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EspañolIf the abuser's gun(s) is taken away, what will happen to it?
In Texas, most counties do not have a procedure for storing the abuser’s gun. Even though the law says the abuser is not allowed to have a gun, there is no guarantee that the gun will be removed and stored. However, if the abuser is caught possessing (having) a firearm in violation of the law, s/he should be arrested and prosecuted for possession.
Who do I notify if I think the abuser should not have a gun?
If you think the abuser is violating state firearm laws, you can call your local police or sheriff department or the State Police. If you think the abuser is violating federal firearm laws, you can call the Bureau of Alcohol, Tobacco and Firearms (ATF).
You can find contact information for sheriff departments in your area on our TX Sheriff Departments page.
You can find multiple ATF field offices in Texas on the ATF website. For reporting illegal firearm activity, a person can also call 1-800-ATF-GUNS (1-800-283-4867). Many ATF offices have victim advocates on staff (called “victim/witness coordinators”) and so perhaps you may ask to speak one of these advocates if you are having a hard time connecting with (or receiving a call back from) an ATF officer.
A local domestic violence organization in your area may also be able to answer your questions and assist you in talking to the necessary law enforcement officials. You will find contact information for organizations in your area on our TX Advocates and Shelters page.
Note: Generally, the abuser does not have to have knowledge of the law in order to be arrested for breaking the law. If the abuser has or buys a gun in violation of the law, the abuser can be arrested, whether or not s/he knows that s/he was in violation of the law.1
1United States v. Lippman, 369 F. 3d 1039 (8th Cir. 2004); United States v. Henson, 55 F. Supp. 2d 528 (S.D. W.V. 1999)
What is the penalty for violating Texas state gun laws?
Texas state law says it is a Class A misdemeanor, punishable by up to one year in jail and/or up to a $4,000 fine1 if the abuser:
- has a firearm and there is a protective order in place against him/her (but there is an exception for peace officers);2 or
- has been convicted of a Class A domestic-violence misdemeanor and has a gun in the 5 years following his/her release from jail/prison or community supervision.3
It is a felony of the third degree, punishable by a prison term of between 2-10 years and a fine of up to $10,000 if the abuser:4
- has been convicted of a felony (does not have to be domestic violence-related) and has a gun in the 5 years following his/her release from jail/ prison, parole, or community or mandatory supervision. Also, after this 5-year period, the convicted felon can only have a gun at his/her home, not in other locations.5
In addition, federal laws, which apply to all states, also restrict a person’s right to have a gun if s/he has been convicted of certain crimes or if there is an order of protection against him/her that meets certain requirements. Violating federal law carries additional criminal penalties. Go to Federal Gun Laws to get more information.
1 Tex. Penal Code §§ 12.21; 46.04(e)
2 Tex. Penal Code § 46.04(c), (e)
3 Tex. Penal Code § 46.04(b)
4 Tex. Penal Code § 12.34
5 Tex. Penal Code § 46.04(a)
What will happen if the abuser tries to purchase a gun?
Before purchasing a gun from a licensed firearm dealer, all buyers must undergo a criminal background check that is processed through the National Instant Criminal Background Check System (NICS). The National Instant Criminal Background Check System is used by federal firearms licensees (FFLs), such as firearms dealers or pawnbrokers, to instantly determine whether someone is eligible to receive (own, possess, transport) firearms or explosives.1 If the abuser has a qualifying protection order against him/her, or has been convicted of a felony or domestic violence misdemeanor in any state, those records should be in the NICS, which should prevent the abuser from legally buying a gun. Not all states have automated record keeping systems, making it more difficult to process the criminal background check, and some criminals and abusers do slip through the system. Also, it is important to know that background checks are not required for private and online gun sales and so in those situations, the seller is not looking in the NICS.
If the abuser is able to purchase a gun and you believe that s/he should not be able to have one under the law, you can alert the police, and ask that his/her gun be taken away and perhaps the police will investigate. Generally, it is not a good idea to assume that because the abuser was able to buy a gun, it is legal for him/her to have one.
