Updated on April 20, 2022
What Happens to my Firearm When My Case is Over in Texas?
It’s not uncommon for gun carriers to have their concealed or openly carried firearms seized during a detention or arrest. In this article, I will first explain when officers may search for weapons in the first place. Then, once an officer conducts a legal (or illegal) search and makes an arrest, I’ll explain when any seized weapons must be returned and how to regain possession of them.
There is a common misunderstanding among the some in the law enforcement community that they have the authority to disarm anyone with whom they come in contact “for officer safety.” This couldn’t be further from the truth and it’s important that you understand your rights as gun owner. The leading case on this issue is Terry v. Ohio, 392 U.S. 1 (1968). This is case where we get the term “Terry frisk.” However, Terry didn’t give carte blanche authority to cops to search people, much less confiscate legally carried firearms.
Terry requires that first and foremost, an officer must have a reasonable suspicion that a person is suspected of having committed a crime. “I got a call” is not reasonable suspicion in many instances. Articulating precisely what “reasonable suspicion” and “probable cause” mean is not possible. They deal with commonsense, nontechnical conceptions that deal with the facts and practical considerations that occur in the ordinary course of life that lead to reasonable and prudent people to act. “Reasonable suspicion” is boiled down to “a particularized and objective basis” for suspecting that someone has committed, is committing, or is about to commit a criminal act. A higher standard to search, probable cause, exists where the known facts and circumstances are sufficient to warrant a person of reasonable prudence in the belief that contraband or evidence of a crime will be found. The State of Ohio argued in this case that “the right of a police officer…to make an on-the-street stop, interrogate and pat down for weapons” was the main issue, but the Supreme duly noted that this argument is only partly accurate. Street encounters, the Court found, “range from wholly friendly exchanges of pleasantries or mutually useful information to hostile confrontations of armed men involving arrests, or injuries, or loss of life” and are therefore quite rich in diversity.
In order for an officer to even begin the process of performing a frisk, the officer must legally “seize” a person. “[A] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” A person is not seized until he either submits to the assertion of an officer’s authority or the officer has used physical force to prevent him from leaving. Hodari requires reasonable suspicion to perform a seizure. The Terry Court rightly recognized the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. Therefore, the Court ruled that “where [an officer] has reason to believe that he is dealing with an armed and dangerous individual” then he has the authority to conduct a reasonable search for weapons (not anything else). Terry continues that “[t]he officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” This must be more than just a “hunch” and the officer may only conduct a carefully limited search of the outer clothing to discover weapons which might be used to assault him. However, two elements must be met: that the officer reasonably suspects that the person is armed AND, separately, that the person is presently dangerous.
Ok, what if the officer believes he has reasonable suspicion of a crime, that a person is armed and dangerous, and decides to arrest the person for some real or alleged crime? Since there is really no argument that a person being arrested has no right to a keep a firearm while under arrest, we’ll skip to what happens after that firearm is seized. This is not a discussion about whether a particular arrest is lawful or not. When an officer places you in handcuffs and takes you to the slammer, with or without good reason, it stands to reason that such suspects should be disarmed even if the alleged crime has nothing to do with the firearm.
Texas Code of Criminal Procedure 18.19 explains what happens to seized weapons and is very specific about when the State can and cannot keep your weapon. Section (a) states that the law enforcement agency that made the seizure (the arrest) shall keep those firearms unless the weapon is a prohibited or stolen weapon. If it is a prohibited weapon, kiss it goodbye. You’ll never see it again if you’re convicted. If the charges are dismissed or a person is found not guilty, the person who had the alleged prohibited weapon seized from him must show cause in writing to the judge as to why the prohibited weapon should not be forfeited or destroyed. This only applies to prohibited weapons described in Penal Code Chapter 46.
For all other “legal” guns, there is an entirely different process. Section 18.19(c) states unequivocally that if charges are dropped or a person is acquitted, then the judge is required to notify the gun’s owner within 60 days that he is entitled to have his gun returned to him if he submits a written request. The magistrate then has up to 60 more days to release that weapon to the owner. There is no “may” return in the Code. If there isn’t a conviction or prosecution, the gun owner is ENTITLED to have his gun returned to him. If a person doesn’t request his gun within 60 days, the magistrate is required to destroy the gun, sell it at public auction with the proceeds going to the law enforcement agency holding the weapon, or have it forfeited to the State for use by law enforcement or a forensic laboratory.
Experience has shown that magistrates don’t typically follow the law. Why? Because they’re hoping that you, the gun owner, doesn’t know the law. Even though the magistrate is required by law to notify a gun owner who has had charges dismissed or acquitted after trial that he is entitled to have his gun returned to him, if the magistrate fails to follow the law and doesn’t sent a notice to the gun owner within 60 days, the law enforcement agency holding the gun can request an order to have the gun destroyed, sold, or forfeited! You heard that right: if a judge doesn’t do his lawful duty to inform you that you’re entitled to your gun, the police can legally steal it from you. It is vitally important that you request, in writing, that your gun be returned to you. It is better if your attorney does this in a legal memo, but it’s not required. A simple letter requesting the return of your firearm is all you need. Experience has shown that law enforcement agencies will play games with those who request to have their gun returned and don’t have an attorney. The reason is simple: there isn’t a penalty for ignoring the law. However, if the judge ignores the law and your gun is destroyed or forfeited, you may have a civil claim to recover the cost of that gun and any costs incurred trying to get it back.
Before I close, I want to surprise you even more with a little good news. Even if you are convicted of whatever crime you were arrested for (or given deferred adjudication), it is likely you are still entitled to have your gun returned to you. If you are convicted of an offense under Penal Code Chapter 46 – the chapter that covers most firearms laws – you are still ENTITLED to get your gun back upon written request to the court provided you meet the following criteria:
(1) You request the gun within 60 days of the conviction or placement on deferred adjudication;
(2) You have not been previously convicted of an offense under Chapter 46;
(3) The gun is not a prohibited weapon;
(4) The offense you were convicted of was not committed on the premises of a playground, school, video arcade facility, or youth center as defined in Section 481.134, Health and Safety Code;
(5) The court has not determined that your prior criminal history and circumstances surrounding the offense for which the weapon was seized would pose a threat to the community or one or more individuals; or
(6) You are not convicted of an offense involving the use of a weapon.
In Tafel, the defendant was a county commissioner who was charged with two felonies and two misdemeanors, one of which was for carrying a handgun to a county commission meeting. The court refused to return his .22 caliber North American Arms revolver and .45 caliber Kimber Ultra CDP II and instead forfeited them to the State of Texas. The State argued that since Tafel was convicted under Chapter 46, the court was allowed to forfeit the guns instead of return them. Tafel appealed to the Texas Supreme Court which rightly found that the handguns were NOT subject to forfeiture under Section 18.19 based solely on the conviction and reversed the judgment.
I have personally handled dozens of these cases where law enforcement agencies refused to return guns to people who were falsely arrested or had charges dropped. It’s not a difficult process…if you know the process. Self Defense Fund will help our members get their guns back even if the alleged charges don’t fall under our terms of service as covered activities. INSERT SDF CONTACT INFORMATION HERE. We hope you never need us, but we’re here if you do.
Illinois v. Gates, 462 U.S. 213, 231 (1983).
United States v. Cortez, 449 U.S. 411, 417-418 (1981).
Brinegar v. United States, 338 U.S. 160, 175 (1949).
United States v. Mendenhall, 446 U.S. 544, 554 (1980).
California v. Hodari D., 499 U.S. 621, 626 (1991).
See Adams v. Williams, 407 U.S. 143, 146 (1972); Ybarra v. Ill., 444 U.S. 85, 92-93 (1979); and Mich. v. Long, 463 U.S. 1032, 1048 (1983).
Tafel v. State, 536 S.W.3d 517 (Tex. 2017).