Untitled Texas Attorney General Opinion ( 2001 )

OW,CE OF THB ATTORNEY GENEP.AL STATE OF TEXAS
JOHN CORNYN
January 5,200l
The Honorable Pete P. Gallego Opinion No. JCL0325
Chair, Committee on General Investigating
Texas House of Representatives Re: Whether a governmental body may prohibit
P.O. Box 2910 the holder of a concealed handgun license from
Austin, Texas 78768-2910 carrying a handgun onto property owned or
controlled by the respective unit of government
(RQ-0248-JC)
Dear Representative Gallego:
You have requested our opinion regarding the authority of various units of government to
prohibit the holder of a concealed handgun license horn carrying a handgun onto property owned
or controlled by the particular unit of government. We conclude that while a governmental body
does not have general authority to prohibit such conduct merely by promulgating its own rules,
regulations, or policies, it may, pursuant to section 30.06 ofthe Penal Code, bar entry to a concealed
handgun licensee carrying his weapon by providing individualized verbal notice to such a licensee
or by erecting a sign or other written communication.
We begin with an overview of the relevant statutes. Subchapter H of chapter 411 of the
Government Code establishes a mechanism whereby an eligible individual may be licensed to carry
a concealed handgun. In addition to the restrictions imposed by subchapter H, chapter 46 of the
Penal Code places additional limitations on the carrying of concealed handguns by licensees.
Section 46.035, for example, provides that a licensee commits an offense if he carries his weapon
on the premises of a business licensed to serve alcoholic beverages; on the premises where a high
school, collegiate, or professional sporting event is taking place; on the premises of a correctional
facility; on the premises of a hospital or nursing home; in an amusement park; on the premises of
an established place of religious worship; or “at any meeting of a governmental entity.” TEX. PEN.
CODE ANN. $ 46.035(b), (c) (Vernon Supp. 2000). In addition, section 46.03, the general statute
relating to the carrying of prohibited weapons, provides that “[i]t is not a defense to prosecution
under this section that the actor possessed a handgun and was licensed to carry a concealed handgun
under Subchapter H, Chapter 411, Government Code.” Id. 5 46.03(f). Thus, section 46.03
proscribes the carrying of a concealed handgun by a licensee in the following locations:
(1) on the physical premises of a school or educational institution, any
grounds or building on which an activity sponsored by a school or educational
institution is being conducted, or a passenger transportation vehicle of a school or
The Honorable Pete P. Gallego - Page 2 (JC-0325)
educational institution, whether the school or educational institution is public or
private, unless pursuant to written regulations or written authorization of the
institution;
(2) on the premises of a polling place on the day of an election or while early
voting is in progress;
(3) in any government court or offices utilized by the court, unless pursuant
to written regulations or written authorization of the court;
(4) on the premises of a racetrack, or
(5) in a secured area of an airport.’
(5) in or into a secured area of an airport2
Id. 5 46,03(a)(1)-(5). As you note, however, the term “premises” in both section 46.03 and section
46.035 is defined to exclude “any public or private driveway, street, sidewalk or walkway, parking
lot, parking garage, or other parking area.” Id. @ 46,03(c)(l), .035(f)(3). You ask whether, in
addition to the specific statutory prohibitions oncarrying concealed handguns, “aunit ofgovemment
[may] promulgate rules, regulations, or policies under which such possession would be unacceptable
on its own property or property subject to its control.“3
In our opinion, a unit of government has no authority, merely by promulgating rules,
regulations, or policies, to prohibit entry by concealed handgun licensees carrying their weapons.
As we have noted, subchapter H of chapter 411 of the Government Code enacts a comprehensive
scheme for licensing the carrying of concealed handguns. Although subchapter H curiously does
not indicate what it is that is authorized by the holding of a concealed handgun license, we believe
we may reasonably infer that possessing such a license entitles the holder to carry a concealed
handgun. Section 411.202, for example, states that “[tlhe issuance of a license under this subchapter
is a benefit to the license holder.” TEX. GOV’T CODE ANN. 5 411.202 (Vernon 1998). As one court
has said, “[a] permit to carry a concealed handgun, like other permits and licenses, is not a right but
a privilege under regulations prescribed by the legislature.” Texas Dep ‘fofPub. Safety v.Tune, 977
S.W.2d 650, 653 (Tex. App.-Fort Worth 1998, pet. dism’d w.0.j.). Furthermore, by indicating
‘Text of subdivision (5) as amended by Act of May 29, 1997,7Sth Leg., R.S., ch. 1043, 5 1, 1997 Tex. Gen.
Laws 3969.
“Text of subdivision (5) 11samended by Act of May 3 1, 1997,75th Leg., R.S., ch. 1221,s 2, 1997 Tex. Gen.
Laws 46X4,4685.
‘Letter from Honorable Pete P. Gallego, Texas State Representative,to Honorable John Comyn, Texas
Attorney General at 2 (June 14,200O) (on tile with Opinion Committee).
The Honorable Pete P. Gallego - Page 3 (JC-0325)
specific locations in which a licensee may not carry his weapon, section 46.035 of the Penal Code
implies that he may carry his concealed handgun elsewhere.
If subchapter H, chapter 411 of the Government Code thus authorizes a concealed handgun
licensee to carry his weapon wherever a statute does not affirmatively prohibit his doing so, it
follows that a unit of local government may not, by ordinance, rule, regulation, or policy, place
restrictions on the licensee’s authority to do so. In Attorney General Opinion JC-0048, we said that
the City of Carrollton may not adopt an ordinance prohibiting the killing of feral pigeons because
“such killing is explicitly authorized by section 64.002(b) of the Parks and Wildlife Code.” Tex.
Att’y Gen. Op. No. JC-0048 (1999) at 4. “What the statute allows[,] a city may not by ordinance
forbid.” Id. at 1. See City of Brookside Vill. v. Comeau, 633 S.W.Zd 790, 796 (Tex. 1982)
(ordinance conflicting or inconsistent with state legislation impermissible). We conclude that a unit
of government may not, by ordinance, rule, regulation, or policy, bar the holder of a concealed
handgun license from carrying his weapon onto property owned or controlled by the particular
governmental unit.
Neither does a provision of subchapter H governing the rights of employers authorize such
a rule or policy. Section 411.203 ofthe Government Code provides that “[tlhis subchapter does not
prevent or otherwise limit the right of a public or private employer to prohibit persons who are
licensed under this subchapter from carrying a concealed handgun on the premises of the business.”
TEX. GOV'T CODE ANN. 5 411.203 (Vernon 1998). In Attorney General Opinion DM-363, issued
in the immediate aftermath of the original enactment of the concealed handgun law, this office said
that section 411.203 does not authorize a public or private employer to prohibit persons other than
its employees from carrying concealed handguns on the premises of the business. The opinion
reached this result on the basis of a thorough review and consideration of legislative history, and we
concur with its conclusion. See Tex. Att’y Gen. Op. No. DM-363 (1995).
Although DM-363 found that section 411.203 does not furnish a general means by which a
public or private employer may bar entry to all concealed handgun licensees carrying their weapons,
it nevertheless determined that an employer possesses the means to restrict the carrying of concealed
handguns by any person on property it controlled, by virtue of the criminal trespass statute, section
30.05 of the Penal Code. See id. at 9. Shortly after the issuance of Attorney General Opinion DM-
363, this office also concluded that “[a] state or local governmental entity, by posting notice under
the criminal trespass statute,” could “prohibit a gun-carrying concealed handgun licensee from
entering or remaining on premises of which the governmental body is the ‘owner’ as defined in the
Penal Code.” Tex. Att’y Gen. LO-95-058, at 3.
During its 1997 session, the legislature enacted section 30.06 of the Penal Code, which
creates the offense of “Trespass by Holder of License to Carry Concealed Handgun.” That statute
provides:
(4 A license holder commits an offense if the license holder:
The Honorable Pete P. Gallego - Page 4 (X-0325)
(1) carries a handgun under the authority of Subchapter H,
Chapter 411, Government Code, on property of another
without effective consent; and
(2) received notice that:
(A) entry on the property by a license holder
with a concealed handgun was forbidden; or
(B) remaining on the property with a
concealed handgun was forbidden and failed
to depart.
@I For purposes of this section, a person receives notice if the owner of the
property or someone with apparent authority to act for the owner provides notice to
the person by oral or written communication.
(cl In this section:
(1) “Entry” has the meaning assigned by Section 30.05(b).
(2) “License holder” has the meaning assigned by Section 46.035(f).
(3) “Written communication” means:
(A) a card or other document on which is
written language identical to the following:
“Pursuant to Section 30.06, Penal Code
(trespass by holder of license to carry a
concealed handgun), a person licensed under
Subchapter H, Chapter 411, Government
Code (concealed handgun law), may not enter
this property with a concealed handgun”; or
(B) a sign posted on the property that:
(i) includes the language described by
Paragraph (A) in both English and
Spanish;
(ii) appears in contrasting colors with
block letters at least one inch in
height; and
The Honorable Pete P. Gallego - Page 5 (JC-0325)
(iii) is displayed in a conspicuous
manner clearly visible to the public.
(4 An offense under this section is a Class A misdemeanor,
TEX. PEN. CODE ANN. 5 30.06 (Vernon Supp. 2000). For purposes of section 30.06, “‘[alnother’
means a person other than the actor.” Id. § 1.07(a)(5) (Vernon 1994). “Person” is defined as “an
individual, corporation, or association.” Id. 5 l.O7(a)(38). And “association” includes “a
government or governmental subdivision or agency.” Id. § 1.07(a)(6). Finally, “government”
means:
(A) the state;
PI a county, municipality, or political subdivision of the state; or
P-3 any branch or agency of the state, a county, municipality, or political
subdivision.
Id. 5 l.O7(a)(24).
The statutory language regarding the notice required under section 30.06 is virtually identical
to that employed in section 30.05, the general criminal trespass statute. Because, under the reasoning
of Attorney General Letter Opinion 95-058, section 30.05 is applicable to a governmental body for
purposes of prohibiting the carrying of a concealed handgun, it naturally follows that the more
specific section 30.06 permits a governmental body that is the “owner” of property to prohibit a
concealed handgun licensee from carrying his weapon onto the premises of the governmental body.
Furthermore, “ownership” does not present a problem in such a case. In Arnold v. State, 867 S.W.2d
378 (Tex. Crim. App. 1993), the Court of Criminal Appeals held that, in a criminal trespass case
under section 30.05, the state may establish “ownership” of property “by proving, beyond a
reasonable doubt, that the complainant had a greater right to possession of the property than the
defendant.” Id. at 379. See also Vanderburgv. State, 874 S.W.2d 683,684 (Tex. Crim. App. 1994);
Sparkman v. State, 968 S.W.2d 373,377 (Tex. App.-Tyler 1997, pet. ref d). Thus, a governmental
body, acting through its agent - i.e., “someone with apparent authority to act for the owner” -may
act to bar entry to its property by concealed handgun licensees in the following manner: either by
providing individualized verbal notice to the licensee or by erecting a sign or other written
communication, in compliance with section 30.06, that furnishes statutory notice to concealed
handgun licensees that entry on the property while carrying a concealed handgun is prohibited.
The Honorable Pete P. Gallego - Page 6 (JC-0325)
SUMMARY
A unit of government has statutory authority to bar entry to its
property by a concealed handgun licensee carrying a weapon in the
following manner: either by providing individualized verbal notice to
the licensee or by erecting a sign or other written communication in
compliance with section 30.06 of the Penal Code that furnishes
statutory notice to concealed handgun licensees that entry on the
property while carrying a concealed handgun is prohibited. However,
a unit of government may not, merely by promulgating its own rules,
regulations, or policies, bar the holder of a concealed handgun license
from carrying his weapon onto property owned or controlled by the
particular governmental unit.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
SUSAN D. GUSKY
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General - Opinion Committee