Untitled Texas Attorney General Opinion ( 2016 )

KEN PAXTON
ATTORNEY GENERAL OF TEXAS
November 29, 2016
The Honorable Abel Herrero Opinion No. KP-0120
Chair, Committee on Criminal Jurisprudence
Texas House of Representatives Re: Authority of a junior or community
Post Office Box 2910 college to prohibit the carrying of concealed
Austin, Texas 78768-2910 handguns in classrooms or other areas where
minors attend class or are routinely present
(RQ-0109-KP)
Dear Representative Herrero:
You seek an opinion on several questions relating to the authority of a junior or community
college to prohibit the carrying of concealed handguns in classrooms or other areas where minors
attend class or are routinely present. 1 Specifically, you ask:
Question 1: Can a junior/community college prohibit handguns
in the classrooms on the college campus, if minor children may
attend classes in any or all of the classrooms on that campus?
Question 2: May handguns be prohibited during special
programs where minors will be present and in all areas where
minors are expected to appear?
Question 3: For programs that take place over several weeks
and are directed at minors (e.g. College for Kids), may handguns
be prohibited in all areas where minors may congregate?
Question 4: May handguns be prohibited on· campuses which
offer childcare centers?
Request Letter at 2.
'See Letter from Honorable Abel Herrero, Chair, House Comm. on Crim. Jurisprudence, to Honorable Ken
Paxton, Tex. Att'y Gen. at 2 (May 24, 2016), https://www,texasattomeygeneral.gov/opinion/requests-for-opinion-rqs
("Request Letter").
The Honorable Abel Herrero - Page 2 (KP-0120)
Passed by the Eighty-fourth Legislature, Senate Bill 11 ("S.B. 11 ")amended provisions in
chapter 411 of the Government Code and chapter 46 of the Penal Code. See Act of May 31, 2015,
84th Leg., R.S., ch. 438, §§ 1-6, 2015 Tex. Gen. Laws 1723, 1723-26. 2 As added by S.B. 11,
subsection 411.2031 (b) of the Government Code expressly authorizes a license holder to carry a
concealed handgun on the campus of an institution of higher education. See TEX. Gov'T CODE
§ 411.2031 (b). Government Code subsection 411.2031 (d-1) authorizes the president or other
chief executive officer of an institution of higher education to "establish reasonable rules,
regulations, or other provisions regarding the carrying of concealed handguns by license holders
on the campus of the institution or on the premises located on the campus of the institution." Id.
§ 411.2031 (d-1 ); see also id. (requiring the president or other chief executive officer to consult
with students, staff, and faculty about the "nature of the student population, specific safety
considerations, and the uniqueness of the campus environment"). Yet, subsection 411.2031 (d-1)
expressly prohibits the president or chief executive officer of an institution of higher education
from establishing any "provisions ,that generally prohibit or have the effect of generally prohibiting
license holders from carrying concealed handguns on the campus of the institution." Id.; see also
Tex. Att'y Gen. Op. No. KP-0051 (2015) at 2 (concluding that "[i]f an institution prohibited the
carrying of concealed handguns in a substantial number of classrooms, a court would likely
conclude that the effect would be to 'generally prohibit'license holders from carrying concealed
handguns on campus, contrary to the Legislature's express requirements"). Thus, as a junior or
community college is subject to this provision, it may not adopt any rule or regulation that
generally prohibits or has the effect of generally prohibiting a license holder from carrying a
concealed handgun on campus. See TEX. Gov'TCODE § 411.2031(a)(2) (defining "institution of
higher education" by reference to Education Code section 61.003), TEX. EDUC. CODE§ 61.003(8)
(defining "institution of higher education" to include a public junior college).
Your questions presuppose a different standard due to the presence of minors. Nothing in
S.B. 11 expressly excepts from the concealed carry authorization areas of a campus of an institution
of higher education in which minors may congregate. Relevant here, subsection 46.03( a) of the
Penal Code generally prohibits a person from carrying firearms and other specified weapons on
"the physical premises of a school or educational institution." TEX. PENAL CODE § 46.03(a); see
id. § 46.01(3), (5) (defining "firearm" and "handgun"). Here, a "school or educational institution"
is distinguished from an "institution of higher education" and does not include the premises of a
community or junior college campus. See TEX. Gov'T CODE § 411.2031, TEX. EDUC. CODE
§ 61.003(8) (defining "institution of higher education" with definition that does not include
primary or secondary schools); see also Tex. Att'y Gen. L0-92-42 at 2 n.2 (noting the term "school
or educational institution" means a "public primary or secondary school or a primary or secondary
private or parochial school"). This language of subsection 46.03(a) refers to the premises of
particular schools without regard to the nature of the activity. See TEX. PENAL CODE§ 46.03(a)(l).
Thus, this part of subsection 46.03(a) does not operate to prohibit concealed handguns from the
premises of a junior or community college campus.
2 S.B. 11 is generally effective as of August 1, 2016. See Act of May 31, 2015, 84th Leg., R.S., ch. 438,
§ 8(a), 2015 Tex. Gen. Laws 1723, 1726. For public junior colleges, it takes effect on August 1, 2017. See id § 8(d).
The Honorable Abel Herrero - Page 3 (KP-0120)
Subsection 46.03(a) also prohibits a person from carrying firearms and other specified
weapons on "any grounds or building on which an activity sponsored by a school or educational
institution is being conducted." Id § 46.03(a)(l). This language is limited, not by location, but
rather by activity. See id Such an activity is one sponsored by a school or educational institution,
which again does not include an activity sponsored by a junior or community college. Unless the
classes or special programs about which you ask are actually sponsored by a school instead of the
community or junior college, this phrase similarly does not prohibit concealed handguns on a
junior or community college campus. Cf Request Letter at 1 (stating that "[m]any junior and
community colleges" have early college high school programs). By its plain language, subsection
46.03(a)'s prohibition is based on premises and activities, not on the demographics of the people
in those locations or on the people participating in those activities. See Kia Motors Corp. v. Ruiz,
432 S.W.3d 865, 869 (Tex. 2014) ("The plain language of a statute is the surest guide to the
Legislature's intent.").
Moreover, by specifically excluding from the firearm and weapons prohibition in
subsection 46.03(a)(l) the "premises of an instltution of higher education or ... any grounds or
building on which an activity sponsored by the institution [of higher education] is being
conducted," the Legislature clearly reiterated its intent to allow concealed handguns on college
campuses. TEX. PENAL CODE § 46.03(a)(l)(B); see also TEX. Gov'T CODE § 411.203 l(b)
(authorizing a license holder to carry a concealed handgun on college campuses). Accordingly,
while section 46.03 prohibits firearms and other weapons from certain locations at which minor
children may be a predominant population, we cannot conclude the Legislature intended section
46.03 to impose a general prohibition against firearms and other weapons from a location,
particularly college campuses, due to the mere presence of minors. This is especially true given
that the Legislature has not prohibited in that section firearms in a number of locations where
minors may congregate, such as shopping malls, movie theaters, museums, and music venues. See _
TEX. PENAL CODE§ 46.03.
You raise Attorney General Opinion KP-0051, in which this office examined provisions of
S.B. 11, to determine the extent to which an institution of higher education may prohibit the
concealed carry of handguns on its campus. See Request Letter at 1. You tell us that your questions
arise, in part, from statements in Opinion KP-0051. See id.; see also Tex. Att'y Gen. Op. No.
KP-0051 (2015). As you point out, the opinion provided:
As an example, some institutions of higher education have grade
school classrooms on their campuses. Given that the Legislature
made it a criminal offense to carry a firearm on the physical
premises of such a school, rules regulating the carrying of concealed
handguns in such grade school classrooms would be consistent with
the Legislature's intent.
Tex. Att'y Gen. Op. No. KP-0051 (2015) at 1-2. This statement serves to illustrate the point that
while S.B. 11 does not authorize an institution of higher education to enact rules that have the
effect of generally prohibiting license holders from carrying concealed handguns on campus, it
does allow such institutions to enact reasonable rules regarding certain types of classrooms and
other areas in certain circumstances. See id.
The Honorable Abel Herrero - Page 4 (KP-0120)
Thus, generally speaking, a junior or community college may not categorically prohibit
concealed handguns from the junior or community college campus. But as authorized by
Government Code subsection 411.2031 (d-1 ), the president or other chief executive officer of the
junior or community college may establish rules, regulations, and other provisions that
accommodate the unique nature of a particular campus provided that such rules, regulations, or
provisions do not "generally prohibit or have the effect of generally prohibiting license holders
from carrying concealed handguns on the campus of the institution." TEX. Gov'T CODE
§ 411.2031 (d-1 ). Applying these principles to your specific questions, a junior or community
college may not adopt a blanket prohibition against concealed handguns in all of its classrooms
merely because minors may attend or be present in any or all classrooms. See Tex. Att'y Gen. Op.
No. KP-0051 (2015) at 2. Nor may a junior or community college adopt a blanket prohibition
against concealed handguns at all special programs simply because minors may be in attendance.
Yet, a junior or community college is authorized to establish reasonable rules that take into account
the "nature of the student population, specific safety considerations, and the uniqueness of the
campus environment." TEX. Gov'T CODE § 411.2031 (d-1 ). Such rules could prohibit concealed
handguns in specific classrooms and campus areas at times where there may be a congregation of
minors, as well as specific rooms where child-care services are provided, so long as those rules do
not operate to "generally prohibit or have the effect of generally prohibiting license holders from
carrying concealed handguns on the campus of the institution." Id.
The Honorable Abel Herrero - Page 5 (KP-0120)
SUMMARY
Pursuant to amendments made to chapter 411 of the
Government Code and chapter 46 of the Penal Code by Senate Bill
11 from the Eighty-fourth Legislature, a junior or community
college may not categorically prohibit concealed handguns from the
locations you identify due to the presence of minors. Under
Government Code subsection 411.2031 (d-1 ), the president or other
chief executive officer of the junior or community college may
establish reasonable rules, regulations, and other provisions
regarding the carrying of concealed handguns by license holders that
accommodate the unique nature of a particular campus provided that
such rules, regulations, or provisions do not generally prohibit or
have the effect of generally prohibiting license holders from
carrying concealed handguns on the campus of the institution.
Very truly yours,
~?~
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy First Assistant Attorney General
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee