Does Beto O'Rourke's 'criminal record' mean he can't buy a gun?

Democrat Beto O’Rourke doubled down on his pitch to institute a mandatory gun buyback program for assault-style weapons during the third debate of the presidential primary in Houston.

"Hell yes, we're going to take your AR-15, your AK-47," O’Rourke said at the debate. " We're not going to allow it to be used against our fellow Americans anymore."

His comments were met with boisterous applause from the audience at Texas Southern University and he was on the receiving end of a threatening remark from a state lawmaker in Texas.

They also sparked a questionable Facebook post, shared the day after the debate. This post was flagged as part of Facebook’s efforts to combat false news and misinformation on its News Feed. (Read more about our partnership with Facebook.) 

The post included a popular meme that is derived from stills of Drake’s 2015 music video for "Hotline Bling." The meme traditionally features two images of the singer and corresponding text generated by the poster. The idea is to make it appear as though Drake is shunning the first phrase, but welcoming the second.

In the post in question, the first phrase is: "Beto O’Rourke wants to confiscate the guns because he’s a liberal."

The second, which Drake seems to signal his approval of, reads: "Beto O’Rourke wants to confiscate guns because he can’t buy one himself due to his criminal record."

The text of the post says: "That burglary and DWI will get you every time."

We’ve looked at O’Rourke’s arrest record in the past, but is he ineligible to purchase a gun, as the post suggests?

Both DWI, burglary arrests were dismissed

O’Rourke was arrested twice in the 1990s — for, what he describes as, jumping a fence on the campus at the University of Texas at El Paso and for driving while intoxicated.

He was first arrested in May 1995 on the UTEP campus for attempted forcible entry, according to a copy of the police report provided by O’Rourke’s campaign in 2018. The charge fell under the burglary portion of the state penal code, section 30.02.

O’Rourke told the El Paso Times in 2005 that UTEP "decided not to press charges" and a LexisNexis background check of O’Rourke shows that the Class B misdemeanor was dismissed.

In September 1998, O’Rourke was arrested and charged with driving while intoxicated in Anthony, a small town outside El Paso.

A witness told police officers that they observed O’Rourke driving at a high speed before losing control of his car and striking a truck, according to a police report of the incident. O’Rourke then attempted to drive away, but the witness stopped him, according to the report.

Law enforcement arrived and arrested O’Rourke, recording that he scored a 0.136 and 0.134 on a breathalyzer test, above a blood-alcohol level of 0.10, the state legal limit at the time.

O’Rourke was charged with a misdemeanor DWI, but the charge was dismissed after he completed a misdemeanor diversion program in 1999.

In summary: O’Rourke was arrested for two separate misdemeanors in the 1990s, including one for a DWI. Both cases were dismissed.

O’Rourke could purchase a gun

There is no requirement for a person to have a permit or license to purchase rifles and shotguns or handguns in Texas, O’Rourke’s home state. As long as a purchaser is older than 18 and, in certain cases, passes a background check, the person can legally purchase a firearm without a permit. (A permit is required to carry a handgun in public.)

Licensed-gun dealers are required by federal law to conduct a background check for an individual seeking to purchase a gun if that person does not have a license to carry. But private sellers do not have the same requirement.

Federal and state laws in Texas prevent a person from purchasing and possessing a gun if they have previously been convicted of a felony or convicted of certain misdemeanors related to domestic assault.

Certain people with a history of mental illness are also barred from purchasing a gun.

O’Rourke would be able to purchase a gun, since he was not convicted of burglary or of driving while intoxicated — both charges were dismissed.

Even if he had been convicted, neither charge would prevent him from legally purchasing and possessing a firearm today, since they were both misdemeanor offenses unrelated to domestic violence and were resolved more than five years ago.

O’Rourke could also obtain a gun license

Misdemeanor DWI offenses play a more significant role when it comes to obtaining a license to carry in Texas.

State law allows for people, not including those in the prohibited categories outlined above, to possess a handgun in their home or in their car without a license to carry. People can also carry rifles and shotguns in public without a permit.

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In order to purchase a gun without a background check and to carry a handgun in public, a person must obtain a license to carry from the state.

Requirements for obtaining such a license are more stringent than those for simply purchasing a gun.

Most important in O’Rourke’s case is a requirement that a person is not currently facing charges for "a Class A or Class B misdemeanor or equivalent offense" and a requirement that an individual "has not, in the five years preceding the date of application, been convicted of a Class A or Class B misdemeanor or equivalent offense."

The law also states that a person is not eligible to receive a license to carry if the person has been "convicted two times within the 10-year period preceding the date on which the person applies for a license of an offense of the grade of Class B misdemeanor or greater that involves the use of alcohol or a controlled substance as a statutory element of the offense."

O’Rourke was arrested on a burglary charge in 1995, a misdemeanor offense that was dismissed. He was arrested for DWI in 1998, a misdemeanor offense that also was dismissed after he completed a diversion program.

Neither arrest, taken separately or together, would prevent him from obtaining a license to carry a gun under Texas law.

"He has no convictions on his record, so there is zero collateral consequence, vis-à-vis his ability to get a gun license," said Steve Toland, an Austin-based defense attorney who handles DWI cases.

The Texas Department of Public Safety, which administers the licensing program, lists answers to frequently asked questions on its website, including one about how dismissed charges affect eligibility.

"If charges were dismissed without prosecution, then they are not disqualifying," the post reads.

If O’Rourke’s misdemeanor DWI had not been dismissed and he had been convicted, he would still be eligible to apply for a gun license today, since more than five years have passed.

Had O’Rourke applied for a license after his arrests, when the charges were still pending, he would not have been eligible for a gun license. But since he was not convicted of either charge, he would have been eligible for a license once his cases had been dismissed.

Our Ruling

A Facebook post circulating after the Democratic debate said that O’Rourke can’t buy a gun "due to his criminal record."

O’Rourke was arrested for two misdemeanors in the 1990s — for burglary and DWI. Both cases were dismissed and he was not convicted of either charge.

O'Rourke could have passed a gun-purchase background check and obtained a license to carry once the charges were dismissed. Even if he had been convicted of these charges, he still could purchase a gun today.

We rate this claim False.

FALSE: The statement is not accurate