I have a question for those of you who are REAL prosecutors. I had a question raised about whether or not a firearm had to be returned to a person under CCP art. 18.19. The man was arrested for unlawful possession of a weapon by a felon. However, before he could be tried, he was convicted in LA on other charges and is now serving a 15 year sentence. As a result, the DA dropped the weapon possession charges. Technically, our guy shouldn't have a firearm. But under article 18.19, the magistrate is supposed to notify him of his right to claim the weapon if the charges are dropped or he is acquitted. There is a provision for the magistrate to not return the weapon if the person represents a danger to the public, but only if the person is convicted. Has anyone come up with this type of situation before; if so, how have you handled it. My trooper doesn't want to return the firearm to the owner (or in this case, his designee considering his current abode won't let him keep it).
Art. 18.19(c) states the magistrate shall notify in writing the person who possessed the weapon once the magistrate determines there will be no prosecution or conviction. Looks like the magistrate has the discretion as to when the 61 days start. Also, the statute doesn't provide what happens if the notice is not given, except to state that if the weapon has not been ordered returned before the 121st day after the date of notification, an order of destruction or forfeiture may be requested (and presumably must be granted). Why not say the weapon has become abandoned or unclaimed and dispose of it under art. 18.17? Also, 18.19 does not provide for an order that the weapon be returned to the possessor's designee. Presumably the convict will not come forward to ask for the weapon himself, or alternatively, argue the court cannot be a party to an offense under 46.04 of the Penal Code (since the Louisiana conviction counts as a felony under Texas law). Hence, the court cannot enter the order specified by the statute and must instead order the destruction or forfeiture of the weapon, or at least postpone entry of the order for return until the time period under 46.04(a)(1) expires.
Thanks for the advice, Martin. I passed it along to the trooper. I beleive the judge decided to send the notice and then just wait the required number of days and order the weapon destroyed.
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