Untitled Texas Attorney General Opinion

KEN PAXTON
ATTORNEY GENERAL OF TEXAS
December 21, 2015
The Honorable Allison Palmer Opinion No. KP-0047
51 st Judicial District Attorney
124 West Beauregard Re: The extent to which firearms may be
San Angelo, Texas 76903-5850 excluded from buildings that contain courts,
offices utilized by the courts, and other county
officials (RQ-0040-KP)
Dear Ms. Palmer:
You seek an opinion about whether provisions of the Penal Code prohibit the exclusion of
firearms from certain colinty buildings. 1 You state that the Tom Green County Sheriff currently
secures the district courthouse and the Tom Green County Justice Center and does not allow
firearms inside the buildings even if the carrier has a concealed handgun license. See Request
Letter at 1. You also tell us about the different offices that are located within other county
buildings that house courts and ask whether firearms may be excluded from each of these buildings
"even if the possessor of the firearm has a concealed handgun license." Id. at 2.
Chapter 411 of the Government Code was amended in 2015 with the enactment of Senate
Bill 273. Act of May 23, 2015, 84th Leg., R.S., ch. 593, § 1, 2015 Tex. Gen. Laws 2000, 2000-
2001 (codified at TEX. Gov'T CODE § 411.209). The primary change under Senate Bill 273 is the.
creation of enforcement measures available against the state or a political subdivision that seeks
to wrongfully exclude a person from carrying a handgun where the person may lawfully do so.
See id. Section 411.209 provides:
A state agency or a political subdivision of the state 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 governmental entity unless license holders are
1
See Letter from Honorable Allison Palmer, 51st Judicial Dist. Att'y, to Honorable Ken Paxton, Tex. Att'y
Gen. at 1-2 (July 14, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request
Letter").
The Honorable Allison Palmer - Page 2 (KP-0047)
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); see also id. §§ 411.171-.209 (subchapter H providing for the
licensing of handguns). 2 Because section 411.209 references sections 46.03, 46.035, and 30.06 of
the Penal Code, we briefly discuss each provision. See id. § 411.209(a).
Section 46.03 of the Penal Code prohibits a person, including a licensee, from carrying
firearms and other prohibited weapons, including handguns, in certain locations identified in, the
section. 3 See TEX. PENAL CODE§ 46.03(a), (f) ("Except as provided by Subsection (e-1), it 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."). The
enumerated locations include premises of schools and educational institutions, polling places
during voting, and other specified locations. See id. § 46.03(a)(l)-(6). Relevant here, section
46.03 prohibits handguns from "the premises of any government court or offices utilized by the
court, unless pursuant to written regulations or written authorization of the court." Id.
§ 46.03(a)(3).
Penal Code section 46.035 lists the locations where a license holder may not carry a
handgun. See id. § 46.035(b). The list of prohibited places in section 46.035 includes the premises
of certain businesses involved in the sale of alcoholic beverages, the premises of a correctional
facility, the premises of certain places of worship, and "in the room or rooms where a meeting of
a governmental entity is held and ifthe meeting is an open meeting." 4 Id. § 46.035(b)(l)-(6), (c).
Section 30.06 of the Penal Code is a criminal trespass statute that essentially allows
property owners to prohibit license holders from carrying concealed handguns onto their property
by providing the prescribed notice. See id. § 30.06(a)-(b); see also id. § 30.06(c)(3) (providing
·exact language necessary to be included on any written communication intended to provide notice
that entry with a handgun is prohibited). But it excepts that property which 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." Id. § 30.06(a), (e). The
exception in subsection 30.06(e) means that a governmental entity does not have general authority
to prohibit concealed handguns from its public buildings other than a location listed in sections
46.03 and 46.035. See id.§ 30.06(e); see also SENATE COMM. ON STATE AFFAIRS, BILL ANALYSIS,
Tex. S.B. 273, 84th Leg., R.S. (2015) at 1 ("When uncooperative governments post signs to ban
Texas citizens from carrying where it is legal, they are breaking the law and infringing on the
2
House Bill 910, also passed in 2015, amended subchapter H and mostly removed the requirement of
concealment with respect to an individual's license to cany a handgun. See Act of May 29, 2015, 84th Leg., R.S., ch.
437, §§ 16-28, 2015 Tex. Gen. Laws 1706, 1710-1714 (codified at various provisions in TEX. Gov'T CODE ch. 411,
subch. H).
3As you ask about only section 411.209 of the Government Code, we limit this opinion to a consideration of
only the prohibition of handguns.
4
You do not ask us to address the scope of subsection 46.035(c). See Request Letter at 1-2.
The·Honorable Allison Palmer - Page 3 (KP-0047)
second amendment rights of Texas citizens. S.B. 273 provides an enforcement mechanism ... to
stop these illegal postings.").
Taken together, these three provlSlons authorize a political subdivision to prohibit
handguns from only the locations identified in Penal Code sections 46.03 and 46.035. Your
questions do not implicate any limitation or expansion of the kinds of locations from which a
governmental entity may prohibit handguns. Rather, you ask only about the scope of the location
identified in subsection 46.03(a)(3) concerning the "premises of any government court or offices
utilized by a court." Request Letter at 1; TEX. PENAL CODE § 46.03(a)(3). Your questions
implicate many fact sensitive issues that cannot be resolved in an attorney general opinion.
However, we will provide the legal guidance that we can.
When construing statutes, courts seek to ascertain and give effect to the Legislature's
intent. See Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009). "The plain
meaning of the text is the best expression of [that] intent[.]" Molinet v: Kimbrell, 356 S.W.3d 407,
411 (Tex. 2011 ). "If a statute ... assigns a particular meaning to a term, [courts] are bound by the
statutory usage." TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011).
"Undefined terms ... are typically given their ordinary meaning[.]" Id
To determine the scope of the prohibition in subsection 46.03(a)(3), we need to construe
the phrase "premises of any government court or offices utilized by the court," which requires an
examination of the term "premises." TEX. PENAL CODE § 46.03(a)(3). Subsection 46.035(f)
defines the term "premises" for purposes of section 46.03. Id. § 46.035(f)(3); see also id.
§ 46.03(c)(l) (defining "premises" by reference to section 46.035). "'Premises' means a building
or a portion of a building. The term does not include any public or private driveway, street,
sidewalk or walkway, parking lot, parking garage; or other parking area." Id. § 46.035(f)(3)
(emphasis added). "[T]he word 'or' is a disjunctive conjunction that indicates a choice between
two alternatives generally corresponding to 'either' or 'either this or that.'" Gunn v. Phillips, 410
S.W.2d 202, 206 (Tex. Civ. App.-Houston 1966, writ refd n.r.e.). The common meaning of
"building" is "a structure with a roof and walls, such as a house, school, store, or factory." NEW
OXFORD AMERICAN DICTIONARY 228 (3d ed. 2010); see also TEX. PENAL CODE § 30.01(2)
(defining "building" as "any enclosed structure intended for use or occupation as a habitation or
for some purpose of trade, manufacture, ornament, or use"). Section 46.03 neither provides nor
directs us to a definition of "government court," but article V, section 1 of the Texas Constitution
vests judicial power in listed courts and "such other courts as may be provided by law." 5 TEX.
CONST. art. V, § 1. It is likely that a court would determine that a "government court" under section
46.03 is any of the judicial bodies created by either the Texas Constitution or by the Legislature.
We also consider the meaning of"offices utilized by the court." TEX. PENAL CODE§ 46.03(a)(3).
Section 46.03 does not define the term "office," but a Texas court of appeals has defined "office"
5
The Legislature has provided for the courts in chapters 22 through 30 of the Government Code, which
contain provisions for each of the different types of courts, and all of which have judicial authority to determine rights
as between persons or property. See TEX. Gov'T CODE §§ 22.001-.302 (appellate courts), 24.001-.954 (district
courts), 25.0001-.2702 (statutory county courts), 26.001-.353 (constitutional county courts), 27.001-.061 Gustice
courts), 29.001-.105 (municipal courts), 30.00001-.01904 (municipal courts of record). Created by the Texas
Constitution or by the Legislature, these bodies are courts established by the government.
The Honorable Allison Palmer - Page 4 (KP-0047)
as a "place where a particular kind of business ... is transacted." Anderson v. State, 17 Tex. Ct.
App. 305, 310 (1884). The common meaning of "utilize" is to "make practical and effective use
of." NEW OXFORD AMERICAN DICTIONARY 1909 (3d ed. 2010).
Thus, the phrase "premises of any government court" generally means either (1) a structure
utilized by a court created by the Texas Constitution or the Legislature, or (2) a portion of such a
structure. And the premises of an office utilized by the court generally means a building or portion
of a building that is a place where the business of a government court is transacted.
But such alternatives still do not provide any clarity with respect to where section 46.03
prohibits handguns. If the Legislature intended for the entire structure with a government court in
it to be a location from which firearms are excluded, it could have redefined "premises" to mean
only a building. See Kappus v. Kappus, 284 S.W.3d 831, 835 (Tex. 2009) (recognizing that the
Legislature chooses "its words carefully and intentionally"). It did not. To so construe subsection
46.03(a)(3) would essentially render the language "portion of a building" meaningless-a
construction that, like the courts, we try to avoid. See Hanson v. Jordan, 198 S.W.2d 262, 263
(Tex. 1946) (stating that courts "should avoid a construction which renders any provision
meaningless"). By including the "portion of a building" language, the Legislature evidenced an
intent to have the prohibition in subsection 46.03(a)(3) equally apply to an area that is less than
the entire structure. Thus, the disjunctive "or" in the phrase may not provide a discretionary choice
between two alternatives as much as recognition that flexibility is necessary to accommodate the
different kinds of spaces courts utilize in various types of buildings.
Further, when considering the statute as a whole, under subsection 46.03(a)(3) a court may
issue written regulations or provide authorization concerning the allowance of firearms on its
premises. See TEX. PENAL CODE§ 46.03(a)(3) (establishing an offense for carrying a prohibited
weapon "on the premises of any government court or offices utilized by the court, unless pursuant
to written regulations or authorization of the court"). A court's authority with regard to such
regulations or authorization would not include areas of the building that are beyond the operations
of the court. This is some indication that the Legislature intended the prohibition in subsection
46.03(a)(3) to have a limited reach.
Yet, in the greater context of sectfon 411.209' s penalty against a governmental entity
improperly excluding handguns, the Legislature also amended subsection 46.035(c), Penal Code,
to prohibit handguns from the "room or rooms where a meeting of a governmental entity is held."
TEX. PENAL CODE § 46.035(c) (emphasis added). By this amendment, the Legislature indicated
that it knows how to limit the handgun prohibition to a specific room in which an activity is
conducted. The Legislature chose to use the term "government court," instead of government
courtroom. Id. § 46.03(a)(3). So, though the Legislature may have intended subsection
46.03(a)(3) to have a limited reach, it did not expressly limit section 46.03(a)(3) to only the room
that houses the government court.
The Legislature has not clearly demarcated, or established, a precise boundary in a building
or portion of a building at which handguns are prohibited or permitted. Yet, it has established an
enforcement scheme that can be properly effectuated only where such a boundary is determined
;md definitive. Similarly, the Legislature has not provided the Attorney General's Office with
The Honorable Allison Palmer - Page 5 (KP-0047)
specific authority to make rules governing this enforcement scheme. While the outside limits of
subsection 46.03(a)(3) may be unclear, at the very least it can be said that the Legislature intended
to prohibit concealed handguns from the rooms that house government courts and offices central
to the business of the courts. 6 Accordingly, in the absence of clarity from the Legislature and in
order to provide concrete advice to governmental entities seeking to secure their courts without
penalty, we construe subsection 46.03(a)(3) to encompass only government courtrooms and those
offices essential to the operation of the government court. Section 46.03(a)(3) recognizes the
power of government courts to override the ban on concealed handguns in that a court may issue
"written regulations or written authorization" allowing the carrying of concealed handguns in their
spaces. Likewise, we routinely acknowledge that decisions such as this are for the governmental
entity in the first instance, subject to the applicable review. See, e.g., Tex. Att'y Gen. Op. KP-
0007 (2015) at 2 (concluding that the determination of whether the expenditure of public funds is
for a public purpose is for the governmental body in the first instance, subject to judicial review).
Accordingly, the responsible authority that would notify license holders of their inability to carry
on the respective premises must make the determination of which government courtrooms and
offices are essential to the operation of the government court. And it is that authority that could
face the statutory civil penalty. TEX. Gov'T CODE§ 41 l.209(a) (prohibiting "[a] state agency or
a political subdivision of the state" from providing improper notice). If this authority is not the
government court itself, the responsible authority would presumably consult with the government
court to determine what government courtrooms and offices are essential to its operation.
6 Toward that end, these parameters from the Legislature will presumably prevent a governmental body from
using pretext to attempt to exclude the licensed carrying of handguns where the law allows it.
The Honorable Allison Palmer - Page 6 (KP-0047)
SUMMARY
For purposes of section 411.209 of the Government Code,
the phrase "premises of any government court" used in Penal Code
subsection 46.03(a)(3) generally means either (1) a structure utilized
by a court created by the Texas Constitution or the Legislature, or
(2) a portion of such a structure. The premises of a "government
court or office utilized by the court" means a government courtroom
or those offices essential to the operation of the government court.
The responsible authority that would notify license holders of their
inability to carry on the respective premises must make the
determination of which government courtrooms and offices are
essential to the operation of the government court, in consultation
with the government court.
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