Untitled Texas Attorney General Opinion

KEN PAXTON
ATTORNEY GENERAL OF TEXAS
December 21, 2017
The Honorable Dan Patrick Opinion No. KP-0176
Lieutenant Governor of Texas
Post Office Box 12068 Re: Whether handgun license holders may
Austin, Texas 78711-2068 carry handguns on the premises of a church that
does not post signs excluding handguns and
whether churches are exempt from the private
security fees charged to private institutions
(RQ-0196-KP)
Dear Governor Patrick:
Due to a tragic church shooting that recently occurred in Sutherland Springs, Texas, you
ask two questions related to church security. 1 You first ask whether handgun license holders may
"carry their handguns on the premises of a church that does not post signs excluding handguns."
Request Letter at 1.
Subsection 46.035(b) of the Penal Code provides:
A license holder commits an offense if the license holder
intentionally, knowingly, or recklessly carries a handgun under the
authority of Subchapter H, Chapter 411, Government Code,
regardless of whether the handgun is concealed or carried in a
shoulder or belt holster, on or about the license holder's person:
* * * *
(6) on the premises of a church, synagogue, or other established
place of religious worship ....
TEX. PENAL CODE§ 46.035(b)(6). For purposes of this section, the Legislature defined "premises"
as "a building or portion of a building." Id. § 46.035(±)(3). Read in isolation, this subsection
seems to suggest that Texas law prohibits a license holder from carrying a handgun on the premises
of a church. However, courts read statutes in context, not in isolation. Cadena Comercial USA
Corp. v. Tex. Alcoholic Bev. Comm'n, 518 S.W.3d 318, 326 (Tex. 2017) ("These words and
1See Letter from Honorable Dan Patrick, Lt. Gov. of Tex., to Honorable Ken Paxton, Tex. Att'y Gen. (Dec. I,
2017), https://www.texasattomeygeneral.gov/opinion/requests-for-opinions-rqs ("Request Letter").
The Honorable Dan Patrick - Page 2 (KP-0176)
phrases are not to be considered in isolation, but rather in the context of the statute as a whole.").
Subsection 46.035(i) further provides:
Subsections (b)(4), (b)(5), (b)(6), and (c) do not apply if the actor
was not given effective notice under Section 30.06 or 30.07.
TEX. PENAL CODE § 46.035(i) (emphases added). Sections 30.06 and 30.07 make it a criminal
offense for a license holder to carry a concealed handgun and openly carry a handgun, respectively,
on property of another without consent when the license holder received notice forbidding carrying
a handgun on the property. Id. §§ 30.06(a), 30.07(a).
Those sections also establish methods for providing notice to prohibit a license holder from
carrying a handgun onto the property. 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." Id. §§ 30.06(b), 30.07(b). Section 30.06 describes how to provide notice
by written communication to forbid a license holder with a concealed handgun:
(A) a card or other document on which is written language identical to
the following: "Pursuant to Section 30.06, Penal Code (trespass by
license holder with a concealed handgun), a person licensed under
Subchapter H, Chapter 411, Government Code (handgun licensing
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
(iii) is displayed in a conspicuous manner clearly visible to the
public.
Id. § 30.06(c)(3). Section 30.07 similarly establishes how t0 provide a notice by "written
communication" for purposes of prohibiting a license holder with an openly carried handgun. Id.
§ 30.07(c)(3). Construed together, these Penal Code provisions prohibit a license holder from
carrying a handgun onto the premises of a church only when the actor received effective notice
through oral or written communication. Id. §§ 30.06-.07, 46.035(i).
In effect, the Legislature provided churches the same option as most other private entities
to decide whether to allow the carrying of handguns onto the premises of church-owned property.
If a church decides to exclude the concealed or open carrying of handguns on the premises of
church property, it may provide the requisite notice, thereby making it an offense for a license
holder to carry a handgun on those premises. See id. §§ 30.06(a), 30.07(a), 46.035(b)(6).
The Honorable Dan Patrick - Page 3 (KP-0176)
However, churches may instead decide not to provide notice and to allow the carrying of handguns
on their premises. See id. § 46.035(i). Unless a church provides effective oral or written notice
prohibiting the carrying of handguns on its property, a license holder may carry a handgun onto
the premises of church property as the law allows. Id.
Many churches in Texas conduct their services and activities on property leased from other
private or governmental entities. Whether license holders may carry handguns on the premises of
a church utilizing property of another entity may depend on the contractual arrangement between
the church and the property owner or the legal limitations placed on the governmental entity
owning the property. See id. § 30.06(e) (creating an exception to the offense of trespass by a
license holder with a concealed handgun when property "is owned or leased by a governmental
entity and is not a premises or other place on which the license holder is prohibited from carrying
the handgun under Section 46.03 or 46.035"). As an example, subsection 46.03(a)(l) of the Penal
Code generally prohibits the carrying of a firearm "on the physical premises of a school or
educational institution." Id.§ 46.03(a)(l). 2 An educational institution leasing property to another
could by "written regulations or written authorization" allow persons to possess a firearm on its
property. 3 Id. § 46.03(a)(l)(A). However, an entity leasing or otherwise utilizing the property of
the educational institution does not have separate authority to allow the carrying of handguns on
the property. See id. Thus, to the extent a church operates on property other than its own, it should
consult with the owner of the property to determine the extent to which it may prohibit or allow
the carrying of handguns on the premises of such property.
You also ask whether the Legislature waived "the private security fee for churches that
Texas charges to private institutions." Request Letter at 1. The Private Security Act (the "Act")
governs the licensing and registration of, among others, private security officers and the entities
that employ or contract with those officers. TEX. 0cc. CODE§ 1702.001 (labeling chapter 1702
as the "Private Security Act"); id.§ l 702.004(a) ("General Scope of Regulation"). The Act defines
"security officer" as an individual "(1) employed by a security services contractor or the security
department of a private business; and (2) employed to perform the duties of an alarm systems
response runner who responds to the first signal of entry, a security guard, security watchman,
security patrolman, armored car guard, or courier guard." Id. § 1702.222. An individual may not
accept employment as a security officer carrying a firearm unless the individual holds a security
officer commission. Id. § 1702.161.
The Act also requires any private business that employs a commissioned security officer
to first obtain a letter of authority from the Texas Private Security Board. Id. § 1702.181. The fee
2The general prohibition against carrying firearms on school premises would extend to open-enrollment
charter schools as well. See TEX. EDUC. CODE § 12.103(a) ("an open-enrollment charter school is subject to federal
and state laws and rules governing public schools").
3
Due to the general prohibition of firearms on the premises of a school or educational institution under section
46.03(a)(l), license holders will likely presume that they do not have authority to carry handguns on such premises,
regardless of the lack of notice prohibiting concealed or open carry. See TEX. PENAL CODE § 46.03(a)( I). If an
educational institution provides written regulations or written authorization to allow a church to permit carrying
handguns on its property pursuant to subsection 46.03(a)(l)(A), and the church desires to do so, the church should
affirmatively communicate that authority to its congregants.
The Honorable Dan Patrick - Page 4 (KP-0176)
for obtaining an original letter of authority is $400. 4 By statute, a letter of authority "expires on
the first anniversary of the date of issuance," and the fee for renewing the letter is $225. Id.
§ 1702.301 (g). 5 In the past, questions arose about whether these regulations and fees applied to
churches providing security.
However, during the past session, the Legislature passed Senate Bill 2065, enacting section
1702.333 of the Occupations Code. 6 That provision provides that the Act "does not apply to a
person who is providing volunteer security services on the premises of a church, synagogue, or
other established place of religious worship." Id. § 1702.333(b). The Act defines "person" to
include not only an "individual," but also a "nonprofit organization, institution, or similar entity."
Thus, a church and its volunteers would therefore qualify as persons for purposes of this section.
Id. § 1702.002(16). Additionally, the statute defines "volunteer security servic~s" as services
regulated under the Private Security Act and "provided without compensation or remuneration."
Id. § 1702.333(a). To qualify for the exemption, the person providing volunteer security services /
"may not wear a uniform or badge that: (1) contains the word 'security'; or (2) gives the person
the appearance of being a peace officer, personal protection officer, or security officer." Id.
§ 1702.333(c). Thus, the regulations of the Act, including the fees required thereunder, do not
apply to Texas churches when providing volunteer security services on their premises consistent
with the requirements of section 1702.333.
4Private Security Fee Schedule, Tex. Dep't of Pub. Safety Regulatory Servs. Div., available at
www.dps.texas.gov/rsd/psb/docs/FeeSchedule.pdf.
5
See id.
6 Act of May 28, 2017, 85th Leg., R.S., ch. 967, § 11.001, 2017 Tex. Gen. Laws 3912, 3933 (S. 8. 2065).
The Honorable Dan Patrick - Page 5 (KP-0176)
SUMMARY
Unless a church provides effective oral or written notice
prohibiting the carrying of handguns on its property, a license holder
may carry a handgun on church property as the law otherwise
allows.
The regulations of the Private Security Act, including the
fees required thereunder, do not apply to Texas churches when
providing volunteer security services consistent with the
requirements of section 1702.333 of the Occupations Code.
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