TEXAS CARRY’S REVIEW OF TEXAS ATTORNEY GENERAL OPINION KP-0108
You may view the full text of the opinion here.
As is our practice, we wanted to ensure our members had the best information possible while understanding all the risk associated with the issue. The AG released his opinion on non-profits that lease government property (public property) posting 30.06 or 30.07 signs. His opinion fell in line with what our position has been all along. You can read the entire opinion at the link provided. We will for the sake of time give the highlights, and the necessary overview. We will also address a piece no one has discussed or considered. It is important to note that while this opinion was specifically about non-profits, we believe it applies to any entity that rents or leases public property. The fact this specific opinion revolved around non-profit is of no consequence in the penal code realm.
To begin with we will address whether or not and entity leasing government property CAN post 06/07 signs.
The AG opinioned; “Section 411.209 of the Government Code creates a civil penalty for a state agency or a political subdivision that provides notice that a license holder carrying a handgun is prohibited on property owned by the governmental entity unless carrying a handgun in such locations is expressly prohibited under the Penal Code. Section 411.209 applies only to a state agency or political subdivision of the State and does not address whether a private entity, including an independent nonprofit entity, may provide notice to license holders that the carrying of handguns is prohibited in the private entity's offices. As long as the state agency or political subdivision leasing the property to the private entity has no control over the decision to post such notice, the state agency or political subdivision lessor would not be the entity responsible for the posting and would therefore not be subject to a civil penalty under section 411.209.”
To answer the question is quite easy. They are not prohibited from posting. It is not illegal for them to post 06/07 signs if an entity is leasing governmental property. There is simply no provision in law prohibiting them from doing so. We will use an example near and dear to the gun community. Gun shows are private entities that lease government property all over the state. We almost always see such signs posted at the gun shows. Yes, they CAN post 06/07 signs according to the AG’s opinion that corresponds with Texas Carry’s opinion. There is simply nothing to prevent them from doing so. It is also important to note that there is no legal recourse for the citizen if they do. This would apply to concerts, craft shows, civic center events and so on. Any entity other than a governmental entity that is leasing public property can post 06/07. It is simply not prohibited by 411.209 or any other code.
Do the signs carry force of law?
This is now where it will get interesting. While they can post, an 06/07 sign posted on public property carries no legal weight for LTC holders. Yes, you are reading that correctly. They can post till the cows come home, and it literally carries no force of law behind it. Here is why according to the AG opinion and the penal code:
The AG opinioned; “Section 411.209 of the Government Code creates a civil penalty for a state agency or a political subdivision that provides notice that a license holder carrying a handgun is prohibited on property owned by the governmental entity unless carrying a handgun in such locations is expressly prohibited under the Penal Code. Section 411.209 applies only to a state agency or political subdivision of the State and does not address whether a private entity, including an independent nonprofit entity, may provide notice to license holders that the carrying of handguns is prohibited in the private entity's offices. As long as the state agency or political subdivision leasing the property to the private entity has no control over the decision to post such notice, the state agency or political subdivision lessor would not be the entity responsible for the posting and would therefore not be subject to a civil penalty under section 411.209.”
“When possible, courts will discern legislative intent from the plain meaning of the words chosen, and only when words are ambiguous will courts "resort to rules of construction or extrinsic aids." Entergy Gulf States, Inc., 282 S.W.3d 433, 437 (Tex. 2009). The plain language of subsections 30.06(e) and 30.07(e) make an exception if the property on which the license holder carries a gun "is owned or leased by a governmental entity." TEX. PENAL CODE§§ 30.06(e), .07(e). These statutes make no exception to that exception for property owned by a governmental entity but leased to a private entity, and to conclude that carrying a handgun on such property is prohibited would therefore require reading language into the statute beyond what the Legislature included. See Entergy Gulf States, Inc., 282 S.W.3d at 443 (noting that courts "refrain from rewriting text that lawmakers chose"). Thus, a court would likely conclude that a license holder carrying a handgun on property that is not a premises or other place from which the license holder is prohibited from carrying under sections 46.03 or 46.035 of the Penal Code and that is owned by a governmental entity but leased to a private entity is excepted from the offenses in 30.06(a) and 30.07(a).”
The penal codes 30.06 (e) and 30.07 (e) state the same thing in very plain English. It is an exception to the application of this section that the property on which the license holder openly or conceal carries the handgun 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.
Putting is simply, an 06/07 sign posted on public property, regardless of who posts it, does not apply to license holders unless on the list of prohibited places found in 46.03 or 46.035 according to the AG’s opinion and ours.
Now we want to address one other code that was not considered in the opinion or other discussion we have seen. Texas penal code 30.05 (Criminal Trespass). We reached out to Texas Law Shield to discuss this in great detail, and we both came to the same conclusion. 30.05 can’t apply to a license holder if the sole reason for the exclusion from the property is because you are carrying with a license. We bring this up because we can promise you this is where law enforcement will try and go.
30.05(f) It is a defense to prosecution under this section that:
(1) the basis on which entry on the property or land or in the building was forbidden is that entry with a handgun was forbidden; and
(2) the person was carrying:
(A) a license issued under Subchapter H, Chapter 411, Government Code, to carry a handgun; and
(B) a handgun:
(i) in a concealed manner; or
(ii) in a shoulder or belt holster.
It is important to note that this is a defense to prosecution, so please understand the implications of that. This takes us into our closing comments. While 06/07 signs in the AG’s opinion and the clear reading of the law do NOT apply to license holders, there are going to be problems. We absolutely foresee, and want to warn our members of the risk that are almost guaranteed. We will use the example of the Houston Gun show at the George R. Brown Convention Center. When going here there are have law enforcement officers that work these events. They also post signs, and law enforcement has prevented people form coming in because they were carrying. While they can post, the signs simply carry no force of law. However, understand that it is almost certain that the leasing entity will get law enforcement involved. When this happens you will have choices to make.
Options:
1) Just go ahead and leave to put your handgun up secure or leave and not come back.
2) Dig in and refuse to leave public property where you have a lawful right to be.
Option two does a couple of things. One, it can get you arrested. So make sure you are prepared to deal with that. Beat the rap but not the ride is an appropriate statement here. However, it also does something else. Once law enforcement engages you, and refuses to let you into the public property they have now violated 411.209. Now a governmental entity is prohibiting a license holder from carrying onto public property that is not prohibited by 46.03 or 46.035. They have now broken the law, and you have a viable complaint against them. Proof of course, would be needed and you should record any and all such encounters. Also, whichever option you take please ensure you always remain professional and respectful. There is no need to become belligerent or rude. That does nothing for you or the cause. Be polite! Whichever option you take, try and educate as much as possible. We fully expect problems with some law enforcement agencies regarding this, so be prepared to deal with it.
It is important to note here that Texas Carry absolutely supports private property rights. If businesses and non-profits want to exercise private property rights, then use private property. Do not use public property. It is a fairly easy solution, and one that is solely up to them. If they lease public property, then they accept the fact we can carry there and they can’t stop that. If they can’t live with that then find a private venue.
Terry Holcomb
Executive Director