                               April 9. 1975

The Honorable Wilson E. Speir                  Opinion No. H-   577
Director
Texas Department of Public Safety              Re: Whether possession of
5805 N. Lamar Boulevard                        certain firearms is unlawful
Austin, Texas 78773                            under section 46.06 of the
                                               Texas Penal Code.

Dear Colonel Speir:

        You have asked whether a person may legally possess a machine
gun, a short-barrel firearm or a firearm silencer in Texas if the
federal government would register it, or alternatively, whether the
relevant Texas statute, section 46.06 of the Penal Code, would place
the possessor in “violation of the law, ” so that the federal government
would have to deny registration.

          Section 46.06 states that. “a person commits an offense if he
intentionally or knowingly possesses,     manufactures, transports,
 repairs, or sells: . . . (2) a machine gun; (3) a short-barrel firearm;
 (4) a firearm silencer . . . .‘I The statute qualifies this blanket
 proscription, however, by adding that :
~.
                   (c) It is a defense to prosecution under this
               section that the actor’s possession .was pursuant
               to registration.purs.uant.tQ.th.e-NationalPirearms
               Act, as amended.

        The term “pursuant to” means in accordance with, or in
conformity with that which is referenced.   35A Words and Phrases,
336 (1963) and p. 28 (Supp. 1974). We believe the defense under
46.06(c) requires possession to be in conformity with and in accordance
with all requirements of the National Firearms Act, including registra-
tion.




                                   p. 2574
The Honorable Wilson E. Speir       Rage 2    (HI 577)




        The National Firearms Act, 26 U.S. C. 0 0 5801 et seq., regulates
gangster-type weapons such as machineguns. sawed-off shotguns, short-
barreled rifles and silencers.   See Gommittee and Conference Reports
on Gun Control Act of 1968, U. S%?%3eGrg. aril &r&l,    News, 4410, 4434
(1968). Under the Act, only possessors who lawfirlly’make, ‘manufacture,
or import firearms can and must register them; the transferee does not
and cannot register.   It is unlawful for any person to receive or possess
a firearm which is not registered to him in the National Firearms
Registration and Transfer Record.      United States v. Freed, 401 U.S.
601, 603-604 (1971).

         Registration under the Act is governed by 26 U.S. C. section
5812(a) which details the procedures which must be followed for an
authorized transfer of a firearm covered by the Act.   The statute pro-
vides that an application by a transferor for transfer must “be denied
if the transfer, receipt, or possession of the firearm would place
the transferee in violation of law. ”

        It is unlawful under federal law for a licensed manufacturer,
importer, dealer or collector to sell or deliver to any person a machine-
gun, short-barreled shotgun or short-barreled        rifle except as specifically
authorized by the Secretary of the Treasury consistent with public safety
and necessity.    18 U.S. C. § 922(b) (4); 26 C. F. R. 5 178.98.   Transactions
between licensed manufacturers, importers,         dealers or collectors are
excepted from this prohibition. 18 U. S. C. Q922(b).        The Secretary of the
Treasury is authorized to permit this type of weapon to be transferred
for _certain purposes such as scientific or research purposes. See 18
U.S. C. g 925(d)(l); 26 U.S. C. 8 5844.     The Secretary may permit the
importation of unserviceable firearms,       other than machineguns. as
curios or museum pieces.      18 U. S. C. 5 925(d) (2).

        A proposed transferee who aids, abets, induces or procures .a
violation of an offense such as 18 U.S. C. 8 922(b)(2) is punishable as a
principal (18 U. S. C. 5 2) or as a conspirator in connection with that offense.
(18 U.S. C. 5 371). Thus, a transfer to a person other than a licensed
manufacturer, importer, dealer or collector can be registered and made
without placing the transferee in violation of federal law only if there is a
specific authorization by the Secretary of the Treasury that the transfer
is consistent with public safety and necessity.




                                   p. 2575
The Honorable Wilson E. Speir     page 3     (H-577)




        Regulations issued concerning registration and transfer of machine-
guns. etc., require proposed transfers to individuals to be accompanied by
“a certificate of the local chief of police, sheriff of the county, U.S.
attorney, U.S. marshal1 or such other person whose certificate may in a
particular case be acceptable to the Director certifying . . . that he has
no information indicating that the receipt or possession of the firearm
would place the trensferee in violation of State or local law or that the ‘.
transferee will use the firearm for other than lawful purposes. ” 26
C.F.R.    $179.85.

        We believe that such a certificate could properly be made by a law
enforcement official concerning Texas law if the proposed transferee has
obtained a specific determination and authorization by the Secretary of
Treasury that there exists a public necessity for the transfer and that the
transfer would be consistent with public safety..   See l’B.:U. S. C. -
0922 (bJ’(4)..~      :~

        Both the Texas and federal statutes effectively prohibit the possession
of machineguns, short-barreled    shotguns, short-barreled rifles and
silencers by all but military forces, law enforcement agencies, museums,
and licensed and registered manufacturers,   importers and dealers whose
ultimate customers are authorized to possess such weapons. We
believe the defense provided in Texas Penal Code section 46.06(c) was
intended to defer to the federal government’s determination of necessity
in those instances where possession of such weapons is related to and
in furtherance of valid military, law enforcement, scientific or ‘museum...
usage.


        Our answer to your question is that Texas Penal Code section
46.06 prohibits possession of a machinegun. short-barreled firearm
or firearm silencer and that such possession would be in violation of
state law except where the Secretary of the Treasury makes an affirma-
tive determination that possessioni& a pbIfc: necessity, thus permitting
the weapon to be registered pursuant to the National Firearms Act, 26
U.S. C. 5 5812.

                              SUMMARY

                  In the absence of a specified defense, the Texas
               Penal Code prohibits possession of a machinegun,




                                   p. 2576
Tbe Honorable Wilson E. Speir    page 4   (H-577)




              short-barreled firearm or firearm silencer.
              The defense provided in Penal Code section
              46.06(c) for possession of such weapons when
              registered pursuant to the National Firearms
              Act permits legal possession upon an affirma-
              tive determination by federal authorities that
              possession is a public necessity and consistent
              with public safety.

                                             Very truly yours,




APPROVED:




DAVID M. KENDALL,      First Assistant




C. ROBERT HEATH,      Chairman
Opinion Gommittee

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