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Balancing Freedoms: Texas Open Carry Gun Law and Public Meetings

Balancing Freedoms: Texas Open Carry Gun Law and Public Meetings

While the First and Second Amendments provide our constitutional rights to free speech and to bear arms, there is legal leeway for a Texas municipality to bar the open carry of handguns in a public meeting of city council. As of January 1, 2016, Texas gun laws provide concealed handgun license owners to openly carry, but a local government may still prohibit handguns, or firearms in general, from public places like City Hall. To do so, however, a city should invoke another law, under Chapter 46 of the Texas Penal Code, to keep open carry out of a public meeting session. The upshot of how cities can bar guns from meetings is summarized here:

(1) State law prohibits all firearms on the premises of government courts and offices used by government courts.

(2) Cities can prevent everyone except licensed handgun carriers from bringing firearms into all public buildings with a simple “No Firearms Allowed” sign.

(3) Cities can prevent licensed handgun carriers from carrying into meetings subject to the Open Meetings Act (but not other public areas) by posting a so-called “30.06/30.07” sign.

Texas is perceived as a gun-friendly state because its laws largely provide for gun rights. As well, the open carry law, effective January 1, 2016, takes that a step further. In general, Texas does not restrict the possession of firearms beyond the scope of federal law. There are no restrictions on the possession of “long guns” (rifles, shotguns, etc.), and anyone who is 18 or older and not a felon may possess a handgun (and, upon passing an instant background check, buy a handgun). The Texas Constitution gives the state legislature the exclusive power to “regulate the wearing of arms, with a view to prevent crime,” and Texas Penal Code § 1.08 prohibits local jurisdictions from enacting or enforcing any laws that conflict with state statutes; therefore, any city or county ordinances regarding the possession and carrying of weapons are preempted and invalid.

On January 1, 2016, HB 910 became law, eliminating the “concealed” requirement for the carrying of handguns, making Texas an “open carry” state, and anyone who has a license for a concealed handgun may carry it either concealed or visible; however, this change will not affect the prohibitions already in place that prevent the possession of firearms/handguns in certain places and situations.

Most of the laws restricting the possession of firearms are found in the Texas Penal Code.

Chapter 30 of the Penal Code is the criminal trespass statute; Section 30.05 makes it a crime for a person to enter the property of another if the person has notice that entry is forbidden. The Texas Municipal League interprets this provision to mean that a simple “No Firearms Allowed” sign would be effective to prohibit any non-licensed person from carrying a firearm into a public building. However, the statute specifically states that it does not apply to licensed handgun carriers (unless a specific prohibition is listed in Chapter 46).

Chapter 46 of the Texas Penal Code covers weapons in general and firearms in particular. Sections 46.02 and 46.03 provide several restrictions on the possession of handguns and firearms, but subsequent sections of the code provide exceptions or carve-outs to 46.02 and 46.03.

Section 46.02 makes it a crime to possess a handgun unless the person is on his own premises or premises under his control, or inside of or directly en route to a motor vehicle or watercraft that is owned or controlled by the person.

Section 46.03 makes it a crime to possess any firearm at any of the following locations: schools, voting places, government courts, racetracks, airports, or within 1,000 feet of a place of execution.

More specifically, section 46.03(a)(3) prohibits the possession of any prohibited weapon “on the premises of any government court or offices utilized by the court, unless pursuant to written regulations or written authorization of the court.”

If the city were to post a 30.06 sign, it would have to:

(1)  Include the following language, verbatim, in both English and Spanish (the following text is effective 1/1/16):

“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.”

“Conforme a la Sección 30.06 , Código Penal (prevaricación por titular de la licencia con una pistola oculta), una persona con licencia bajo el Subcapítulo H, Capítulo 411, Código de Gobierno (ley de licencias arma de fuego), no puede entrar en esta propiedad con una pistola oculta.” (via Google translate)

(2)  The sign letters must be in contrasting colors in block letters at least one inch high; and

(3)  The sign must be displayed conspicuously and clearly visible to the public

Here is Senate Bill No. 346, making changes to many Texas statutes and adding a new Texas Penal Code 30.07, which requires the posting of a sign for all businesses wishing to exclude “open carry” from their premises.

The requirements in the new Section 30.07 are substantially similar, but not identical, to those in section 30.06. A “section 30.07 sign” (or the written communication) must:

(1) Include the following language, verbatim, in both English and Spanish:

“Pursuant to Section 30.07, Penal Code (trespass by license holder with an openly carried handgun), a person licensed under Subchapter H, Chapter 411, Government Code (handgun licensing law), may not enter this property with a handgun that is carried openly.”

“Conforme a la Sección 30.07, Código Penal (prevaricación por titular de la licencia con una arma de mano realizado abiertamente), una persona con licencia bajo el Subcapítulo H, Capítulo 411, Código de Gobierno (ley de licencias arma de fuego), no puede entrar en esta propiedad con un arma de fuego que se realiza abiertamente.” (via Google translate)

(2)  The sign letters must be in contrasting colors in block letters at least one inch high; and

(3)  The sign must be displayed conspicuously and clearly visible to the public at each entrance to the property.

The slight differences in the two sections raises the question: if the city wants to prohibit all handguns, whether concealed or openly carried, does it have to post both signs? The answer is unclear, but to be certain it is in compliance, the city would need to post the 30.06 sign at all “main” entrances and also post the 30.07 sign at every entrance.

Incidentally, vendors are already selling signs that conform to the new law:

Cities can ban licensed handgun carriers from carrying in places where Open Meetings Acts meetings occur with the posting of “30.06/30.07” signsNote that there are some exceptions to these possible prohibitions. Neither Section 46.02 nor 46.03 applies to a variety of people, such as peace officers, judicial officers, bailiffs, etc.

In addition, Section 46.02 does not apply to a number of other people and situations, most notably if the person is licensed to carry a concealed handgun. Therefore, a licensed handgun owner can carry a concealed handgun anywhere in Texas, except (1) those places listed in Section 46.03 (e.g., government courts), and (2) as provided by Section 46.035, under any of the following conditions:

• the handgun must be concealed or carried in a belt or shoulder holster;

• the handgun may not be carried on any of the following places:

• a place that earns more than 51 percent of its income from on-premises consumption of alcohol;

• anywhere a high school, college, or pro sporting event is being held;

• a correctional facility;

• a hospital or nursing home;

• an amusement park; or

• a church, synagogue or other house of worship;

• the handgun may not be carried at any meeting of a governmental entity subject to the Open Meetings Act;

• the handgun may not be carried by a person who is intoxicated.

Therefore, it is also an offense to carry a handgun on city hall premises (as a place where Open Meetings Act meetings occur) under Section 46.035. However, Texas Penal Code Section 46.035(i) provides that the prohibition on concealed carry only applies if the city has given effective notice under Section 30.06 (and the new Section 30.07). That section requires that to prohibit concealed carry in a room where Open Meetings occur, a city must either:

(1) Give notice, by oral or written communication from a person in apparent authority, that concealed/openly carried handguns are prohibited; or

(2) Post a sign (the so-called “30.06/30.07 sign”) at the entrance to the premises (see above).

Please note that Section 30.06 (and the new Section 30.07) specifically state that a governmental entity cannot prohibit a licensed handgun carrier from carrying on public property unless that location is specifically referenced in the statute. So, for example, can a licensed person carry a handgun in the portions of City Hall that are not government courts, offices used by government courts, or rooms where Open Meetings occur? Technically, yes; however, it seems likely that the posting of 30.06/30.07 signs will deter most handgun carriers, whether licensed or unlicensed.

Summary:

(1) State law bans all firearms from government courts and offices used by government courts.

(2) Cities can ban non-licensed persons from carrying firearms in public buildings with a “No Firearms Allowed” sign.

(3) Cities can ban licensed handgun carriers from carrying in places where Open Meetings Acts meetings occur with the posting of “30.06/30.07” signs (but not elsewhere, unless the statute says so).

Drew Shirley is a Houston attorney with experience in tort and business litigation and business and real estate transactions. Shirley graduated cum laude from Duke University, then received two advanced degrees – a master’s in journalism and a law degree – from the University of Texas at Austin. He joined the Randle Law Office in 2015.

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