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Texas Supremes: Possession of Gun Does Not Constitute “Use” Under Forfeiture Statute

by Dale Chappell

The Supreme Court of Texas held that a Texas county commissioner’s misdemeanor conviction for possession of a firearm did not constitute “use” of a firearm under the forfeiture statute, and thus forfeiture was not authorized.

Mark Tafel, a former Hamilton County commissioner, was arrested for possession of two handguns in a meeting of the commissioners, court, in violation of Texas Penal Code § 46.035(c). He was convicted. After, the State moved for forfeiture of the guns pursuant to Texas Code of Criminal Procedure article 18.19(e), which authorizes forfeiture of a weapon upon conviction for “an offense involving the use of the weapon.”

The trial court granted the motions. Upon appeal, the court of appeals ruled that the forfeiture proceedings were civil in nature. It then affirmed the forfeitures, ruling that “use” of a weapon under article 18.19(e) includes merely possessing the weapon, and a separate and distinct offense is not required. The decision was appealed to the Texas Supreme Court.

The question before the Supreme Court was whether mere possession of a firearm was the “use” of the firearm that would trigger mandatory forfeiture. The Court held it was not.

Texas law requires mandatory forfeiture of a firearm if the conviction involved the “use” of that firearm. Article 18.19(e). The State argued that Tafel possessed and thus “used” his guns, and they were therefore required to be forfeited. Alternatively, if the firearm was not “used” during the offense and the offense is under Penal Code Chapter 46, article 18.19(d) applies. Under subsection (d), the defendant “is entitled to the seized weapon upon request to the court….” However, the court is required to order the weapon forfeited to the State if any of five enumerated exceptions apply. 

After reviewing several previous decisions interpreting the term “use,” the Court concluded that “use” of a firearm does not apply when the possession of the firearm itself is the “gravamen” or sole basis for the underlying offense. The Court explained that the term “use” means to “achieve an intended result” and is distinct from mere possession.

Undaunted, the State asked the Supreme Court to uphold the forfeiture under the “community threat” exception. Under article 18.19(d)(5), a weapon seized that was not “used” in the offense can still be forfeited, if possession of the weapon during the offense posed “a threat to the community or one or more individuals.”

The State relied on statements Tafel made during his first forfeiture hearing, which was reversed on appeal. However, Tafel argued that only the second hearing was before the Court on appeal, and that his statements from the first hearing could not be considered on this appeal. The Court agreed, finding that evidence from the first hearing was not preserved for this appeal by the trial judge, and a court of appeals can take judicial notice of earlier evidence only if “properly judicially noticed by the trial judge.”

The Texas Supreme Court held the guns Tafel possessed during the offense for which he was convicted were not “used” under subsection (e) of the forfeiture statute and that no exceptions contained in subsection (d) applied.  Accordingly, the Court reversed the judgment of the court of appeals, rendered judgment that Tafel’s guns are not subject to forfeiture, and remanded the case to the trial court for further proceedings consistent with the opinion. See: Tafel v. State, 2017 Tex. LEXIS 1146 (2017). 

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