Necessity Defense in Texas Felon in Possession Cases

When a person is convicted of a felony offense in Texas, he or she loses the right to possess a firearm, according to Texas Penal Code Section 46.04. A person cannot have a firearm in his or her possession until at least five years have passed after completing his or her sentence. Additionally, the person only can possess the firearm at his or her residence.

If a convicted felon is found to be in possession of a firearm, he or she could face criminal charges. The offense would be considered a third-degree felony, which could mean another felony added to the person’s criminal history, up to 10 years in prison and up to $10,000 in fines. However, it is possible to assert an affirmative defense called “necessity.”

An affirmative defense is a fact or set of facts that could potentially defeat or mitigate the legal repercussions of a person’s unlawful conduct. In this case, a necessity defense would mean the person knew the act was illegal, but committed it for a valid reason, such as his or her safety.

To utilize the necessity defense in a Texas felon in possession of a firearm charge, the person facing criminal charges must argue he or she reasonably believed having the firearm in his or her possession was necessary to avoid imminent danger or harm.

The Texas Court of Appeals found that the defense of necessity is available in a prosecution for possession of a firearm by a felon, but under appropriate facts. The Texas Court Appeals found this to be a valid defense after hearing a case in which a felon was charged with possession of a firearm.

The felon, who had been convicted of attempted capital murder, was a building superintendent for the Texas Department of Corrections while in prison. He alleged he was in danger of being murdered by prison gangs as a result of his previous position. He argued he was kidnapped and faced imminent danger, so the weapon he possessed was for his safety.

This does not means the necessity defense will be applicable to all cases in which a felon is charged with possession of a firearm. Whether the defense would be allowed largely would be determined by the facts and the unique circumstances of that particular case.

However, for the necessity defense to be used in a felon in possession of a firearm charge, the attorney for the accused must raise it and effectively prove it with a preponderance of evidence. The defense lawyer would be required to submit sufficient proof, but the standard is less than that of a criminal conviction.

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