Untitled Texas Attorney General Opinion ( 1995 )

&ate of Qexae
August 30,1995
DAN MORALES
ATT”RNEYCENERAL
Honorable Ron Wilson Opinion No. DM-364
Chair
Licensing and Administrative Procedures Re: Whether a rapid transit authority
House of Representatives established under V.T.C.S. article 1118x
P.O. Box 2910 (to be recodified as Transportation Code
Austin, Texas 78768-2910 chapter 451) may prohibit a concealed
handgun licensee from carrying a
concealed handgun on a public con-
veyance operated by the rapid transit
authority; whether a city or county may
prohibit a concealed handgun licensee
from carrying a concealed handgun in a
city or county park (RQ-828)
Dear Representative Wilson:
You ask three questions about the recently enacted concealed handgun law, Act of
May 16, 1995, 74th Leg., R.S., ch. 229, 1995 Tex. Sess. Law Serv. 1998, section 1 of
which is to be codified as V.T.C.S. article 4413(29ee). The first two questions involve the
effect of that law on the authority of a rapid transit authority, created pursuant to
V.T.C.S. article 1118x (to be recodified as chapter 451 of the Transportation Code, see
Act of May 1, 1995, 74th Leg., R.S., ch. 165, $ 1, 1995 Tex. Sess. Law Serv. 1025,
13.57-96), to prohibit the carrying of a concealed handgun on a public conveyance:
1. Section 13 of Article 1118x of the Texas Revised Civil Statutes,
Annotated,’ as amended by S.B. 971, 74th Legislature which
‘Section 13 providesin pertinentpart:
(a) The boardmay adoptand enforcereasonablerules snd regulations:
(1) to secure and maintainsafety aad efficiency in the operationand
maintenanceof ill system
@) A condensedsubstantivestatementof the rules and regulationsshall be
publishedafter adoptiononce a week for hvo consecutiveweeks in a newspaper
with general circulation in the area in which the authorityis located, which
notice shall advise that the full text of the rules and regulationsis on file in the
principal of&e of the authority where it may be read by any interestedperson.
Such rules and regulations shall bxome effective 10 days after the second
publication.
Honorable Ron Wilson - Page 2 @M-364)
codified it under Section 451.107, Transportation Code,* relates to
the authority granted a rapid transit authority to “adopt and enforce
reasonable rules and regulations to secure and maintain safety
and efficiency in the operation and maintenance of the system. .*’
Pursuant to this statutory provision, may an “Authority” prohibit a
person who is licensed to cany a concealed handgun under Article
4413(29ee) of the Texas Revised Civil Statutes Annotated, from
carrying a concealed handgun while a passenger on a vehicle used by
the “Authority” to provide public transportation?
2. Under Section 32 of Article 4413(29ee) of the Texas Revised
Civil Statutes Annotated: may an Authority prohibit a person who is
licensed to carry a concealed handgun from carrying a concealed
(footnotecontinued)
V.T.C.S. art. 1118x. 5 13(a)(l), (b). The Seventy-fourthLegislaturehas wed article 1118x;the repeal
bewnm elfwtive on September1, 1995. Act of May 1, 1995, 74th Leg., RS., ch. 165, $5 24, May 27,
1995 Tex. Scss. Law Serv. 1025, 1870, 1871.
3ection 45 1.107 providesin pertinentpart:
RULES. (a) The boardby resolutionmay adoptroles for:
(1) the safe and cfticicntoperationand maintenanceof the transit
authoritysystem.
(b) A notice of each role adopt&by the boardshall be poblishcd in a
newspaperwith general cimlation in the area in which the authorityis
locatedonce each week for two coosecotivcweeks atIeradoptionof the rule.
The notice must contain a condensedstatementof the sobstaaceof the rule
and most advise that a copy of the completetwctof the role is filed in the
principaloffke of the authority,wherethe text maybe readby any person.
(c) A rule becomes cffcctive 10 days atter the date of the second
publicationof the noticeunderthis section.
Act of May 1, 1995, 74th Leg.. R.S., ch. 165, sec. 1, 8 451.107(a)(l), 1995 Tex. Seas. Law Serv. 1025,
1368 (to be codified as Trans. Code 8 451.107(a)(l)). The TransportationCode becomes effective on
September1, 1995. Id. 5 27, at 1871.
%ection32 providesas follows:
RIGHTS OF EMPLOYERS.This article dots not prevent or othcrwia
limit the right of a public or private employer to prohibit peraoos who are
licensed underthis articlefromcarryinga concealedhandgunon the premisesof
the business.
Ael of Ivlay16, 1995,74lb Leg., RX, ch. 229,s 1, 1995 Tex. Scss. Law Serv. 1998.2012 (to be ccditied
as V.T.C.S. art.4413(29ee), 8 32).
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Honorable Ron Wilson - Page 3 @M-364)
handgun while a passenger on a vehicle used by the “Authority” to
provide public transportation? [Footnotes added.]
The third question involves the effect of the handgun law on the authority of a city or
county to prohibit concealed handguns in a city or county park:
3. Under Article 4413(29ee) of the Texas Revised Civil Statutes
Annotated, effective September 1, 1995, are governing bodies of
cities and counties granted authority to post notice and preclude the
holder of a concealed carry permit from carrying a concealed weapon
while on the premises of a city or county wntrolled park?
We answered the second question in Attorney General Opinion DM-363, which
we have issued contemporaneously with this opinion. There we concluded that section 32
applies only to a public or private employer’s employees who are licensed under article
44 13(29ee) and not to other persons who are licensed under article 4413(29ee). See
Attorney General Opiion DM-363 (1995) at 5. Therefore, section 32 does not dispose of
the issue of whether a rapid transit authority may prohibit all concealed handguns from its
vehicles.
In regard to your first question, we note that the concealed handgun law itself does
not grant a right to carry a concealed handgun wherever the licensee chooses. The statute
does, however, amend various Penal Code provisions regarding the canying of prohibited
weapons, particularly Penal Code section 46.02, which otherwise would make the carrying
of such a weapon unlawhd. Attorney General Opinion DM-363 (1995) at l-2. Therefore,
the statute does not affect the power, if any, of a rapid transit authority to prohibit the
carrying of handguns on its vehicles.
Section 13 of article 1118x is a possible source of such a power. A rapid transit
authority may invoke the police power delegated to it in section 13’to abridge the right of
a citizen to use his private property ifthe use will endanger public safety in a rapid transit
system. See Spmtn v. Civ ofDcrllur, 235 S.W. 513, 515 (Tex. 1921). To be a valid
exercise of police power, the means adopted by a rule, such as the exclusion or ejection of
persons carrying handguns, must be reasonably necessary and appropriate for the
accomplishment of a legitimate object falling within the rapid transit authority’s police
power, such as the maintenance of the safety of the rapid transit system. See Falfirrias
Creamery Co. v. Ciry of Laredo, 276 S.W.2d 351, 353 (Tex. Civ. App.-San Antonio
1955, writ ref d n.r.e.).
‘In Attomey GeneralOpinionsH-l 19 and H-1068, this office declaredunmnsti~tional portions
of earlier versions of section 13 that ‘@port[ed] to delegate to transit authoritiesthe power to make
violation of its rules and regulations a crime,” AttorneyGeneral Opinion H-119 (1973) at 8; accord
Anomcy GaneralOpinionH-1068 (1977) at 2-3. The Seventiah Legislatureamendedsection 13 to delete
all rdermas to the establishmentof penaltiesfor the violationof rules adoptedunder seaion 13. See Act
of June 1, 1987.7OthLeg., KS., ch. 350,§ 2, 1987 Tex. Gen. Laws 1772, 1772-73.
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Honorable Ron Wilson - Page 4 @M-364)
This office cannot determine whether a rapid transit authority rule prohibiting
handguns on public conveyances would be reasonably necessary and appropriate for the
accompMune.nt of a legitimate object within the police power of the rapid transit
authority. The reasonableness and necessity of a measure taken under the police power is,
in the first instance, a matter within the discretion of the governing body taking the
measure. Burringron v. Cokinos, 338 S.W.Zd 133, 141 (Tex. 1960). “Any attempted
exercise of the [police] power is always subject to review by the wurts on the
question of reasonableness,” id., but the courts will not disturb the legislative action unless
it is clearly shown to be unreasonable and arbitrary, Sture v. S’am ‘aIha., 447 S.W.2d
407, 414 (Tex. 1969); see St&e v. Richards, 301 S.W.2d 597, 602-03 (Tex. 1957); Ci@
of Coleman v. Rhone, 222 S.W.2d 646, 649-50 (Tex. Civ. App.--Eastland 1949, writ
ref d).
In answer to your third and last question, we believe that a municipality does not
have the power to prohibit licensees from carrying handguns in city parks but that a
county does have such power over county parks. Home-rule cities have %I1 power of
self-government, that is, Ml authority to do anything the legislature could theretofore
have authorized them to do.” Forwood v. Ciry of Tqlor, 214 S.W.2d 282, 286 (Tex.
1948); see Tex. Const. art. XI, 5 5; Local Gov’t Code 5 51.072. They “look to the
Legislature not for grants of power, but only for limitations on their power.” Dulhs
Merchanis & Concessionaires Ass’n v. Ciry of LMlas, 852 S.W.2d 489, 490-91 (Tex.
1993). “The powers of home rule cities are subject to and may be limited only by their
charters or by the Constitution or by general law.” Lower Cola. River Au& v. City of San
Morcos, 523 S.W.2d 641, 644 (Tex. 1975). “If the Legislature chooses to preempt a
subject matter usually encompassed by the broad powers of a home-rule city, it must do so
with unmistakable clarity.” Daths Merchants & Concessionaires Ass’n, 852 S.W.Zd at
491. As for non-home-rule municipalities, “[t]he [police] power rests in the State, but by
legislative grant may also be exercised by municipalities.” Coleman v. Rhone, 222 S.W.2d
646, 648 (Tex. Civ. App.--Eastland 1949, writ refd). Similarly, a commissioners court
has no general police power, but it “does have those powers expressly conferred upon
it by the Constitution and by the Legislature, together with such implied powers as are
necessary to exercise the powers expressly conferred.” Travis Cow@ v. Colunga, 753
S.W.2d 716, 720 (Tex. App.--Austin 1988, writ denied) (citing Canales v. Luughlin, 214
S.W.2d 451 (Tex. 1948); Clprk v. Finley, 54 S.W. 343 (Tex. 1899)).
Section 33 1.007 of the Local Government Code specifically recognizes the police
power over its parks that a home-rule municipality already possesses and grants non-
home-rule municipalities and counties police power over their parks, That section
provides in pertinent part: “A park shag be open for the use of the public under rules
prescribed by the goveming body of the park. .” In addition, section 51.001 of the
Local Government Code generally grants police power to a municipality. Section 5 1.001
provides:
The governing body of a municipality may adopt, publish,
amend, or repeal an ordinance, rule, or police regulation that:
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Honorable Ron Wilson - Page 5 @M-364)
(1) is for the good government, peace, or order of the
municipality or for the trade and commerce of the municipality; and
(2) is necessary or proper for carrying out a power granted by
law to the municipality or to an ol?ice or department of the
municipality.
We believe the police power granted in section 51.001 would include a municipality’s
power to regulate its parks. Cf. Massengale v. Ci@ of Copperas Cove, 520 S.W.2d 824,
828 (Tex. Civ. App.-Waco 1975, writ refd n.r.e.) (non-home-rule city’s ordinance
allowing private club to sell alcoholic beverages in city only if club was located in use
district was valid exercise of city’s police power under predecessor of section 5 1.OOl).
The Seventy-fourth Legislature, in the concealed handgun law, tempered a
municipality’s police power over its parks by amending section 215.001 of the Local
Government Code. Before the amendment section 215.001 read in pertinent part:
(a) A municipahty may not adopt regulations relating to the
transfer, private ownership, keeping, transportation, licensing, or
registration of firearms, ammunition, or firearm supplies.
(b) Subsection (a) does not atfect the authority a municipality
has under another law to:
(6) regulate the carrying of a firearm at a:
(A) public park
Local Gov’t Code $215.001(a), (b)(6). The amendment adds an exception to subsection
(b)(6) of section 215.001 so that it now reads in pertinent part:
(b) Subsection (a) does not a&t the authority a municipality
has under another law to:
(6) regulate the carrying of a firearm by a person other
than a person licensed to carry a concealed handgun under
Article 4413(29ee), Revised Statutes, at a:
(A) public park
Act of May 16, 1995, 74th Leg., R.S., ch. 229, 5 7, 1995 Tex. Sess. Law Serv. 1998,
2014-15 (added language italicized). The legislature thus has specifically taken away a
municipality’s authority to prohibit or restrict the licensed carrying of a concealed handgun
in a public park.
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Neither the concealed handgun law nor any other statute has restricted a county’s
police power over its parks under section 331.007 of the Local Government Code. We
believe that section 33 1.007 permits the “governing body of a [county] park” to adopt a
rule providing for the exclusion or ejection of persons canying handguns from a county
park if such a rule is reasonably necessary and appropriate for the accomplishment of a
legitimate object falling within the county’s police power under section 331.007. See
Falfirrias Creamery Co. v. Ciq of Laredo, 276 S.W.2d at 353.
The principles stated above regarding a rapid transit authority’s initial
determination of the propriety of an exercise of police power and judicial review of that
determination also apply to counties: the reasonableness and necessity of a measure taken
under the wunty’s police power is, in the first instance, a matter within the county’s
discretion; and the wurts would not disturb a county’s regulation of handguns in county
parks unless the regulation were clearly shown to be unreasonable and arbitrary.
Therefore, this office cannot determine whether a county ordinance prohibiting handguns
in a county park would be reasonably necessary and appropriate for the accomplishment of
a legitimate object within the police power of the county under section 33 1.007.
SUMMARY
Section 32 of V.T.C.S. article 4413(29ee) does not affect the
power, if any, of a rapid transit authority to prohibit the carrying of
handguns on its vehicles by persons other than employees of the
rapid transit authority.
A rapid transit authority may invoke the police power delegated
to it in section 13 of V.T.C.S. article 1118x to abridge the right of a
citizen to use his private property if the use will endanger public
safety in the rapid transit system. The reasonableness and necessity
of a measure taken under the rapid transit authority’s police power is,
in the first instance, a matter within the authority’s discretion. The
courts would not disturb a rapid transit authority’s regulation of
handguns on public conveyances unless the regulation were clearly
shown to be unreasonable and arbitrary.
The legislature, in the concealed handgun law, has specifically
taken away from a municipality the authority to prohibit the licensed
carrying of concealed handguns in a city or county park. See Act of
May 16, 1995, 74th Leg., R.S., ch. 229, § 7, 1995 Tex. Sess. Law
Serv. 1998,2014-15.
A county has the power to adopt a rule providing for the
exclusion or ejection of persons carrying handguns from county
parks if such a rule is reasonably necessary and appropriate for the
accomplishment of a legitimate object falling within the county’s
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police power under section 33 1.007 of the Local Government Code.
The reasonableness and necessity of a measure taken under the
county’s police power is, in the first instance, a matter within the
county’s discretion. T’he wurts would not disturb a county’s
regulation of handguns in county parks unless the regulation were
clearly shown to be unreasonable and arbitrary.
DAN MORALES
Attorney General of Texas
JORGE VEGA
Fist Assistant Attorney General
SARAH J. SHIRLEY
Chair, Opinion Committee
Prepared by James B. Pinson
Assistant Attorney General
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