Untitled Texas Attorney General Opinion

@ffice of the Qttotnep @eneraI
&Stateof Cexas
DAN MORALES
AlTORX’
tENEaAl.
Ey August 3q 1995
HonorableRodney Ellis OpinionNo. DM-363
chair
lntergovemmental Relations Re: Whetha the recently enacted con-
Texas State Senate cealed handgun law, Senate Bii 60,
P.O. Box 12068 partiadarly the provision to be cod&d as
Austin,Texas 78711 V.T.C.S. article 4413(29ee), section 32,
permits a business owner or opa-ator .to
post notices prohiiig license holda-s
caqing concealed handguns f?om the
pmnises Of the business, and related
questions (RQ-821)
DearsenatorEk
You ask several questions about the wnded handgunlaw, Senate Bg 60, which
was mcdy enacted by the Seveaty-fbuth Legislature. See Act of May 16,1995,74th
Lq., RS., ch. 229.1995 To; Sess. Law Sav. 1998. Saute Bii 60 establishes an
exkmve and detailed qulatory scheme, which will be codified as V.T.C.S. article
4413(29ee), whatby a person may apply to the Dcparmrentof Public safety for a licutse
tocarryrconceakdhandgun. &ekf.~l,at1998. Youaskseveralquestionsaboutthe
rights Of such license holdas to cany concealed hand- and the rights of bus&as
ownas and opaators to exclude license holders carrying concealed handguns tirn their
premises.
Pii you ask, r)oes Senate Bii 60 give the holder of a concealed [handgrm
license] the afhmive right to cany a concealed [handgun] anywhere [he or she
chooses]? Exactly what are the restrictions?” Senate Bill 60 does not contain a provision
which expressly delineates the rights of a kense holder nor does it expressly provide that
a license holder may carry a conceakd handgunwhereve-rhe or she chooses. On the other
hand, it does amend the Penal Code provisions regarding the unlati-canying of
weapons. Section 46.02(a) of the Penal Code generallyprotides,that a person commits ac
offense if he or she car&s a handgun or other prohibited weapon. An offense under
section 46.02 is a class A misdemeanor, id. 8 46.02(e). unless it is committed on “any
premiseskensedorissuedapermit... for the sale of alcoholic beverages,”in which case
it is a third degree felony, id. 6 46.02(f); see also i&i note 1 (disaking recently enacted
Penal Code $46.11). Subsection (b) provides various defenses to prosecution under
sub&on (a). Senate Bill 60 adds subsection (b)(7), which provides that it is a defenseto
prosation under subsection (b) if the p-n was “carr$ng a concealed handgun and a
valid license issued under Article 4413(29ee). . . to carty a concealed handgun of the
Honorable Rodney Ellis - Page 2 @M-363)
same category as the handgun the person is carrying.” Act of May 16, 1995, 74th Leg.,
RS.. ch. 229, 5 2. 1995 Tex. Sess. Law Serv. 1998.2013. Thus, Senate Bill 60 excepts
license holders from the genera)prohibitionagainst carryinghandguns.
Senate Bill 60 also clearly provides that a license holder is not petmitted to carry a
concealed handgun in certain places. Section 46.03 of the Penal Code specitically
prohibits the carrying of a handgun (or other prohibited weapon) in certain places. An
offense under section 46.03 is a third degree felony. Pet+ Code 8 46.03(g). Senate Bill
60 renumbers subsection (r) of section 46.03 as subsection (g) and inserts new language
into subsection (f) providing that it is not a defense to prosecution under section 46.03
thattheaaorpossesseda~~~waslicensedtocarryaconcealedhandgununder
article 4413(29ee). Act of May 16, 1995.74th Leg.. RS.. cb. 229. § 3. 1995 Tex. Sess.
Law Serv. 1998.2013. Section 46.03 prohibitsthe carrying of a handgun
(1) on the physical premises of a school or educational
insdtution, any grounds or building on which an actkity sponsored
by a school or educational instiition is being conduU&1 or a
passenger transportation vehicle of a school or educational
institution, whether the schcol or educational institution is public or
private. mless pursuant to written regulations or written
lluthonzaton 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)inanygovermnentcomtorofficeautilked~+ecour&
unlesspursuanttowrittenregulaGonsorwrittenauthonzaaonofthe
court;
(4) on the premises of a mcetrack or
(5) into a secured area of an airport. [Footnote added.]
Act of May 27,1995,74th Leg., R.S.~ch. 260.0 42.1995 Ten Sess. Law SW. 2207.
2490. Thus, it is clear from Senate Bill 60 that a license holder is not permitted to carry a
concealed handgun in the foregoing places.
‘The language “any grmn& 01 building en which an activity @ona’cd by B schcol or
edacationsl institutionis being a&W was addedto section 46.03 by the Sev%nty-fomth Legistature
in SenateBill 1. Set-Act of May 27, J995.74th Leg., KS., ch. 260.@ 42,86 (act etfectiveimmediately
accept ss o(henrric provided). 1995 Tex. !ks. Law Serv. 2207,249O. 2505. SenateBii 1 also added
s&on 46.1 I to the Penal Code, which providesthal the pcnakyfor mostot%nsesmulerchapter46 of the
Peaal Code “is increasedto ~thepunishmentprescribedfor the next highest categoryof sense” ifit is
shown thattie actorcommittedthe offeose within s weapon-freeschool zone. Id. 0 43. at 2490-91.
p. 1957
HonorableRodney Ellis - Page 3 @M-363)
In addition, Senate Bii 60 adds section 46.035 to the Penal Code. AU of May 16,
1995.74thLeg.. RS.. ch. 229.p4.1995 Tex. Sess. Law Serv. 1998.2013-14. Subset-
tion (b) of section 46.035 provides that a license holder commits an offense if he or she
intentionaUy,knowingly, or recklessly carries a handgun under the authority of article
4413(29ee) in certain places.2 Such conduct is prohibited
(1) on the premises of a business that has a permit or license
issued under Chapter 2528.32, or 69. AlcoholicBeverage Code, if
the business derives 51 percent or more of its incomefrom the sale of
alcoholicbeverages for on-premisesconsumption;
(2) on the premises where a high schooL collegiate. or
professional sporting event or htterscholastic event is taking place,
unless the licenseholder is a participant in the event and a handgunis
used in the event;
(3) on the pmises of a correctional ihcilim
(4) on the premises of a hospital licensed under Chapter 241,
HcalthandSafayCodc,orontheprrmisesofarmrsingbome
licensed under Chapter 242. Health and Safq Code, unless the
license holder has written authorization of the hospital or nursing
home admimstration,as appropriate;
(5) inanamusementpark3;or
(6) on the papises of a church, synagogue, or other established
place of religiousworship. [Footnote added.]
23hcclinll (a)cf seelicn46.035alsogovanslhenlmmerinwhiehaliwmeholderrrmycmya
llandgtm. 1tpmvidgchatrliccnscholdercarryingrhand~mda~ruthoritydrrticle~l309a)
eommttsannffenseifhccrshcintentionauyfailsmeonceallhehandgulL Iltsrdefensemprosecolion
~~~(a)irthC~dirpl~theh-trdaunlmdaciraunslanccsin~~horcbcwoutd
havebeenjmitiedintheweofdeadlyfotc.eunderchaptcr9dthePenalCodc Fmlalcode~46.03xll).
~~46.035(d)pmvides~aliccnsebol~wmmilsmoffcnscifhcorrhc~rbandgununder
the authorityof section4413(29ee)while intoxkated.
%eIeml-sm useme park”is definedby F’enalcode section46.035(f)(l) 8s follows:
apamanuuiaQororoutdoortacitityorparlrwhercamusemcntrider~
ovailableforurebyth~~ctba(klocatedinImuntywithapopJationof
morcthanonemiltion,~~atlcad7Sacrrrinwtaceuca.isendoscd
with aaes5 only thruughe0nUulb.l entries.is ripenfor opxation morethan 120
days in each calendaryear.and has securityguardson the prendsts at all times.
The term does not include any public or privatedfiveway, stree&sidewalk or
walkmy, parkinglol, puking garage.,or otherparkingatea.
Act ofMay 16,1995,74th Leg., KS., ch. 229.8 4.1995 Tex. Sess. Law Serv. 199%2014.
p. 1958
Honorable Rodney Ellis - Page 4 (UM-363)
Id. In addition, subsection(c) of section 46.035 provides that a license holder commitsan
&JLW if he or she intentionally, knowingly. or recklessly carries a handgun under the
U~~OI’@ of article 4413(29ee) at any meeting of a governmentalentity. Subsection(g) of
section 46.035 provides that it is a class A misdemeanorto carry a concealed handgunat
the foregoing places, with the exception ofthe premisesof businessesthat have permitsto
SCUalcoholic beverages and correctional facilities. Canying a concealed handgun on the
latter two types of premises constitutes a third degree felony. See uLr0 supra note 1
(discussingrecently enacted Penal Code 0 46.11).
The term “premises”as used in section 46.035 “means a buildingor a portion of a
building. The term does not include any public or private driveway, street, sidewalk or
Walkway,parking lo&parking garage, or other parking area.” Penal Code 5 46.035(f)(3k
see u&o id. 0 46.035(f)(l) (providing that the term “amusement park” does not include
“any public or private driveway, street, sidewalk or walkway, parking lot, parking garage,
or other parking area.“). This detinition of “premises”was added after a witness testified
in committee hearings on Senate Bii 60 that case law defmes “premises”broadly, to
include parking lots, driveways, and land adjacent to a building. Hearings on S.B. 60
Before the House Comm. on Public Safbty, 74th Leg.. RS. (March 21. 1995) (testimony
of Charles Cotten) (tape avaiile f?om House Video/Audio Services Office). He was
concaaed that an individualwho went Som~tplace where concealed m were prohibited
would commit a crime by driving into the driveway. Id He felt that the legislature
intendedthatMindivi~cwldleavehisguninthcuuwhenheorshewcntinsosucha
building. Id Thus, while section 46.035 prohibits the carrying of a handgun at the
foregoing places, it does not prohibit the carrying of a handgun in the driveway. street,
sidewalk or walkway, parking lot, parking garage, or other parking area of a business that
sells alcoholic beverage+ a high school, collegiate, or professional sporting event or
intertxholastic evaa, comctional hility, hospital or nursing home, amusement park, or
church, synagogue, or other establishedplace of religiousworship.4
Your next questions arise from the provision of Senate Bill 60 which enacts
section 32 of article 4413(29ee) as follows:
‘As lhc witncis slstcd, the term“pmmises”is osuaIlydefinedmorebroadlyto includenc4only a
buildingb\ltIllsothe~olOrlandunda(heconirolofthebusinepowneroruponwhiehche~~~
bxated. See, cg., J.B. Adwtising, Inc. Y. ,Srgn Ed. o/Appols. 883 S.W.2d U3, U7 (-Rx. App.-
EasUaad 1994, writ denied); Ako. Bev. Code p 11.49 ‘(defining“premises”for pmpca of Alcoholic
Beamage Code); AttorneyGeneral Opinion H-22 (1973) 8t 3. Although the legislaturegave term
>mmises” 8 differentmeaningfor pmposesof section46.035. as discus& below we believethat Senate
Bill 60 does not affectthe rightsofa primte propertyowner10pmhiit the carryingof handgunson their
privateproperly.Thiscould includeprivatelyowned drkway$ star& sidewalksor w&ways, paclring
lots, parkinggarages,and otherparkingareas. For this rracon,conductwhich is not an offense tmder
section 46.035 of the Penal Code becauseit occurs al 8 pke excludedfrom the definition of the term
“pm&es”maybe an offcnscundersection30.05 of the Penal code. See in/a pages 5-9.
p. 1959
Honorable Rodney Ellis - Page 5 @M-363)
This article does not prevent or otherwise limit the right of a
public or private employerto prohibit persons who are licensedunder
thk article from carryinga conceakd handgunon the premises of the
business.
Act of May 14 1995. 74th Leg., RS., ch. 229, Q1, 1995 Tex. Sess. Law Serv. 1998,
2012. YOUash whether this provision gives business owners and operators the right to
post notices prohibitingpersons 6om carrying concealed handguns on the premisesof the
btt.hes.~, or whether it is limitedto permitting employersto restrict their employees from
canying conceakd handguns on the premises. You also ask, “Does this bii prevent any
business owner [or] operator from regulating the canyhtg of conceakd [handguns] on
the . . . premises [of the owner’sor operator’s business]?”
On its face, the intent of section 32 is ambiguous. While it refers to an
“empkyer~”it uses the term ‘person” rather than the term employee. Thus, it is not dear
dether the purpose of section 32 is to permit all businessesowners and operators, or just
employers, to knit all persons, or just employees, from carrying concealed handguns on
the premises of their businesses. As explainedbelow, the legislative history of Senate Bii
60 suggests that section 32 is intended to apply only to the employer-employee
mktkn&ip. We beJim it is also -clear from the kgisktive history of Senate Bii 60,
however, that the kgiskture did not intend the act to Prechtde private propetty owners
from exckding license.holders carrying concealed handguns from their premises under
certain circumstancesregardkss of their status as employeesor nonemployees.
Before turning to the kgkktive history of Senate Bill 60, ‘webegin our analysk
wahabrief~onofthekw~gtherightsofpropatyownentoexclude
others. As a general mattes, ‘[t]he power to exclude has tradiionsJly been consideredone
of the most treasured strands in an owner’s bundle of property rights.” Loretio v.
TeleprompterManhattan CAlVGxp.., 458 U.S. 419,43536 (1982) (citing Z&r&rAernta
v. United Dares, 444 U.S. 164, 179-80 (1979); ,Restatement of Property 8 7 (1936)).
“‘At common law, proprietors of private entetprises such as .places of amusement and
entertainment can admit or exclude whomsoever they please, and their common-kw right
continues until. changed by legislative enactment.‘” Bred& v. Be&h Purk Ltd.
Partner&p, 617 N.E.Zd 1096.1097 (Ohio 1993) (quoting Fletcher v. Coney Zskznd,Inc.,
134 N.E.Zd 371 (1956)). “Nothing is more ekmentary than [the] right [of) a private
corporation to admit or exclude any persons it pleases from its private property, absent
some definite legal compulsionto the contrary.” Martin v. Monmouth Park Jockey CZub,
145 F. Supp. 439 (D.N.J. 1956). Texas cases are in accord. Terrell Wells Swimming
Pool v. Rodriguez, 182 S.W.Zd824, (Tex. Civ. App.-San Antonio 1944. no writ) (“The
law in this State is well settled that in the absence of Cii Rights Legislation to the
contrary the proprietor of a place of amusement which is privately operated can refuse to
sell a ticket to and msy thereby exclude any person he desires from the use of his facilities
for any reason sufficientto him, or for no reason whatever.“);Jordan v. Conch0 ?‘heutres,
Inc., 160 S.WSd 275,276 (Tex. Civ. App.-El Paso 1941, no writ) (“Theatre business is a
p. 1960
HonorableRodney Ellis - Page 6 @M-363)
private business, subject to such restrictions as the legislative authority may impose; it
owes no public dury; it is not compelled to admit any who may apply, but may deny
admissionto any it desires.“).
The principle that a property owner may exclude persons from his or her premises
is tmbodkd in the Texas criminaltrespass statute, section 30.05 of the Penal Code, which
provides as foUows:
A person commitsan offenseif he enters or remains on property
or in a buildingof another without effectiveconsent and he:
(1) had notice that the entry was forbiddm; or
(2) receivednotice to depart but failedto do so.
An offense under section 30.05 is generally a class B misdemeanor but is a class A
misdemeanor if “the actor carries a deadly weapon on or about his person during the
commissionof the offense.” Penal Code 8 30.05(d).
For purposes of this statute, “notice”includes“oral or written rxxmmmicationby
the omer or someone with apparent authority to act for the owner,”id. 5 30.05(b)(2)(A),
and -a sign or signs posted on the property or at the entrance to the building reasonably
likely to come to the attention of brtruders, indic&ng that entry is fotbidda” id.
# 30.05(b)(2)(C). ‘Effective consent”means %onsent by a person legally authorized to
act fbr the ownerw Id. 4 1.07(19). Y.hvt& means a person who, in the case of real
property, “has title to the prom, possessionof the property, whether lawrid or not. or a
greater right to posse&on of the property than the actor.” Id. 8 1.07(35)(A). To be an
uo~ under this provision, one need not possess title to the property but must merely
have a greater right to possession of the property than the actor. See, e.g., GoZZingerv.
Saute, 834 S.W.2d 553, 557 (Tex. Cii. App.-Houston [14th Dist.] 1992, no writ)
(employeewho was in charge of operating employer’sficilities was owner of Premkes for
purposes of criminal trespass statute); Bustillos v. StWe, 832 S.W.Zd668,672 (Tex. Cii.
App.-El Paso 1992, writ refd) (buildingmanager in actual possession of the property and
who had greater right of possessionthan protesters was owner of buildingfor purposes of
crimhmltrespass statute). Thus, a business owner or operator who does not possess title
to the business premises would still generally qualify as an “owner” under the cdminal
trespass statute.
Clearly, under Texas law as it existed prior to the passage of Senate Bii 60, a
business owner or operator could Sle a criminalcomplaint against a person who came on
to the business premises contrary to the terms of a posted notice. The question we must
next consider is the extent to which Senate Bill 60 is intended to change existing law.
The language in section 32 was not in Senate Bill 60 as introduced. See S.B 60
74th Leg., R.S. 29 (1995) (as introduced) (copy on file at Texas Legislative Reference
Library). Rather, Senate Bill 60 as introduced contained a limited list of places where
p. 1961
HonorableRodney Ellis - Page 7 @M-363)
license holders were expresslyprohiied from carryingconcealed handgunsto be cod&d
in section 13 ofartide 4413(29ee). Id. at 18. The wmmittee substitute for Senate Bii 60
added the fogowing place to that list: “privately owned premises wmmon~yused by the
public, ifthe owner of the premises prominentlyd&playsat each entrance to the premises
a noti= that it is unlawrirlto carry a handgunon the premises.” C.S.S.B. 74th Leg., RS.,
60.8 1, (1995). At the Senate CriminalJusticeCommitteehearing Senator Pattersoh the
sponsor of the bii testified as follows:
Any person can prohibit somwne from carrying on their residence
premises-their businesspl-mks-w that is a right they already
have in law, by V&UCof private property rights
He indicated that the committee substitute was hrtendedto retlect existing kw, with the
addition of the posting requirement in the case of privately owned premisea commonly
used by the public. Hearings on S.B. 60, Senate Criminal Justice Comm., 74th Leg.
(Februay 28, 1995) (testimony of Senator Patterson) (tape available from Senate Staff
services oftiw).
Section 13 was deleted in its entirety from the committee substitute for Senate Bill
60 on the Senate floor. S.J. 0F TM, 74th Leg., RS. 597 (1995). It was replaced with a
provision adding sectioa 46.035 to the Penal Code. That amendment set tbrth a list of
places & a license bolder would be prohibited corn carrying a handgun, hrcluding
‘privately owned premises commonly used by the public, if the owner of the premks
prominanlydisplays~S~entrancctothepranisesrnotice~itis~~tocarrya
handgun on the pmmises.” See S.B. 60.74th Leg., RS.. 8 4, at 37 (1995) (as engrossed)
(copyon6lewithTexasLegiUveRef~Lii). Asnotedabove,anoffenseunder
this provision is gencdy a class A misdemeanor. Senator Brown exphrinedthat the
purpose of this amendment was to coordinate the list of prohibited places with the Penal
Code. Debate on S.B. 60 on the Floor of the Senate, 74th Leg. RS.. (h4arch 15. 1995)
(testimony of Senator Brown regarding tloor amendment no. 6) (tape available from
senate staffstices Office).
The House Committee on Public Safkty deleted the provision which would have
been codiied in section 46.035 of the Penal Code making it a class A misdemeanor to
carry a concealed handgun on posted “privately owned premises commonly used by the
public”and added the “rights of employers”provisionthat is now wdiied as se&on 32 of
article 4413(29ee) in the house committee substitute for Senate Bill 60. Representative
Allen, a house sponsor of Senate Bill 60, explainedthat the latter provision “provides that
nothing in this act shall be construed or interpreted as preventing or otherwise limitingthe
right of any private or public employer from lawfullybarring license holders from carrying
concealed handguns on their own premises.” Hearingson H.B. 72 and S.B. 60 Before the
House Corn. on Public Safety, 74th Leg., RS. (April 4, 1995) (testimony of
Representative Allen) (tape availablethrough House Video/Audio Services Office);
p. 1962
Honorable Rodney Ellis - Page 8 @M-363)
The diizmes between the senate version of Senate Bill 60, wntsining the Penal
Code provision regarding “privately owned premises wmmonly used by the public,”and
the house version of the bii wntainhrg the “rights of employers” provision. were
reconciled in wnferenrc~committee. With respect to the latter provision, the wnference
committee discussion reveals that the legislators thought that employers had the right
under acisting law to preclude employees from carrying handguns on their business
premises, but that the provision had been included anyway to satisfy the wncerns of
certain employers. Representative Carter, for example, explained that the Legislative
Council had opined that although an employerhad the right to prohibit an employee t+om
carrying a handgun on the premises of the business under existing law, “there was some
gray area in there, so this is just an a&native statement that an employer,without doubt,
can tell his employees that they can’t carry on the premises.” Conference Committee on
Senate Bii 60,74th Leg. RS. (May 7.1995) (tape availablefrom Senate St& Services
Oftice). On the basis of this evidence of legislativeintent, we ~wncludethat section 32 is
intended to apply only to the.employer-employeerelationship.
The provision in the senate version of Senate Bill 60 regard@ “privately owned
premises wmmonly used by the public,”was the topic of extensive discussion later in the
wnfbnce wnnnittee. RepresentativeAllenexplainedthat this provisionwas
deliitely omitted from the House version [the house wrmnittee
substitute for Senate Bill~601for the following‘reason[:] If the sign is
posted in acwrdanw with other provisions in the bill, in the Senate
Bill it is enforced by stand-alone, Class A misdemeanor simply for
the fact of walking into that prohii[edj place. In the House version
~prohibi~placeunotlisted,butifyoupostasigntheeffedof
existing law is that you trespass, which is a Ciass B
misdemeanor . . . .The House version ri] intended to give you the
opportunity to inadvertently enter a place if a sign had fallen or the
posted notice was not visible. The Senate version does not contain
such a provision. . . . Under the House provision you would always
have, if you had the sign up, a Class B misdemeanor...under
uiminaltrespass.
....
mf a person posts a sign that says no one. . . is allowed to enter
with a weapon, and you. . . violate that person’s wishes, . . . then
you’ve committed a trespass.
Conference Comm. on S.B. 60,74th Leg., RS. 35-36 (May 7. 1995) (transcript available
through Senate Staff Services Office). The wnference wmmittee voted to delete the
senate provision from the bill. Id. at 37-38.
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HonorableRodney Ellis - Page 9 @M-363)
From the foregoing discussion. we conclude that the legislature deleted the
provision in the senate veraion of Senate Bill 60 regarding “privitely owned prem&
commonfyused by the public”~becausethe legislature preferred for the cuminal trespass
statute. with its @kit notice requirement and separate system of penalties, to apply.
Thus, even though the legislature omitted the senate provisionregarding“privately owned
premises commonly used by the public,”the legislature very clearly intended to permit
private property owners, including business owners and operators, to exclude license
holders carrying wncealed handguns from their premises unda existing law, namely the
aiminal trespass statute in the Penal Code.
In answer to your specific question, although section 32 applies only to the
employ~-employee relationship, Senate Bill 60 does not prevent a business owner or
operator from excluding persons, includingboth employees and nonemployees,carrying
wncded handguns. Under section 30.05 of the Penal Code, any person, inch&g a
license holder, who enters or rem&s on property or in a buildingof ~0th~ canying a
wncealed handgun without effbctive consent to carry and who has had notice that
concealed handguns am prohiied commits a crhnhA offense.’ ,Senate Big 60 is not
intended to and does not permit a license holder to carry a wncealed handgun on the
premises of a private business wntrary to notice as definedby the crhniwl trespass statute
prohibitingthe carrying of a wncealed handgun
We believe that the above diion also addressesyour next question: “Ifthe bill
~prohiiauch,doesitprovideanyspeci6crq&mwtathatthebuaiwss
owner/operator must wmply with in orda to restrict [a ihxnse holder] from canying
concealed [handguns] on [the owner’s or operator’s] pmmises?” We would tbrther note
that although Senate Big 60 does not set forth any specific requirementsthat a busmess
owner or operator must comply within order to restrict a license holder from carrying
wncealed handguns on the premises of the business,we believethat the business owner or
operator must provide notice, as defined by the criminaltrespass statute, that wncealed
handguns‘are prohibited. Given that a business owner or operator should not be able to
~nthataperroniscarryingawn~edhandgufi,makingoralcommunication
impractical, a posted sign would be the most effectivenotice.
We would also stress that section 31. of article 4413(29ee) expressly requires a
business that has a permit or license under chapter 25, 28, 32, or 69 of the Alcoholic
Beverage Code and that derives 51 percent or more of its income from the sale of
alcoholic beverages for on-premises consumption to display a notice at each of its
entrances that it is unlawful to carry a handgun on the premises. See V.T.C.S. art.
413(29ee), 5 31(a), (c). This requirement also applies to a hospital licensed unde-r
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HonorableRodney Eliis - Page 10 @M-363)
chspter 241 of the Health and Safety Code and a nursing home licensedunder ChaptK 242
ofthe Health and Safbty Code. Id. 0 31(b), (c).6
Next YOUask, wfr business OWnK/O~Or can restrict the carrying of concealed
[handgum] on thepr] premises, what [type of) authority do they have to insure
wmpiiice7” In a related question, you ask about the potential tiabiity of a business
owner or operator Vor removing somwne for non-compliance.” As is clear from the
above discussion, a business owner or operator can insure wmpliice through
enforcement of the criminal trespass statute by reporting the trespass to the proper law
enforcement authorities and tiling a criminsl complaint agsinst an aheged trespasser. A
brief discussion of business owners’ and operators’ other possible options and the
potential liabilityinherent in those options follows7
Article 14.01(a) of the Code of Criminsl Procedure permits private citir.ens to
make arrests only if the offense is classed as a felony or as an offense against the public
peaces Criminaltrespassis~rsdthesaclasEAoradassBmisdamanor,sce
Penal Code 5 30.05(d), and thus is not classed as a felony. Nor is crhninaltrespass in and.
of itself a breach of the peace. He&b v. Byrd, 175 S.W.Zd 214. 216-17 vex. 1943)
(Trespassing is not a felony or a breach of the peace. It is not one of those offenses for
which the s&Me definingit gives the peace officer the tight to arrest the offmd~ without
warrant.“). Itmay,howewr,beabreachofthepeacetodisplayahandgunincatain
ckmstances. See, eg., Bell v. Stafe, 256 S.W.2d 108 (Tar Crim. App. 1953) (rude
display of pistol may constitute breach of peace); C&es v. Srate, 256 S.W.2d 855 (Tex.
Grim. App. 1953) (same); see ulso Penal Code Q42.01(10) (providing that a person
wmmits an offense if he or she intentionrdlyor knowingly -displays a tirearm or other
deadly weapon in a public place in a rmumercalculated to alarm”). We further note that it
is a felony to carry a wncealed handgun on any of the premises listed in section 46.03 of
the Penal Code as well as the premises of certain businesses that have a permit to sell
alcoholic‘beveragesand wrrectional facilities, as provided by subsection (g) of section
46.035. For this resson, a business owner or operator is generallynot authorized to arrest
a mere trespasser and may be subject to liiity in tort, psrtiwlsriy an action for f&e
%nate Bill 60 pmkiirs the can@g of a concealalhandgunon suchpruuisssrc$srdless of
w&her n&e is sauslty posted.Theprohibition againslcarryinga conaaledhandgunon suchpruntses
in section46.035(b)of the PenalCodeis not amditionedon the postingofa notice.
ISz oh fnpu page 12-13 and note 10 qarding possible liability in civil acdon in tozl for
maliciousprose&ion
*ticic 14.01 of tie C&e of CriminalProcedureprovidesin pettinentpart: “A pcaa oEicu or
any other person, may, without a warm& amst an offender, when lh6 nffensc is amnilled in his
presenceor tilhin hi view, if the c&me is one classed as a felony or as an offew sgainsl the ppblic
pa.” code Ctim. Fmc~art.14.01(a).
p. 1965
Honorable Rodney Ellis - Page 11 @M-363)
meG9 for attemptingto make a citiwn’s arrest of a mere trespasser. A business o-
or operator on the categories of premises listed in section 46.03, premises of catain
businessesthat have a permit to sell alwholic beverages,or wmctional facilitieswould be
luIthorizadto make a citimfs arrest. See also supra note 1 (discwing recently mued
Penal Code 0 46.11). A business OWIIK or operator might ah be authorized to &e a
citizen’sarrest if the trespasser displaysa handgun.
We fiutha note that a business owner or operator who attempts to physically
remove a trespasser from the premises risks prosecution for criminalassault and habiity in
a civil action in tort for assault Src Penal Code 5 22.01 (setthrgforth elanents of uiminal
assault); Hogenson v. Williams,542 SW&l 456,458 (Tex. Cii. App.-Texarkws 1976,
no writ) (wndua described in Penal Code 0 22.01 also wnstitutes civil tort). Under
section 9.41 of the Penal Code, however, the use of force may be justified to prevent or
twninate a trespass. Section 9.41 provides in patinent part:
A~nnin~possasionofland...isjustifiedinusing
force agsinst another when and IO rhe &pee #re a&r reasonably
believes thefovce is immeciateb neces.ra?yto prevent or terminate
theother’strespassontheland....
Panal Code Q9.41(a) (emphasis added). A business owner or operator who attempts to
Plnlsically remove a tmspwer from the premises must use no more force than is
-*y===v. The degree of force which is reason&y mcessary~vary-
situ&on to situation and will involve issues of f&t. Campere Wliams v. Sate, 279
s.w.2d 335 (bX. cl’h. &S. 19%) (StOE OWIIK’S hdiCfth68 WStOlllK Was bltKfKil&
with other custonws did not justify use of force) wit%Hampfon v. Shmp, 447 S.W.2d 754
(Tex. Civ. App.-Houston [lst Dii.] 1969, writ refd are.) (club OWIIK’Sphysical
temovd of phrimitffrom premises, although an assault, was just&d use of force where
club owns had previouslybarred plaintiff.fromthe premises “to protect and maintain his
business interests”).
You also ask about the potential liability of a business owner or operator “for a
third party who is injured by a @iwnseholder] who has failed to comply”with a notice
prohibiting the carrying of wncealed handguns on the premises. Generally, an ordinary
business owner or operator, as opposed to a proprietor of a restaurant. inn, or similar
establishment, is under a duty to exercise reasonable care for the safety of his or her
i&tees. An occupier of business premises is not an insurer of the s&y of his or her
inviwes. Gumer v. MeGin& 771 S.W.Zd 242, 246 (Tex. Cii. App.-Austin 1989, no
writ). “A business invitor owes a duty to his business invitees to t&e reasonable steps to
Vhe elementsofthetortoffalseameslor imprisonment arcas follows:(1)willfuldetention ofa
penon;(2) againstthe wucnt of the persondetained;and (3) the detentionis withoutauthorityof law.
Moore’sInc. Y.Gorcio.604S.W.2d261,263 (Tot. Civ.AptvCoqmsChristi1980,.writr&d nr.e.)
(c&g cases).
p. 1966
Honorable Rodney Ellis - Page 12 @M-363)
Protect them from intentionalinjuries caused by third parties if he knows or has reason to
know, from what he has observed or from past experience,that criminalacts are likely to
W. dtha gKWdly or at some particular time.” Id. at 246; cprrifo v. h?rs, Ruehc&
&CO.. 663 S.W.2d 60.66 (Tex. Cii. App.-San Antonio 1983, writ refd n.r.e.) (“there is
no duty UpOnthe owners or opaators of a shopping CmtK . . . or upon merchants and
shopkeepers gemAy. whose mode of operation of their premises does not attract or
provide a climate for crime, to guard against criminal acts of a third party, unless they
know . . . that acts are occurringor are about to occur on the premisesthat pose imminent
probability of harm to an invitee; whereupon a duty of reasonable care to protect against
such act arises.“). Thus, a plaintiff in a case against an ordinary business owner or
operator will have to demonstratethat the business owner or operator knew or had reason
to know that criminal acts were likely to occur in order to establish that the business
OWIIK or operator had a duty to take reasonable steps to protect invitees from injuries
caused by third parties. By contrast, the duty of a proprietor of a restaurant, inn, or
similar establishmentgenerally includes the duty to exercise reasonable care to protect
patrons from assaults of third persons while on the premises. Lzrrep v. Jrrckjrrlhe-Ba*,
Inc., 546 S.W.2d 116 (‘I&. Cii. App.-Houston 114thDist.] 1977. writ refd n.r.e.).
Once a duty to protect patrons from the intentional acts of third parties is
established, whether a business owns or operator will be held liable for injuries to
cusbmem inflictedby third persons appears to depend in great part upon the foreseeability
of the assault and whether the business OWIK or operator took reasonable measures to
pmmt the assault. Ctmpre id. (res&rant was negligent for failing to demand that
perpetmton of knife fight leave premises before fight began and to warn plaintiffsof acts
and wndiions of per~araiors before fight began) tilh Gmrpoa v. Sourh~Tex. Beverage
Co., 679 S.W.2d 739 (Tex. Civ. App.-El Paso 1984, no writ) (restaurant did not breach
itsdutyofcaretobusimssimitec~owasshottodeathduringrobbayinrrstaurant
where restaurant had no knowledge of potential danger). We believe it is unlikely that a
trier of fact would conclude that a business owner or operator who posted a sign
prohibitingthe carrying of concealed handguns on the premiseswas liable for injuries to a
patron inflicted by a Iicense holder carrying a concealed handgun. Fii it would be
difficultfor a business OWIIK or operator to foresee an injury indicted by a person carrying
a conceuled handgun. Furthermore, we believe that a trier of fact would likely conclude
that the business owner or operator had taken reasonable steps to prevent the injury by
posting the sign prohibitingthe carrying of wncealed weapons on the premises.
Finally, you ask the following: “In the past courts have held that public officials
acting on the basis of an Attorney General’s Opinion, regardless of whether the opinion
was found to be correct or not, were immunefrom liability. Does this principle extend to
private persons?” This opinion concludes that a business owner or operator may exclude
b~ense holders carrying wncealed handguns from their business premises under criminal
trespass statute. If our construction of the relationship between Senate Bill 60 and the
criminaltrespass statute is found to be incorrect by a wurt, then the person who is alleged
to have trespassed will not be wnvicted. It is ditlicult for us to imagine,however, that the
p. 1967
HonorableRodney Ellis - Page 13 @M-363)
husin~.~ O&K or operator could be found civilly or criminally liable for posting his
premises and reporting alleged violations of the statute to uiminal law enforcement
authorities by ~filinga &minal complaint. Thus, we are reluctant to speculate on What
weight a court might give the fact that a person acted on the basis of this opinion. We do
note, however, that a person could try to use this opinion to demonstrate absence of
malice in a civil suit for maliciousprosecution.lo We express no opinion as to whethexa
tria of fact would find such a showingmeritorious.
SUMMARY
Section 46.03 of the Penal Code, as amended by Senate Bill 60,
prohibits the cariying of a concealed handgun on the physical
premises of a school an education institution, or a passenger
transportation vehicle of a school or an educational institution
whether the school or educational institution is public or private,
unIes.9pmauant to written regu~ons or written authorization of the
diMion; on the premises of a polling place on the day of an
election or Whileearly voting is in progress; in any government court
or otlices utilixd by the court, unless pursuant to written regulations
or written authorizatiionof the wurt; on the ,premisesofarawtra&
or into a secured area of an airport.
Section 46.035 to the Penal Code, as added by Senate Bii 60,
prohibits a person from intentionally, knowingly, or recklessly
carrying a handgun under the authority ofarticle 4413(29ee): on the
prcmisesofabusineuthathasapamitorlicmseissuedunda
chapta 25. 28. 32. or 69 of the Alcoholic Beverage Code, if the
business derives 51 percent or more of its income from the sale of
alcoholic beverages for on-premises wnsumption; on the premises
v&exe a high school, collegiate. or professional sporting event or
interscholastic event is taking place, unless the license holder is a
participant in the event and a handgun is used in the event; on the
premises of a correctional facility; oti the -premises of a hospital
licensed under chapter 241 ,of the Health and S&y Code, or on the
premises of a nursing home licensed under chapter 242 of the Health
and Safety Code, unless the license holder has Written authorization
1%~ e&menuof the ton of malicious p-tion arc as follows:(1) the commencement of a
criminalprosecution a* theplaintier;(2)that the defendantiniliatedor pro?arcdtheproseattion;Q)
thatthep-tion terminatedin favorof the plaintiff,(4) thattheplainlilTwasinnocent(5) thatthere
wasno probablecausefor the proceeding. (6) that the defendantactedwith malice;and (7) dams8Cs.
Browning-Ferris Indusfries, Inc. Y. Lieck, 881 S.W.Zd288 (Tex. 1994)(modifying semndelement);
Me~gcrv.Sebek,892S.W.2d20,41-41&n.10~~.App.-Houston[lstDin.]1994),pcr./orccrl.~lcd,
64 U.S.L.W. 3086(U.S.July26,1995))(No95-169).
p. 1968
Honorable Rodney Ellis - Page 14 @M-363)
of the hospital or nursing home, as appropriate; in an amusement
p* on the premises of a church, synagogue, or 0th~ established
place Of Eli@US worship; or at any meeting of a governmental
entity. While section 46.035 prohiits the carrying of a handgun at
the foregoing places, it does not p&ii the carry& of a handgun in
the driveway, street, sidewalk or walkway, parking lot, parking
garage, or other parking area of a business that sells alcoholic
beverages, a high school collegiate,or professionalsporting event or
interscholastic event, wrrectional facility, hospital or nursing home,
amusement park, or church, synagogue,or other established place or
Senate Bill60 does not preclude private property owners from
excluding license holders carrying concealed handguns from their
premises under the crimimd trespass statute, Penal Code, section
30.05. A license holder who enters or remains on property or in a
building of another carrying a wncealed handgun without effective
consent to carry and who has had notice that wncealed handguns are
prohibited commits a criminaloffense.
DAN MORALES
Attomej Gmerd of Texas
JGRGR VEGA
Fii Assistant Attorney General
SARAH J. SHJRLEY
Chair, Gpiion Committee
Prepared by Mary R Crouter
Assistant Attorney General
p. 1969