Untitled Texas Attorney General Opinion ( 2015 )

KEN PAXTON
ATTORNEY GENERAL OF TEXAS
December 21, 2015
The Honorable Brian Birdwell Opinion No. KP-0051
Chair, Committee on Nominations
Texas State Senate Re: Authority of an institution of higher
Post Office Box 12068 education to establish certain rules regarding
Austin, Texas 78701-2068 the carrying of handguns on campus
(RQ-0076-KP)
Dear Senator Birdwell:
You ask six questions related to the authority of a public institution of higher education to
establish certain rules regarding the carrying of handguns on campus. 1 Your questions arise from
the Eighty-fourth Legislature's passage of Senate Bill 11, commonly referred to as the "campus
carry" law, which will take effect August 1, 2016. Request Letter at 1.2 S.B. 11 generally
authorizes individuals licensed to carry concealed handguns to "carry a concealed handgun on or
about the license holder's person while the license holder is on the campus of an institution of
higher education." 2015 Tex. Gen. Laws at 1723 (to be codified at TEX. Gov'T CODE §
411.2031 (b)). In addition, it authorizes the president or other chief executive officer of an
institution of higher education to "establish reasonable rules, regulations, or other provisions
regarding the carrying of concealed handguns by license holders" on campus. Id. (to be codified
at TEX. Gov'T CODE§ 411.2031(d-1)). S.B. 11 also provides that "the president or officer 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." Id.
Your first question asks whether an institution of higher education will violate the
provisions of S.B. 11 if it "designates a meaningful number of classrooms as areas in which the
possession of concealed handguns by Licensees is not allowed." Request Letter at 4. S.B. 11 does
not expressly address the extent to which the carrying of concealed handguns can be regulated
specifically within classrooms. The carrying of concealed handguns in certain types of classrooms
may pose heightened safety concerns such that the regulation of concealed handguns is authorized
under S.B. 11. As an example, some institutions of higher education have grade school classrooms
1
See Letter from Honorable Brian Birdwell, Chair, Senate Comm. on Nominations, to Honorable Ken Paxton,
Tex. Att'y Gen. at (Nov. 18, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request
Letter"). You note that the "authority granted to public Colleges and private colleges are different," and you limit
your request to "deal solely with public Colleges." Id. at 1.
2
See Act of May 31, 2015, 84th Leg., R.S., ch. 438, § 1, 2015 Tex. Gen. Laws 1723 (hereafter "S.B. 11").
The Honorable Brian Birdwell - Page 2 (KP-0051)
on their campuses. Given that the Legislature has made it a criminal offense to carry a firearm on
the physical premises of such a school, rules regulating the carrying of concealed handguns in such
grade school classrooms would be consistent with the Legislature's intent. See TEX. PENAL CODE
§ 46.03(a)(l ). That said, attending or teaching class is the primary reason most individuals are on
campus. If an institution prohibited. the carrying of concealed handguns .in a substantial number
of classrooms, a court would likely conclude that the effect would be to "generally prohibit" license
holders from carrying concealed handguns on campus, contrary to the Legislature's express
req~irements. 3
Also related to regulation of handguns in the classrooms, your second question asks
whether an institution of higher education will violate the provisions of S.B. 11 if it "allows
individual professors to designate their classrooms as areas in which the possession of the
concealed handguns by Licensees is not allowed." Request Letter at 4. While the Legislature has
required that faculty be consulted prior to establishing the rules, S.B. 11 places the authority to
make rules regarding the carrying of concealed handguns on campus with the "president or other
chief executive officer." 2015 Tex. Gen. Laws at 1723 (to be codified at TEX. Gov'T CODE
§ 411.2031 (d-1) ). No provisions within S.B. 11 authorize a president or chief executive officer to
delegate this authority to individual professors, and reading S.B. 11 as a whole suggests that the
Legislature did not intend to allow such piecemeal regulation of handguns on campus. See TGS-
N OPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011) (explaining that courts
construe statutes as a whole rather than in isolation). Institutions of higher education are required
to "widely distribute the rules ... to the institution's students, staff, and faculty, including by
prominently publishing the provisions on the institution's Internet website." 2015 Tex. Gen. Laws
at 1723-74 (to be codified at TEX. Gov'T CODE § 41 l.2031(d-3)). Requiring that the rules be
.distributed to faculty suggests that the Legislature did not intend for the faculty members
themselves to establish those rules. And, as a practical matter, if each faculty member could
establish individualized rules, adequately publishing such rules and providing the notice required
by S.B. 11 would be unmanageable. 4 Thus, a court would likely conclude that S.B. 11 does not
authorize a president or chief executive officer of an institution of higher education to delegate to
3
See Univ. of Tex. atAustin, Campus Carry Policy Working Group Final Report, at 6, Dec. 2015, available
at http://campuscarry.utexas.edu/CCWorkingGroup-FinalReport.pdf ("The primary on-campus activity for most of
our more than 50,000 students is going to class. Excluding handguns from classrooms would have the effect of
generally prohibiting license holders from carrying their handguns and so would violate S.B. 11.").
4
S.B. 11 requires institutions of higher education to "give effective notice under Section 30.06, Penal Code,
with respect to any portion of a premises on which license holders may not carry." 2015 Tex. Gen. Laws at 1723 (to
be codified at TEX. Gov'TCODE § 411.203 l(d-l)). Penal Code section 46.035(a-3) also provides that notwithstanding
subsection (a) or section 46.03(a), "a license holder commits an offense if the license holder intentionally carries a
handgun" in a location on campus where the institution has by rule prohibited the carrying of concealed weapons,
"provided the institution gives effective notice under Section 30.06." 2015 Tex. Gen. Laws at 1726; see TEX. PENAL
CODE § 30.06(b) (providing that notice under section 30.06 may be "oral or written communication"), (c)(3)(B)(iii)
(providing that a sign displayed on the property constitutes notice if it "is displayed in a conspicuous manner clearly
visible to the public").
The Honorable Brian Birdwell - Page 3 (KP-0051)
individual professors the decision as to whether possession of a concealed handgun is allowed in
the individual professor's classroom.
Your third question asks whether an institution of higher education would violate S.B. 11
if it prohibited or effectively prohibited the possession of handguns in "dormitories and/or other
college-owned or leased residential housing." Request Letter at 5. S.B. 11 expressly prohibits an
institution of higher education from adopting any rule, regulation, or other provision prohibiting
license holders from carrying handguns on campus, except in limited circumstances. 2015 Tex.
Gen. Laws at 1723 (to be codified at TEX. Gov'T CODE§ 41 l.2031(c)). One of those exceptions
is found in subsection (d), which provides that "[a]n institution of higher education ... may
establish rules, regulations, or other provisions concerning the storage of handguns in dormitories
or other residential facilities ... located on the campus of the institution." 2015 Tex. Gen. Laws
at 1723 (to be codified at TEX. Gov'T CODE § 411.2031 (d) ). This provision allows an institution
to establish reasonable requirements related to the location and manner in which handguns are
stored within its residential facilities on campus. What is reasonable in any given circumstance
will involve questions of fact. 5 If an institution placed a prohibition on handguns in the
institution's residential facilities, however, it would effectively prohibit license holders in those
facilities from carrying concealed handguns on campus, in violation of S.B. 11. 6 This is because
"rules, regulations, or other provisions concerning the storage of handguns in dormitories"
presupposes their presence in dormitories. 2015 Tex. Gen. Laws at 1723 (to be codified at TEX.
Gov'T CODE § 41 l.203l(d)) (emphasis added); see BLACK'S LAW DICTIONARY (10th ed. 2014)
(defining "storage" to mean "[t]he act of putting something away for ,future use; esp., the keeping
or plaCing of articles in a place of safekeeping, such as a warehouse or depository").
Your fourth question asks whether an institution of higher education would violate S.B. 11
if it temporarily prohibited the carrying of handguns by license holders on either "all or most of
the campus" or, alternatively, "on certain portions of the campus." Request Letter at 5. The
distribution and notice requirements discussed above suggest that the Legislature did not intend to
allow frequent, temporary restrictions on the carrying of concealed handguns. S.B. 11 does,
however, allow a president or officer to "amend the provisions as necessary for campus safety,"
and to consider "specific safety considerations, and the uniqueness of the campus environment."
. 2015 Tex. Gen. Laws at 1723 (to be codified at TEX. Gov'T CODE§ 411.203 l(d-1)). Pursuant to
this language, a court could conclude that occasional, reasonable temporary restrictions that are
prominently posted on the institution's website clearly notify license holders of the restrictions,
and do not amount to a general prohibition on the carrying of concealed handguns on campus.
Your fifth question asks whether a concealed handgun licensee has "standing to bring an
action" if the licensee reasonably believes that the institution "has exceeded its authority ... , or
that it has taken regulatory action without meeting the procedural requirements" under S.B. 11.
Request Letter at 5. While sovereign immunity protects the state from lawsuits for money
5
See Campus Carry Policy Working Group Final Report, supra note 3, at 21 (establishing restrictions for gun
safes used by license holders).
6See id. at 20-21 ("With three exceptions, the concealed carry of handguns should be prohibited in all on-
campus residence halls.").
The Honorable Brian Birdwell - Page 4 (KP-0051)
damages, "suits to require state officials to comply with statutory or constitutional provisions are
not prohibited by sovereign immunity." City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex.
2009). "Private parties may seek declaratory relief against state officials who allegedly act without
legal or statutory authority." Tex. Nat. Res. Conservation Comm 'n v. IT-Davy, 74 S.W.3d 849,
855 (Tex. 2002). Thus, an individual whose legal rights have been infringed due to a president or
chief executive officer of an institution adopting regulations that exceed the authority granted in
S.B. 11 would have standing to bring an ultra vires cause of action against the president or chief
executive officer. See Heinrich, 284 S.W.3d at 372; see also TEX. C1v. PRAC. & REM. CODE
§ 37.004(b) (providing that an individual whose legal rights are affected by a statute "may have
determined any question of construction" of tQ.at statute). The remedy for such action would be
limited to injunctive relief. See Heinrich, 284 S.W.3d at 376 ("[A] claimant who successfully
proves an ultra vires claim is entitled to prospective injunctive relief.").
Your final question asks whether the offense found in subsection 46.035(a-3) of the Penal
Code would apply to a licensee carrying a concealed handgun if an institution of higher education
has failed to comply with S.B. 11. Request Letter at 5. S.B. 11 amended section 46.035 of the
Penal Code to add subsection (a-3), which will become effective August 1, 2016. 2015 Tex. Gen.
Laws at 1726. At that time, subsection 46.035(a-3) will provide:
Notwithstanding Subsection (a) or Section 46.03(a), a license holder
commits an offense if the license holder intentionally carries a
concealed handgun on a portion of a premises located on the campus
of an institution of higher education in this state on which the
carrying of a concealed handgun is prohibited by rules, regulations,
or other provisions established under Section 411.2031 (d-1 ),
Government Code, provided the institution gives effective notice
under Section 30.06 with respect to that portion.
Id. (to be codified at TEX. PENAL CODE § 46.035(a-3)). If a court concludes that the rules
established by an institution of higher education with regard to where concealed handguns may be
carried are not authorized by statute, "it would follow that any further enforcement of such
provisions would be ultra vires." Tex. Dep 't ofState Health Servs. v. Balquinta, 429 S.W.3d 726,
751 (Tex. App.-Austin 2014, no pet.). 7
7
You do not ask whether institutions of higher education may establish policies regarding the manner in
which license holders carry on campus, such as holster requirements or policies regarding the presence of a chambered
round. See Campus Carry Policy Working Group Final Report, supra note 3 at 16 (preventing license holders from
carrying a gun with a chambered round, requiring license holders to carry in a holster that completely covers the
trigger and trigger guard area, and requiring sufficient tension on the handgun to retain it in the holster when subjected
to unexpected jostling). Analyzing such restrictions would involve whether S.B. 11 delegated to public institutions
of higher education the ability to restrict the manner in which license holders carry and whether state law restrictions
on the manner of carrying preempts the field of such regulations. See, e.g., S. Crushed Concrete, L.L.C. v. City of
Houston, 398 S.W.3d 676, 678 (Tex. 2013) (recognizing that state law may preempt local ordinances).
The Honorable Brian Birdwell - Page 5 (KP-0051)
SUMMARY
A court would likely conclude that a public institution of
higher education exceeds the authority granted under Senate Bill 11
if it prohibits the carrying of concealed handguns in a substantial
number of classrooms or delegates to individual professors the
decision as to whether possession of a concealed handgun is allowed
in the individual professor's classroom.
If a public institution of higher education placed a
prohibition on handguns in the institution's campus residential
facilities, it would effectively prohibit license holders in those
facilities from carrying concealed handguns on campus, in violation
of the express terms of Senate Bill 11.
A court could conclude that occasional, reasonable,
temporary restrictions that are prominently posted on the
institution's website clearly notify license holders and do not
amount to a general prohibition on the carrying of concealed
handguns on campus.
An individual whose legal rights have been infringed due
to a president or chief executive officer of a public institution
adopting regulations that exceed the authority granted in Senate Bill
11 would likely have standing to bring an ultra vires cause of action
against the president or chief executive officer.
If a court concludes that the rules established by an
institution of higher education with regard to where concealed
handguns may be carried are not authorized by statute, it would
follow that any further enforcement of such provisions would be
ultra vires.
Very truly yours,
KEN PAXTON
Attorney General of Texas
The Honorable Brian Birdwell - Page 6 (KP-0051)
CHARLES E. ROY
First Assistant Attorney General
BRANTLEY STARR
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee