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My Texas NFA gun trust clients frequently ask about the documents that they need to carry when they are at the shooting range or at the ranch hunting with an NFA firearm, such as a silencer or a short-barreled rifle. I advise my clients that they should always have a copy of the ATF tax stamp for each NFA firearm in their possession, a copy of their Texas NFA gun trust, including all amendments, if any, and their Texas driver’s license.
As an initial matter, Federal law requires a person possessing a registered NFA firearm to retain proof of registration, that is, the document (i.e., ATF tax stamp) showing the person’s or entity’s (e.g., NFA gun trust) registration, which must be made available to the ATF upon request. 26 U.S.C. § 5841(e). Moreover, in Texas, it is illegal to intentionally or knowingly possess, manufacture, transport, repair, or sell various “prohibited weapons.” Tex. Penal Code § 46.05(a). It is a third degree felony if the “prohibited weapon” is, among other things, a “firearm silencer,” a “short-barrel firearm,” or a “machine gun.” Id. § 46.05(e). However, “[i]t is a defense to prosecution under this section that the actor’s possession was pursuant to registration pursuant to the National Firearms Act, as amended.” Id. § 46.05(c) (emphasis added). The idea that possession of a registered NFA firearm is only a “defense to prosecution” is important, because it affects the burden of proof associated with a charge of possession of a prohibited weapon.
It is black letter law that “[a]ll persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.” Id. § 2.01. However, since lawful possession of a registered NFA firearm is a “defense to prosecution,” a prosecuting attorney is not required to negate the existence of the defense, and the judge is not required to even submit the issue of the existence of the defense to the jury, unless evidence is admitted supporting the defense. Id. § 2.03(a)–(c). Only if the issue of the existence of the defense is submitted to the jury is the judge required to instruct the jury that the defendant must be acquitted if there is a reasonable doubt that the defendant’s possession of the proof a registered NFA firearm was not allowed pursuant to the NFA. Id. § 2.03(d).
What does all of this legalese mean? Well, in the unlikely event that an ATF agent were to ever knock on your door and request to see your proof of registration for your NFA firearm, you would be required to do so under Federal law. More likely, if a law enforcement officer in Texas (e.g., police officer, sheriff, state trooper, or game warden) observed you in possession of an NFA firearm while hunting, travelling, or at the shooting range, and he or she requested to see your proof of registration for your NFA firearm, you would also be required to do so under Texas law.
To be able to provide proof of registration, I advise my clients that they should always have a copy of the ATF tax stamp for each NFA firearm in their possession, a copy of their Texas NFA gun trust, including any amendments, and their Texas driver’s license. The ATF tax stamp identifies the registrant (such as an individual or an NFA gun trust) and the make, model, and serial number of the registered NFA firearm. If the registrant is an individual, the registrant can produce his or her driver’s license or other acceptable form of identification to prove that he or she is the registrant. However, if the registrant is an NFA gun trust, the person in possession of the NFA firearm will need to prove that he or she is a trustee of the NFA gun trust since the NFA gun trust is the document that identifies the individuals with the right to use and possess trust property (i.e., the trustees). Note: A Certification of Trust also identifies all of the trustees of the NFA gun trust. Once the person proves that he or she is a trustee of the NFA gun trust listed on the ATF tax stamp, the person can produce his or her driver’s license or other acceptable form of identification to prove that he or she is the trustee identified in the NFA gun trust. No problem. Have a nice day, sir/ma’am.