Weekly Case Summaries: December 22, 2015

Office of the Attorney General

Letter from the 51st Judicial District Attorney

KP-0047                12/21/15

Question:

To what extent may firearms be excluded from buildings that contain courts and other county offices?

Answer:

Firearms may be excluded only from public buildings specifically mentioned in Penal Code §§46.03 and 46.035. They may not be wholly excluded from buildings that contain courts if there are other government offices in the building, but the exclusion is not limited solely to courtrooms. The government court in question or local government authority may determine specifically which courtrooms and offices are essential to the operation of the court, and from which firearms may be excluded. Read.

Commentary:

The OAG left a lump of coal and some chocolate candies in your stocking with this mixed bag. The opinion’s interpretation of “premises” is very limited, but remember that it does so in the specific context of guaranteeing what will protect a governmental body from being civilly sued—nothing more. It also contains some wiggle room by deferring to the local governing body the initial determination of what offices in its courthouse are essential to court operations (and therefore off-limits to licensed handguns). However, read our notes on the following opinions for limitations on that grant of discretion.

Letter from the Hays County Criminal District Attorney

KP-0049                12/21/15

Question:

Would §411.209 of the Government Code be implicated by a government entity that attempted to prohibit handguns from a public building where handguns may be allowed?

Answer:

Pursuant to KP-0047, handguns may not be prohibited from public buildings, only from courtrooms and offices essential to court operations. If a local government improperly attempted to ban handguns from an entire building or another place where they may lawfully be carried, it would implicate Government Code §411.209. Additionally, any person licensed to carry a gun does not commit a crime if he or she refuses to relinquish the firearm or exit the building if the local government is not properly authorized to ban handguns in that space. Read.

Commentary:

This is where the rubber meets the road. A statute (§411.209) that, by its express terms and its legislative history, is limited to enforcing improper concealed carry signage is being interpreted by OAG to allow it to sue a governmental body that posts general, voluntary signage regarding all weapons prohibited by Penal Code §46.03(a)(3) (general ban on weapons in courthouse premises). Interesting. One solution might be to not post any signage and then arrest people for carrying a firearm in the courthouse under §46.03(a)(3) (which does not require any trespass-style notice). That doesn’t seem to be consistent with the Christmas spirit, but it might keep you from being successfully sued by OAG (their analysis notwithstanding), which is the subject of these opinion requests to begin with.

Letter from the Chair of the Committee on Criminal Justice

KP-0050                12/21/15

Question:

May handguns be prohibited from the grounds of a school, including parking lots, driveways, sidewalks, and walkways?

Answer:

Yes, Penal Code §46.03, which prohibits firearms at schools, is not limited to only school buildings but also may include “any grounds or building” where a school activity is being conducted. These grounds may include a public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area if a school activity is being conducted there. Read.

Commentary:

This is consistent with what the Texas Association of School Boards (TASB) and others have long understood the law to be with regard to licensed concealed carry, and the injection of open carry into this equation on January 1, 2016, does not change the result. Make sure your ISD and school resource officers know that.

Letter from the Chair of the Committee on Nominations

KP-0051                12/21/15

Question:

What is the authority of an institution of higher learning to establish rules regarding the carrying of handguns on campus?

Answer:

Senate Bill 11 authorizes the president or other chief executive officer of an institution of higher education to “establish reasonable rules, regulations, or other provisions regarding carrying concealed handguns by license holders” on campus; however, he or she may not “establish provisions that generally prohibit or have the effect of generally prohibiting license holders from carrying concealed handguns on the campus of the institution.” The institution of higher learning would exceed its authority if it prohibited guns from a substantial number of classrooms or allowed individual professors to choose whether guns would be allowed in their classes. Additionally, handguns may not be prohibited in campus residential facilities. And while public colleges and universities are protected by sovereign immunity, an ultra vires action may be brought against a university president to require compliance with the new law. Read.

Commentary:

Remember our discussion of KP-0047, above, and how we cautioned you that the discretion to denote other “essential” offices was not unlimited? This campus carry opinion is a good lesson to be wary of exceptions that appear to swallow the rule. If your commissioners want to go down that route of designating “essential” offices on an office-by-office basis, make sure they know that their discretion in making that determination is not necessarily the final say.

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