury.
What If the Gun Was Owned Before the Order?
Prior ownership does not necessarily allow continued possession. If the protective order prohibits firearm possession, keeping a gun purchased before the order can still violate Texas law. Federal law may likewise prohibit continued possession if the order qualifies under §922(g)(8).
The legal issue is possession, not merely the purchase date. A person should not assume an existing firearm is exempt simply because it was lawfully acquired before the protective order.
Can the Protective Order Suspend a Carry License?
Yes. Texas Family Code §85.022 provides that a protective order must suspend a handgun license held by a person found to have committed family violence. The court clerk must send the order to the Texas Department of Public Safety, which records the suspension and demands surrender of the license.
License suspension is separate from the broader prohibition on firearm possession. A person should not interpret license suspension as meaning an unlicensed firearm may still lawfully be possessed.
How Long Does the Restriction Last?
The duration depends on the protective order. Under Texas Family Code §85.025, many protective orders are effective for the period stated in the order, generally up to two years. Certain orders can last longer when statutory conditions are met, including specified felony family-violence conduct, serious bodily injury, or qualifying prior protective orders.
What Should Someone Do With Existing Firearms?
A person who becomes subject to a firearm prohibition should not simply keep firearms at home or assume that moving them to a vehicle solves the problem. Lawful disposition, transfer, storage, or surrender can involve state and federal law.
Because mistakes can result in criminal charges, anyone subject to a protective order should obtain advice from a Texas firearms or criminal-defense attorney before possessing, transferring, or otherwise handling a firearm.
Conclusion
Owning a gun while subject to a qualifying protective order is generally not legal in Texas when the order prohibits firearm possession. Texas Penal Code §25.07 can make knowing or intentional possession a criminal offense, while federal law may impose an additional prohibition under 18 U.S.C. §922(g)(8).
The exact result depends on the type of protective order, its terms, and whether federal requirements are satisfied. Because firearm restrictions can carry serious criminal consequences, the specific court order should be reviewed carefully before taking any action involving a firearm.
