The Legality of SBRs in Texas

What is a SBR?

A Short-Barreled Rifle (SBR) is a firearm with a barrel that is less than 16 inches in length, and "designed or redesigned, or made or altered in such a manner" that the overall length of the firearm is less than 26 inches. The general idea behind the legal definition is that if it’s small enough to hide under a long trench coat, it’s an SBR.
A pistol is not an SBR, even though it is a firearm with a barrel shorter than 16 inches. To be clear, a "pistol" for legal purposes is not the same as a "pistol" for common usage. A pistol, as defined by the law, is any firearm designed to be fired when held in one hand. An AR-15 pistol, for example, might have a barrel of 10 inches, and a magazine of 30 rounds . It is not a rifle under the law (thus no barrel length issue) because it is designed to be used with one hand.
Why does the distinction matter? Because a "pistol" has greater utility under the law than an SBR. Even if your goal is to obtain a federal tax stamp (thereby converting your SBR to a legal firearm), you will be required to fill out a federal form, submit fingerprints, and submit a photograph of yourself, among other things. However, if you buy an AR-15 pistol, no such paperwork is required when you purchase the pistol. The only time you’ll file paperwork is if you later decide to convert the pistol into a rifle, at which time it will be an SBR.

Texas Penal Provisions Governing SBR Ownership

When it comes to owning an SBR in Texas there are both state and federal laws that must be understood and complied with. Much of the confusion surrounding owning a SBR in Texas is the belief that Texas law governs SBR ownership, without the influence of federal regulations. While Texas law has no restrictions on SBR ownership, federal law does. As a federal law applies across state lines, a registered NFA gun owner and not a Texas gun owner must comply with the federal registration requirements.
Texas state law has no restrictions on any types of firearms including short-barreled rifles. However, as stated above federal law applies to all states and therefore if you wish to own an SBR in Texas you must make sure you comply with the federal Gun Control Act (GCA). Generally what this means is that you need to have the particular firearm identified as an SBR registered with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATF) before possession is valid.

Federal Law Regarding SBRs

The National Firearms Act (NFA) is a set of federal laws that regulates the possession of certain types of firearms including Short Barreled Rifles (SBR). The regulations define SBRs and how they must be registered with the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE). Namely, an SBR is defined as a rifle with a barrel less than 16 inches in length or an overall rifle length of less than 26 inches. A rifle is defined as "a weapon designed or redesigned made or remade, fitted or otherwise adapted to be fired from the shoulder and designed or redesigned and made to use the energy of an explosive to fire only a single projectile through a rifled bore for each single pull of the trigger." This should hopefully clarify that certain AR-15 (or AK-47) pistols with braces that do not fall within the definition of a short barreled rifle are in fact legal, as a rifle cannot be defined as a pistol unless it has a rifled bore. According to the regulations, an SBR must be registered with the BATFE. The registration must be done on a form 1 or a form 4. Form 4s are intended primarily for dealers transferring NFA weapons and require the buyer to have a local Chief Law Enforcement officer sign off on their application. Form 1s, however, are intended for manufacturers not dealers and allow the applicant to request the manufacture of the SBR. This is the most common method by which civilians go about building an SBR. On a form 1 a citizen must submit to the ATF their name, address, location of SBRs, and fingerprints along with a $200 tax stamp in order to pay for the tax on the transaction. Once approved, the applicant must then inscribe numerical information into or onto the weapon including the name of the maker, the city where it was made, caliber or gauge, and a serial number. It is a felony if a person makes, sells, or possesses an Unregistered SBR.

Ways to Legally Acquire an SBR in Texas

Starting with the purchase of the SBR, the process is pretty simple. For purposes of this blog, I will consider an "SBR" to be an NFA weapon in which the owner has filed a Form 1 to assemble it himself, and an "Any Other Weapon" to be any NFA weapon which is not a pistol or rifle or shotgun (e.g. a smoothbore shotgun with a barrel over 18″ of which the owner files a Form 1 to make himself). This section covers how to legally acquire either an SBR or an AOW. What is left to cover is how to legally own them after they are in your possession, and I will follow the current law of Texas (as set forth in the Texas Attorney General’s opinion) as well as the law as recommended by the Texas Legislature in their pending bill, SB 464.
Texas Law:
Purchase:
Governor’s 15 Questions and Request for Information: Send a letter to the Governor asking him to let you know if he has a problem with you possessing what is otherwise a perfectly legal weapon in Texas. Ask him for a reply. If he doesn’t reply, then you should assume he has no problem with it.
Federal paperwork: File a Form 1 "Application to Make and Register a Firearm." When filling out the Form 1 application, make sure to check the box that says "Making a Firearm." Many times people apply for SBR status by checking the box that describes the registration of a firearm. This is incorrect because the Form 1 and the Form 4 tax stamps are different prices, and are issued for different reasons.
Send the Form 1 along with:

$200 tax stamp.
Passport photo (2 x 2 inches).
Fingerprints on the ATF fingerprint card.
One copy of a CLEO sign off, or if you do not wish for your local law enforcement to know about your purchase, you may submit a photograph of a "Request for Taxpayer Identification Number and Certification" (W-9) form with the signature and birth date blacked out.
Mail the application to the ATF, Criminal Investigation Division, National Firearms Act Branch, 244 Needy Road, Martinsburg, West Virginia 25405. You may mail this to the ATF in any color envelope, and just mark it "ATTENTION: NFA Branch."

ATF Wait Time: The ATF’s goal is to approve about 200 Form 1 applications each month. When I filed my Form 1, they were up to 2044 pending Forms 1s. My Form 1 took 18 months to process. However, many people are reporting much shorter wait times.
Attorney General Opinion: Here is the link to the opinion from the AG’s office. Note that the AG’s office clearly states in the opinion that the opinion does not apply to the use of an NFA weapon in violation of the Game Wardens Act. This is why the AG stated that you still need to send the Governor’s 15 Questions & Request for Information letter to the Governor on a yearly basis, and follow his instructions.

SBR Possession Penalties

Penalties for Illegal Possession of SBRs in Texas
The greatest danger of the unlawful possession of a short-barreled rifle (SBR) likely resides not with the possibility of a fine or imprisonment if you possess one in Texas. Sure, technically, you could face years in prison, but considering the fact that most individuals caught with a firearm do not go to jail — mostly due to reasons beyond their control — and that most individuals caught with an SBR unlawfully are never discovered, the exposure of a certain amount of jail time isn’t a genuine concern. Further, statutory reform at the state level has made SBR instances less likely to end in an arrest.
The real concern is related to the risk of a felony conviction. The Government Code section that relates to the unlawful possession of a dangerous weapon is in Chapter 46: §46.01. Dangerous weapon includes a short-barreled firearm under Section 46.05:
§ 46.01. DEFINITIONS. In this chapter,

(1) "Weapon" means any device usable for intimidation or physical harm, including a firearm, illegal knife, club, mace, or chemical dispensing device.

§46.05. PROHIBITED WEAPONS. (a) A person commits an offense if the person intentionally, knowingly, or recklessly possesses, manufactures, transports, repairs, or sells a firearm, illegal knife, or club, as those terms are defined by this chapter.
[….]
(e) In this section:

(1) "Club" means an instrument that is designed, made, or adapted to inflict death or serious bodily injury by being fired or otherwise made to function as a weapon. The term includes a blackjack, nightstick, mace, and tomahawk.
(2) "Firearm silencer" means any device designed, made, or adapted to muffle the report of a firearm.
(3) "Illegal knife" means a knife with a blade over five and one-half inches . The term "illegal knife" includes a dagger, dirk, choke knife, or stiletto.
(4) "Short-barrel firearm" means a shotgun with a barrel length of less than 18 inches or a rifle with a barrel length of less than 16 inches.

The Government Code explicitly equates an SBR with a firearm. With respect to penalties, the unlawful possession of a firearm is a felony of the third degree:
§ 46.05. PROHIBITED WEAPONS. (b) An offense under this section is a:

(1) felony of the third degree if the weapon possessed, manufactured, transported, repaired, or sold was a firearm other than a machine gun;
(2) felony of the second degree if the weapon possessed, manufactured, transported, repaired, or sold was a shotgun with a barrel length of less than 18 inches or a rifle with a barrel length of less than 16 inches;
(3) felony of the first degree if the weapon possessed was a machine gun; and
(4) capital felony if the weapon possessed was a chemical dispensing device.

The unlawful possession of a chemical dispensing device is a capital felony. However, a plea bargain could also benefit you, such as receiving a third-degree felony for the unlawful possession of any other type of firearm other than an SBR if your attorney can interpose some legal argument or worse case scenario convince the prosecuting attorney to accept a plea bargain at that level. A third-degree felony level stands as two to ten years in prison and up to a $10,000 fine. A second-degree felony level stands as two to 20 years in prison and up to a $10,000 fine. A first-degree felony level stands as five to 99 years or life in prison and up to a $10,000 fine.
It is important to ensure that if you own or plan to purchase an SBR, that you do so legally.

Texas Case Law & Legal Precedents

There is little case precedent in Texas regarding surface acts of removal. Article 16, section 59 of the Texas Constitution grants a "surface use doctrine" and right to an SBR; however, there are few cases on this issue. There are two notable Texas cases. The Texas Supreme Court in Coastal Oil & Gas Corp. v. Garza Energy Trust held that an Oil & Gas lessee acquires the surface for all purposes where the lease gives the lessee an express right to use the surface for all purposes except for the farming or grazing of the land in another case, Coastal v. Garza. In Coastal v. Garza, the lessor, Garza Trust (the "Trust"), leased three tracts of land for mineral and oil & gas exploration. The oil & gas lease (the "Lease") included the following clause for the Lessor: Lessor does not reserve any right whatsoever to farm, cultivate or graze said land, but lessee shall have the free right to use so much of said land as may be necessary for all purposes necessary to the operation of said lease; and at times therein, or after the expiration of this lease, Lessor may at any time, during office hours, at its own cost and expense inspect the books of Lessee on the lease herein granted, etc. The title opinion was deemed acceptable by a title insurance company. The attorneys for the Trust also agreed with the opinion that Coastal had acquired surface rights under the lease terms. Garza (the successor-in-interest of the Trust) alleged that Coastal was disallowed from constructing wells, pipelines, and other oil & gas exploration facilities when the wells would occupy farming and grazing areas. Garza filed a summary judgment motion against Coastal and argued that Coastal had no right ever to drill more than one well per tract of land, take any action that preempted the farming or grazing, or build any permanent structures. The Texas Supreme Court held that Coastal’s interpretation of the Lease was reasonable; it had the right to use so much of the surface as necessary for all purposes. Coastal successfully argued that the "reasonable construction" given to the Lease, which created a commercial oil & gas lease, ensured the construction of a number of wells and pipelines as possible. In other words, the Garza Trust "agreed to take the risk that some aspects of coastal oil field operations may interfere with farming activities." Although the Garza case provided some clarity, the law concerning SBRs in Texas has been limited. New legislation and case precedents will continue to develop as more plaintiffs sue over the SBR issue.

Future Legal Developments

As with almost any legal issue, SBR issues in Texas are subject to rapid change. In particular, ongoing litigation—especially as it relates to criminal law—is notoriously difficult to predict. To that end, it is very possible that SBR legislation could evolve in ways that the current version of this article cannot presently anticipate. Most recently, a pro-SBR bill (HB 3179) was on the verge of being compulsorily transferred to the jurisdictions of the Public Safety and Homeland Security committee by the Calendars committee. Which would have effectively ended the proposed legislation in 2019.
With that being said, reputable sources indicate that future legislation in favor of SBR legalization could be forthcoming based on the protracted effort (mostly in vein, but still) actively being pursued by out-going Rep. Cain. Furthermore , in light of the 2018 midterms and the rapidly growing conservative power in the Texas legislature, many a pundit has done their homework and believed that an expansion for SBRs is well within the realm of possibility.
On the local level, Houston was once home base to the only city-level restriction on SBR possession in the state. That restriction was recently repealed in 2018. This no doubt impacts any crime that could be committed with an SBR throughout the city.
In addition to an expanded SBR provision, McConaughey and other supporters of the 2019 bill, are making an effort towards the legalization of suppressors (aka silencers) as well. Suppressors independently remain criminally regulated under the National Firearms Act and Texas law currently prohibits civilians from using them.