Twenty years ago I was on felony probation for a non violent offense. It was expunged after I completed my probation, so it hasn't shown up on any background checks over the past twenty years, but any private investigator would have the ability to dig it up. So anyway, I went into a pawn shop last week, in Texas, to buy a shotgun. They gave me an application that asked me if I've ever had any felonies. I didn't want to get into any legal trouble for lying to the FBI on a background check, so I answered "yes". When the owner read it, he told me that I couldn't buy the shotgun because of the felony. So should I answer "no" next time, since it was expunged? Or could I get into trouble if I say that?
Can I buy a gun with an expunged felony?
- Thread Starter dpow
- Start date
Zigner
Well-Known Member
You will likely need to have your rights restored. It is not a simple process, so you should speak to a local attorney.
army judge
Super Moderator
If you answer YES, you'll regret it.
However, here's better news.
Under Texas state law a convicted felon may possess a firearm in the residence, in which he lives, once five years have elapsed from the date his sentence was discharged. This means the later of release from prison or parole. This is not true under federal law.
Hold on, regardless as to what Texas law permits, federal law says no.
Buying a firearm from a federally licensed dealer will be impossible because of the question which brought you here.
A private seller COULD be your work around.
I'm not advising you to do so, just saying that others in your position have.
Read on for a more detailed discussion:
Guides: Gun Laws: Felons & Firearms
flyingron
Well-Known Member
What do you mean by expunged? Did you get the Judicial Clemency and have your conviction set aside? If so, that did restore your firearm rights (fully) as far as Texas is concerned and that should cover you with the feds as well.
mightymoose
Moderator
I agree with above and wonder if you are misusing the term "expunged".
It does not happen automatically. Did you initiate the process sometime after parole/probation?
Also, 20 years ago... Any chance you were a minor at the time? Perhaps you are thinking it went away after turning 18?
If you know for sure it was expunged there is an appeal process you can pursue over the application denial. You are not at the mercy of the guy at the store.
army judge
Super Moderator
......
Part of my plea bargain was that I was allowed to have it expunged after I completed my probation. So immediately after my probation, I filled out the expungement paperwork. A couple weeks later it was processed and I was notified that the expungement was completed and approved. It has never shown up on any background checks in the past twenty years. I have no idea how it effects my firearms rights because I have never tried to buy one until now.
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mightymoose
Moderator
If you are confident the record was expunged then look into the appeal process for the firearm allocation. It may take awhile.
PayrollHRGuy
Well-Known Member
The appeal process is based on a NO SALE result from the NCIC background check. Not a refusal based on an answer on the 4473.
That particular FFL would be a fool to ever sell the OP a firearm.
Zigner
Well-Known Member
If a restoration of rights was part of the "expungement" ~20 years ago, then the OP would be fine to buy a firearm. In fact, the FFL should have processed the application instead of just refusing it outright.
PayrollHRGuy
Well-Known Member
No, in the instructions for question 11c there is an exception that would have allowed the OP to answer the question as "No". Once it has been answered "Yes" the FFL's hand are tied.
EXCEPTION: A person who has been convicted of a felony, or any other crime, for which the judge could have imprisoned the person for more than one year, or who has been convicted of a misdemeanor crime of domestic violence, is not prohibited from purchasing, receiving, or possessing a firearm if: (1) under the law of the jurisdiction where the conviction occurred, the person has been pardoned, the conviction has been expunged or set aside, or the person has had their civil rights (the right to vote, sit on a jury, and hold public office) taken away and later restored, AND (2) the person is not prohibited by the law of the jurisdiction where the conviction occurred from receiving or possessing firearms. Persons subject to this exception, or who receive relief from disabilities under 18 U.S.C. 925(c), should answer "no" to the applicable question.
Zigner
Well-Known Member
Thanks - I didn't look at the form first. The OP's problem was that he didn't read the form's instructions either. This should never have come up for him had he simply followed the printed instructions.
flyingron
Well-Known Member
Yep, there's no way you're getting approval unless you answer YES to the first question (Are you the actual buyer) and NO to all the others.
The poster's statement of his disposition is till nebulous and doesn't correspond with the actual laws of Texas. Felonies are not "expunged" in Texas. PERIOD. It matters not what he thinks he got in the plea bargain.
The relief for felons is having the conviction set aside via judicial clemency. If that is what has happened, then he's free to (as PayrollGuy points out) answer NO on the form and get approved.
The auto five-year thing that AJ references doesn't do squat for the federal forms.
The poster's statement of his disposition is till nebulous and doesn't correspond with the actual laws of Texas. Felonies are not "expunged" in Texas. PERIOD. It matters not what he thinks he got in the plea bargain.
The relief for felons is having the conviction set aside via judicial clemency. If that is what has happened, then he's free to (as PayrollGuy points out) answer NO on the form and get approved.
The auto five-year thing that AJ references doesn't do squat for the federal forms.
Zigner
Well-Known Member
Welllll...
If the plea bargain was worded such that the charges would be dismissed upon successful completion of probation, then the felony would be eligible for expungement ("expunction" in TX). Of course, as has been mentioned, it's not automatic (unless it was so written in to the plea bargain).
army judge
Super Moderator
Until the feds remove the disability, all a felon can do is POSSESS the firearm in his abode, insofar as Texas is concerned (after five years has transpired).
Texas allows the felon to vote, sit on a jury, etc...
Texas restores MOST of the rights a felon never regains in other states.
I belong to a trial lawyers association that advocates the complete restoration of all rights felons have lost after a waiting period, during which time the person demonstrates her/his ability to live life as a responsible citizen.
Texas doesn't allow the felon to "open carry", or receive a "ccp".
Former felons get popped in Texas frequently, confusing the right to own the firearm in her/his abode, with the right non-felons have to carry and transport a firearm.
Under Texas state law a convicted felon may possess a firearm in the residence, in which he lives, once five years have elapsed from the date his sentence was discharged. This means the later of release from prison or parole. This is not true under federal law. So, while a convicted felony could lawfully possess a firearm in these very limited circumstance under state law, he could possibly be charged and convicted under federal law, even though current federal policy is to defer to state law on this issue.
Under Texas Penal Code §§ 12.33, 46.04, the unlawful possession of a firearm is a third degree felony with a punishment range of two to ten years for a defendant with one prior felony conviction and fine up to $10,000.
In legal terms, the word "possession" is an abstract term, but Texas courts, like most other state courts, have the defined as the term as follows: "Possession means actual care, custody, control or management. Possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control."
To be convicted as a felon in the unlawful possession of a firearm, the State must prove only that 1) a person, 2) who has been convicted of a felony, 3) possessed a firearm, 4) after conviction and before the fifth anniversary of the person's release from prison or parole or other community supervision. Under Texas Penal Code § 6.01(a), the State must also prove the defendant voluntarily possessed the firearm.
There is only ONE way for a felon to FULLY regain all of her/his rights to possess/transport/carry/use a firearm in Texas, that is obtaining a full pardon. Given the very limited number of pardons issued from the governor's office, a pardon is extremely unlikely.
A Texas lawyer offers additional discussion of the question at hand:
Federal felon in possession of a firearm statutes (prohibited person)… Sherman & Plano, TX Criminal Defense Lawyer
Texas allows the felon to vote, sit on a jury, etc...
Texas restores MOST of the rights a felon never regains in other states.
I belong to a trial lawyers association that advocates the complete restoration of all rights felons have lost after a waiting period, during which time the person demonstrates her/his ability to live life as a responsible citizen.
Texas doesn't allow the felon to "open carry", or receive a "ccp".
Former felons get popped in Texas frequently, confusing the right to own the firearm in her/his abode, with the right non-felons have to carry and transport a firearm.
Under Texas state law a convicted felon may possess a firearm in the residence, in which he lives, once five years have elapsed from the date his sentence was discharged. This means the later of release from prison or parole. This is not true under federal law. So, while a convicted felony could lawfully possess a firearm in these very limited circumstance under state law, he could possibly be charged and convicted under federal law, even though current federal policy is to defer to state law on this issue.
Under Texas Penal Code §§ 12.33, 46.04, the unlawful possession of a firearm is a third degree felony with a punishment range of two to ten years for a defendant with one prior felony conviction and fine up to $10,000.
In legal terms, the word "possession" is an abstract term, but Texas courts, like most other state courts, have the defined as the term as follows: "Possession means actual care, custody, control or management. Possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control."
To be convicted as a felon in the unlawful possession of a firearm, the State must prove only that 1) a person, 2) who has been convicted of a felony, 3) possessed a firearm, 4) after conviction and before the fifth anniversary of the person's release from prison or parole or other community supervision. Under Texas Penal Code § 6.01(a), the State must also prove the defendant voluntarily possessed the firearm.
There is only ONE way for a felon to FULLY regain all of her/his rights to possess/transport/carry/use a firearm in Texas, that is obtaining a full pardon. Given the very limited number of pardons issued from the governor's office, a pardon is extremely unlikely.
A Texas lawyer offers additional discussion of the question at hand:
Federal felon in possession of a firearm statutes (prohibited person)… Sherman & Plano, TX Criminal Defense Lawyer
flyingron
Well-Known Member
The Texas law doesn't permit that. THERE IS NO SUCH THING AS EXPUNCTION OF A CONVICTION period. A prosecutor can not make and a judge can't accept a plea bargain of that nature. What he likely had was a deferred adjudication. This indeed would result in the restoration of gun rights as the conviction would be vacated and expunged (if he behaved). However, trying to get him to state exactly what is going on is making it hard to give definitive answers.
The five-year relief, and non-disclosure orders, on the other hand, do not undo all the disabilities.
army judge
Super Moderator
Not that you require my concurrence, but you have accurately described the process.
, insofar as federal and Texas law is concerned.
A convicted felon need not wait five years to pass in order for other citizenship rights to be restored, as in voting, sitting on a jury.
Former felons are also barred from running for state or local office in Texas.
https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2019/kp0251.pdf
flyingron
Well-Known Member
I was specifically talking about the firearms disabilities. I don't disagree with your statements.
