Untitled Texas Attorney General Opinion ( 2015 )

KEN PAXTON
ATTORNEY GENERAL OF TEXAS
December 21, 2015
The Honorable Wesley H. Mau Opinion No. KP-0049
Hays County Criminal District Attorney
712 South Stagecoach, Suite 2057 Re: Questions regarding a notice prohibiting
San Marcos, Texas 78666 entry with a handgun onto certain premises
under section 30.06 of the Penal Code and
section 411.209 of the Government Code
(RQ-0051-KP)
Dear Mr. Mau:
You present several questions about what constitutes a violation of section 411.209 of the
Government Code as implicated by Penal Code section 30.06, which provides for a notice to
prohibit entry with a handgun onto certain premises. 1 In connection with your request, you tell us
that the Hays County Government Center ("Center") is "a large, three-story structure housing a
variety of government offices." Request Letter at 1. You indicate that many of the offices in the
Center are inhabited by courts or offices utilized by the courts but that several offices in the Center
"do not serve the courts." Id at 2. And you inform us that Hays County has historically prohibited
weapons from being carried within the entire building. Id You tell us that several signs are posted
in the parking lot and at the entrance to the Center indicating that it is a "Weapons Free Zone." Id
Further, you tell us that "a metal-detector-equipped security checkpoint" is located a short distance.
inside the entrance to the Center. Id You also indicate that "there are no '30.06 signs' posted,
and the existing signage does not reference 'a law or a concealed handgun license."' Id at 2-3.
Finally, you state that the sheriffs deputies provide notice to licensees upon passing through the
security station "that they may not proceed into the building with a firearm" due to subsection
30.06(a)(2)(B) of the Penal Code. Id at 3.
With this context, you specifically ask:
(1) Does a sign that says, "Weapons Free Zone," but which does not
include the language of [subsection] 30.06(c)(3)(A), violate the
restrictions imposed on the government by [section] 411.209,
1
See Letter from Honorable Wesley H. Mau, Hays Cnty. Crim. Dist. Att'y, to Honorable Ken Paxton, Tex.
Att'y Gen. at I, 3 (Sept. 9, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request
Letter").
The Honorable Wesley H. Mau - Page 2 (KP-0049)
generally (i.e., whether or not the Hays County Goverrunent
Center constitutes court premises)?
(2) Does oral notice by a security deputy to a license holder that he
may not enter a building housing court[ s] and offices used by the
courts, but which building also houses offices not directly used
by the courts, such as the Hays County Goverrunent Center,
violate the restrictions imposed on the goverrunent by [section]
411.209?
(3) Is a license holder who wishes to enter the Goverrunent Center
in violation of Texas Penal Code [section] 30.06, if the license
holder is told by security personnel that possessing a firearm in
the building is prohibited and the license holder refuses to
relinquish any carried firearms and also refuses to exit the
building? ·
Request Letter at 3. Relevant to your questions, subsection 41 l.209(a) provides that
[a] state agency or a political subdivision of the state2 may not
provide notice by a communication described by Section 30.06,
Penal Code, or by any sign expressly referring to that law or to a
concealed handgun license, that a license holder carrying a handgun
under the authority of this subchapter is prohibited from entering or
remaining on a premises or other place owned or leased by the
goverrunental entity unless license holders are prohibited from
carrying a handgun on the premises or other place by Section 46.03
or 46.035, Penal Code.
TEX. Gov'T CODE § 411.209(a) (footnote added). As an initial matter, attorney general opinion
KP-0047 recognized that the relationship between sections 30.06, 46.03, and 46.035 authorizes a
goverrunental entity of the state to prohibit handguns from only those locations identified by
sections 46.03 and 46.035. See Tex. Att'y Gen. Op. No. KP-0047 (2015) at 3. Opinion KP-0047
also concluded that although the full scope of subsection 46.03(a)(3) is unclear, it is at least clear
that the Legislature intended to prohibit concealed handguns from goverrunent courtrooms and the
offices essential to the operation of the courts. See id. at 4-5. Thus, it is only the courtrooms, and
those offices determined to be essential to their operations, from which Hays County may prohibit
concealed handguns without risk of incurring the civil penalty in section 411.209 of the
Goverrunent Code.
However, your first two questions also implicate the question whether certain notices
"violate the restrictions imposed on the goverrunent by [section] 411.209." Request Letter at 3.
Subsection 411.209(a) does not create an offense and penalty regarding the manner of the notice;
2
Hereinafter collectively referred to as "governmental entity."
The Honorable Wesley H. Mau - Page 3 (KP-0049)
instead, it creates an offense and penalty for a governmental entity that seeks to prohibit a licensee
from carrying a handgun onto premises where handguns are lawfully permitted. See TEX. Gov'T
CODE§ 41 l.209(a). Thus, these questions present the issue of whether a written notice that does
not conform to the language required of a "written communication" in subsection 30.06(c)(3)(A),
or an oral notice, function as notice to a licensee that handguns are prohibited such that if posted
in an area where handguns are permitted would serve as grounds to support a complaint against
the governmental entity. In other words, we must determine whether subsection 41 l.209(a) is
implicated by an oral notice or a written notice that does not conform to the language provided in
section 30.06. ,
In our consideration of section 411.209, we are mindful that the primary canon of statutory
construction is to determine the intent of the Legislature. City ofLorena v. BMTP Holdings, L.P.,
409 S.W.3d 634, 641 (Tex. 2013). Like the courts, we seek that intent first and foremost from the
text. See id Courts only "resort to rules of construction or extrinsic aids" when a statute's words
are ambiguous. Entergy GulfStates, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009); see also
TEX~ Gov'T CODE § 311.023(3), (5) (allowing for the consideration of legislative history or the
"consequences of a particular construction" to aid in statutory construction).
The language of subsection 411.209(a) broadly refers to a notice that is "a communication
described by Section 30.06, Penal Code" or "any sign expressly referring to that law or to a
concealed handgun license." TEX. Gov'T CODE § 41 l.209(a). Section 30.06 describes notice
given orally or by "written communication." See TEX. PENAL CODE § 30.06(b), (c)(3)(A)-(B)
(specifying language for a "written communication"). Yet, other subsections of 411.209, which
govern the attorney general's enforcement of section 411.209, refer to only a sign. See TEX. Gov'T
CODE § 411.209(d) (requiring citizen complaint to describe the "specific location ofthe sign found
to be in violation") (emphasis added), (f)(l) (requiring the office of the attorney general to give a
governmental entity notice that "describes the violation and specific location of the sign")
(emphasis added), (f)(3) (authorizing the office of the attorney general to give the governmental
entity fifteen days "to remove the sign and cure the violation") (emphasis added). This limited
language about a sign differs from the initial and broad description of a "communication described
by section 30.06." Id § 41 l.209(a). Again, the Legislature has not acted with great clarity in this
matter and enacted section 411.209 with internal ambiguities regarding the nature of the notice,
the giving or posting of which by a governmental entity may subject the governmental entity to a
penalty. Thus, we consider relevant legislative history. See id § 311.023(3) (allowing for the
consideration of legislative history to aid in statutory construction).
The bill analysis for Senate Bill 273, enacting section 411.209, states that "[w]hen
uncooperative governments post signs to ban Texas citizens from carrying where it is legal, they
are breaking the law and infringing on the second amendment rights of Texas citizens. S.B. 273
provides an enforcement mechanism ... to stop these illegal postings." SENATE COMM. ON STATE
AFFAIRS, BILL ANALYSIS, Tex. S.B. 273, 84th Leg., R.S. (2015) at 1. A similar motivation was
behind the Legislature's 2003 addition of subsection 30.06(e) of the Penal Code, which operates
to preclude a governmental entity from prohibiting the carrying of handguns from premises other
than those listed in sections 46.03 and 46.035. See TEX. PENAL CODE§ 30.06(e). The bill analysis
for the enactment of subsection 30.06(e) acknowledged that some governmental entities have
misinterpreted the law to "allow[] them to ban weapons in any location other than the specific
The Honorable Wesley H. Mau - Page 4 (KP-0049)
places listed in the statute." House Research Org, Bill Analysis, Tex. S.B. 501, 78th Leg., RS.,
(2003) at 3-4. These statements are evidence that the Legislature intended to prevent
governmental entities from trying to prohibit a licensee from carrying a handgun in locations other
than ones identified in sections 46.03 or 46.035. These statements also indicate the Legislature
intended to create an enforcement mechanism for subsection 30.06(e) to give teeth to the restriction
. against governmental entities improperly seeking to exclude licensees from carrying handguns into
lawful areas. Subsection 411.209(a) can reasonably be construed to be this enforcement
mechanism intended to induce governmental entities to comply with the law.
To effectuate the Legislature's intent to prevent governmental entities from seeking to
wrongly exclude handguns from where they are lawful, a court would likely construe section
411.209 to be implicated by any type of notice that seeks to improperly prohibit handguns. Thus,
any oral notice given by a governmental entity regarding the prohibition of handguns, if given
where handguns are lawful, can serve as an improper exclusion in violation in section 411.209.
And the sign about which you inquire that does not use the statutory language but states that the
Center is a "Weapons Free Zone," if placed in an area where handguns are allowed, would
similarly invoke the enforcement mechanism of section 411.209.
This conclusion is bolstered by the fact that to conclude otherwise would thwart the intent
of the Legislature. See TEX. Gov'T CODE§ 311.023(5) (authorizing in statutory construction the
consideration of the "consequences of a particular construction"). If section 411.209 were
construed such that a violation for the exclusion of handguns occurred only if the improperly
placed notice was a written communication conforming to section 30.06, a governmental entity
could avoid penalty by either providing oral notice or providing a nonconforming written notice.
That is contrary to the Legislature's intent to stop governmental entities from infringing on Texas
citizens' rights to carry handguns wherever the law allows.
Your third question involves a license holder who, upon receiving proper notice, refuses to
relinquish any concealed handguns or who refuses to exit the building. See Request Letter at 3.
The plain language of section 30.06 provides that a license holder commits an offense if the license
holder carries a concealed handgun on the property of another without consent and received notice
that entry on the property with a concealed handgun was forbidden. See TEX. PENAL CODE
§ 30.06(a). By the terms of the statute, a license holder carrying a concealed handgun who fails,
after notice, to exit premises from which sections 46.03 or 46.035 prohibit concealed handguns
commits an offense generally punishable as a Class A misdemeanor. Id § 30.06(d). Conversely,
a licensee who refuses to relinquish any concealed handgun or refuses to exit the building after
being· given notice by a governmental entity does not commit an offense if the building is not one
from which sections 46.03 and 46.035 prohibit concealed handguns. See id § 30.06(e).
The Honorable Wesley H. Mau - Page 5 (KP-0049)
SUMMARY
Pursuant to Opinion KP-0047, it is only the courtrooms, and
those offices determined to be essential to their operations, from
which Hays County may prohibit concealed handguns without risk
of incurring a civil penalty under section 411.209 of the Government
Code.
A court would likely conclude that section 411.209 of the
Government Code can be implicated by a governmental entity that
seeks to improperly prohibit handguns from a place where handguns
may be lawfully carried through oral notice or by a written notice
that does not conform to section 30.06 of the Penal Code.
By the terms of section 30.06 of the Penal Code, a license
holder carrying a concealed handgun who refuses, after notice by
the governmental entity, to exit premises from which Penal Code
sections 46.03 or 46.035 prohibit handguns commits an offense
punishable as a misdemeanor. Conversely, a licensee who refuses
to relinquish any concealed handgun or refuses to exit the building
after being given notice by a governmental entity does not commit
an offense ifthe building is not one from which sections 46.03 and
46.035 prohibit concealed handguns.
Very truly yours,
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
BRANTLEY STARR
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee