Constitutional Carry Comes to Texas
Independence Day weekend seems like a fitting time to write about a new freedom to be enjoyed by Texans—constitutional carry.
The Firearm Carry Act of 2021 becomes effective on September 1, 2021, authorizing most individuals over the age of 21 to carry a handgun without a license. So-called “constitutional” or “permitless” carry may seem like a fringe ideology that only the likes of Texas would fathom, but in truth, Texas became the 21st state to adopt the policy on June 16, 2021, when Governor Greg Abbott signed House Bill 1927 at a ceremony attended by National Rifle Association Chief Executive Officer and Executive Vice President, Wayne LaPierre.
I previously wrote about how convoluted Texas gun laws are and how difficult that makes them to follow; and, unfortunately, the Firearm Carry Act of 2021 makes the situation worse.
For example, the Act does not repeal license-to-carry laws, which means there are two classes of handgun carriers, licensed and unlicensed, and the law treats them differently. Due to the complexity of having two classes of handgun carriers, if a private property owner wishes to prohibit everyone they possibly can from carrying a handgun on their property, they would essentially have to post three different signs: one prohibiting unlicensed carrying, one prohibiting licensed concealed carrying, and one prohibiting licensed open carrying. Also, due to the required language and font size for each of these signs, the area needed to display all three is almost the size of a standard door.
Another issue making the law so complicated is that statutes either directly cross reference one another or indirectly affect one another in a way that would make Rube Goldberg blush.
For example, let’s examine whether a Texas city can prohibit a license holder from concealed carrying or open carrying at an open meeting of the city’s governing body. Let’s start with Government Code Section 411.209, titled “wrongful exclusion of handgun license holder.” As amended by the Act, Section 411.209(a) states, in relevant part, as follows:
[A] state agency or a political subdivision of the state may not take any action, including an action consisting of the provision of notice by a communication described by Section 30.06 or 30.07, Penal Code, that states or implies that a license holder who is 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 prohibited from carrying a handgun on the premises or other place by Section 46.03, Penal Code, or other law.
Okay, so next we go to Section 46.03 of the Penal Code, which states in relevant part:
A person commits an offense if the person intentionally, knowingly, or recklessly possesses or goes with a firearm . . . in the room or rooms where a meeting of a governmental entity is held, if the meeting is an open meeting subject to Chapter 551, Government Code, and if the entity provided notice as required by that chapter.
Bingo! Right? Well, maybe not. To continue with this analysis, you’ll need to know that the language above comes from Section 46.03(a)(14) of the Penal Code—remember that. Section 46.15(b) of the Penal Code states, in relevant part:
Sections 46.02, 46.03(a)(14), and 46.04(a-1) do not apply to a person who . . . is carrying; a license . . . to carry a handgun; and a handgun: in a concealed manner; or in a holster.
So in light of Section 46.15(b), Penal Code, are license holders prohibited from carrying at an open meeting of a governing body under Section 46.03 such that a city may prohibit them from carrying without violating Section 411.209, Government Code? Perhaps a person qualified to do so should ask for an opinion from the attorney general on this.
Arguably, a license holder who is carrying their license and a handgun in a concealed manner or in a holster is a subset of “license holders.” So, if Section 46.03(a)(14) does not apply to all license holders by virtue of Section 46.15, are “license holders . . . prohibited from carrying a handgun on the premises or other place by Section 46.03” for purposes of Section 411.209? Put another way, does the term “license holders” as used in Section 411.209 mean all license holders or does it mean two or more hypothetical license holders?
I haven’t even gotten into the chicken-or-the-egg issue of whether a Penal Code Section 30.06 or 30.07 sign, prohibiting licensed concealed carrying and licensed open carrying, respectively, is necessary to prohibit a license holder from carrying at an open meeting.
If so, this would essentially mean that Section 411.209 of the Government Code only authorizes a city to post a 30.06 or 30.07 sign if it posts a 30.06 or 30.07 sign. Some may argue that this interpretation is prohibited by the canons of statutory construction because it would produce an absurd result.
Also useful in determining the legislative intent of the 46.03-46.15-411.209 paradigm is that the Legislature chose to address Section 46.03(a)(14) by Section 46.15(b)(6), quoted above, rather than including it in the list of sections that do not apply under Section 46.15(p), which states:
Sections 46.03(a)(7), (11), and (13) do not apply if the actor: carries a handgun on the premises or other property, as applicable; holds a license to carry a handgun issued under Subchapter H, Chapter 411, Government Code; and was not given effective notice under Section 30.06 or 30.07 of this code or Section 411.204, Government Code, as applicable.
You see, the most critical difference between subsection (b)(6) and subsection (p) is whether 30.06 or 30.07 notice is given. Clear as mud? Gun law is the new tax law. Good luck out there!
Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our commercial and business litigation practice can be found here.
Byron L. Brown is an attorney with the Randle Law Office in Houston, Texas, where his practice areas include municipal economic development, municipal franchises and commercial lease litigation. He graduated from the University of Texas at San Antonio with a B.A. in Criminal Justice, and earned his J.D. from the University of Houston Law Center.