Untitled Texas Attorney General Opinion ( 2017 )


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  •                                                KEN PAXTON
    ATTORNEY GENERAL OF TEXAS
    December 21, 2017
    The Honorable Dan Patrick                                  Opinion No. KP-0176
    Lieutenant Governor of Texas
    Post Office Box 12068                                      Re: Whether handgun license holders may
    Austin, Texas 78711-2068                                   carry handguns on the premises of a church that
    does not post signs excluding handguns and
    whether churches are exempt from the private
    security fees charged to private institutions
    (RQ-0196-KP)
    Dear Governor Patrick:
    Due to a tragic church shooting that recently occurred in Sutherland Springs, Texas, you
    ask two questions related to church security. 1 You first ask whether handgun license holders may
    "carry their handguns on the premises of a church that does not post signs excluding handguns."
    Request Letter at 1.
    Subsection 46.035(b) of the Penal Code provides:
    A license holder commits an offense if the license holder
    intentionally, knowingly, or recklessly carries a handgun under the
    authority of Subchapter H, Chapter 411, Government Code,
    regardless of whether the handgun is concealed or carried in a
    shoulder or belt holster, on or about the license holder's person:
    *    * *        *
    (6) on the premises of a church, synagogue, or other established
    place of religious worship ....
    TEX. PENAL CODE§ 46.035(b)(6). For purposes of this section, the Legislature defined "premises"
    as "a building or portion of a building." Id. § 46.035(±)(3). Read in isolation, this subsection
    seems to suggest that Texas law prohibits a license holder from carrying a handgun on the premises
    of a church. However, courts read statutes in context, not in isolation. Cadena Comercial USA
    Corp. v. Tex. Alcoholic Bev. Comm'n, 
    518 S.W.3d 318
    , 326 (Tex. 2017) ("These words and
    1See Letter from Honorable Dan Patrick, Lt. Gov. of Tex., to Honorable Ken Paxton, Tex. Att'y Gen. (Dec. I,
    2017), https://www.texasattomeygeneral.gov/opinion/requests-for-opinions-rqs ("Request Letter").
    The Honorable Dan Patrick - Page 2              (KP-0176)
    phrases are not to be considered in isolation, but rather in the context of the statute as a whole.").
    Subsection 46.035(i) further provides:
    Subsections (b)(4), (b)(5), (b)(6), and (c) do not apply if the actor
    was not given effective notice under Section 30.06 or 30.07.
    TEX. PENAL CODE § 46.035(i) (emphases added). Sections 30.06 and 30.07 make it a criminal
    offense for a license holder to carry a concealed handgun and openly carry a handgun, respectively,
    on property of another without consent when the license holder received notice forbidding carrying
    a handgun on the property. Id. §§ 30.06(a), 30.07(a).
    Those sections also establish methods for providing notice to prohibit a license holder from
    carrying a handgun onto the property. A "person receives notice if the owner of the property or
    someone with apparent authority to act for the owner provides notice to the person by oral or
    written communication." Id. §§ 30.06(b), 30.07(b). Section 30.06 describes how to provide notice
    by written communication to forbid a license holder with a concealed handgun:
    (A) a card or other document on which is written language identical to
    the following: "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"; or
    (B)    a sign posted on the property that:
    (i)   includes the language described by Paragraph (A) in both
    English and Spanish;
    (ii) appears in contrasting colors with block letters at least one
    inch in height; and
    (iii) is displayed in a conspicuous manner clearly visible to the
    public.
    Id. § 30.06(c)(3). Section 30.07 similarly establishes how t0 provide a notice by "written
    communication" for purposes of prohibiting a license holder with an openly carried handgun. Id.
    § 30.07(c)(3). Construed together, these Penal Code provisions prohibit a license holder from
    carrying a handgun onto the premises of a church only when the actor received effective notice
    through oral or written communication. Id. §§ 30.06-.07, 46.035(i).
    In effect, the Legislature provided churches the same option as most other private entities
    to decide whether to allow the carrying of handguns onto the premises of church-owned property.
    If a church decides to exclude the concealed or open carrying of handguns on the premises of
    church property, it may provide the requisite notice, thereby making it an offense for a license
    holder to carry a handgun on those premises. See id. §§ 30.06(a), 30.07(a), 46.035(b)(6).
    The Honorable Dan Patrick - Page 3                      (KP-0176)
    However, churches may instead decide not to provide notice and to allow the carrying of handguns
    on their premises. See id. § 46.035(i). Unless a church provides effective oral or written notice
    prohibiting the carrying of handguns on its property, a license holder may carry a handgun onto
    the premises of church property as the law allows. Id.
    Many churches in Texas conduct their services and activities on property leased from other
    private or governmental entities. Whether license holders may carry handguns on the premises of
    a church utilizing property of another entity may depend on the contractual arrangement between
    the church and the property owner or the legal limitations placed on the governmental entity
    owning the property. See id. § 30.06(e) (creating an exception to the offense of trespass by a
    license holder with a concealed handgun when property "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"). As an example, subsection 46.03(a)(l) of the Penal
    Code generally prohibits the carrying of a firearm "on the physical premises of a school or
    educational institution." Id.§ 46.03(a)(l). 2 An educational institution leasing property to another
    could by "written regulations or written authorization" allow persons to possess a firearm on its
    property. 3 Id. § 46.03(a)(l)(A). However, an entity leasing or otherwise utilizing the property of
    the educational institution does not have separate authority to allow the carrying of handguns on
    the property. See id. Thus, to the extent a church operates on property other than its own, it should
    consult with the owner of the property to determine the extent to which it may prohibit or allow
    the carrying of handguns on the premises of such property.
    You also ask whether the Legislature waived "the private security fee for churches that
    Texas charges to private institutions." Request Letter at 1. The Private Security Act (the "Act")
    governs the licensing and registration of, among others, private security officers and the entities
    that employ or contract with those officers. TEX. 0cc. CODE§ 1702.001 (labeling chapter 1702
    as the "Private Security Act"); id.§ l 702.004(a) ("General Scope of Regulation"). The Act defines
    "security officer" as an individual "(1) employed by a security services contractor or the security
    department of a private business; and (2) employed to perform the duties of an alarm systems
    response runner who responds to the first signal of entry, a security guard, security watchman,
    security patrolman, armored car guard, or courier guard." Id. § 1702.222. An individual may not
    accept employment as a security officer carrying a firearm unless the individual holds a security
    officer commission. Id. § 1702.161.
    The Act also requires any private business that employs a commissioned security officer
    to first obtain a letter of authority from the Texas Private Security Board. Id. § 1702.181. The fee
    2The general prohibition against carrying firearms on school premises would extend to open-enrollment
    charter schools as well. See TEX. EDUC. CODE § 12.103(a) ("an open-enrollment charter school is subject to federal
    and state laws and rules governing public schools").
    3
    Due to the general prohibition of firearms on the premises of a school or educational institution under section
    46.03(a)(l), license holders will likely presume that they do not have authority to carry handguns on such premises,
    regardless of the lack of notice prohibiting concealed or open carry. See TEX. PENAL CODE § 46.03(a)( I). If an
    educational institution provides written regulations or written authorization to allow a church to permit carrying
    handguns on its property pursuant to subsection 46.03(a)(l)(A), and the church desires to do so, the church should
    affirmatively communicate that authority to its congregants.
    The Honorable Dan Patrick - Page 4                   (KP-0176)
    for obtaining an original letter of authority is $400. 4 By statute, a letter of authority "expires on
    the first anniversary of the date of issuance," and the fee for renewing the letter is $225. Id.
    § 1702.301 (g). 5 In the past, questions arose about whether these regulations and fees applied to
    churches providing security.
    However, during the past session, the Legislature passed Senate Bill 2065, enacting section
    1702.333 of the Occupations Code. 6 That provision provides that the Act "does not apply to a
    person who is providing volunteer security services on the premises of a church, synagogue, or
    other established place of religious worship." Id. § 1702.333(b). The Act defines "person" to
    include not only an "individual," but also a "nonprofit organization, institution, or similar entity."
    Thus, a church and its volunteers would therefore qualify as persons for purposes of this section.
    Id. § 1702.002(16). Additionally, the statute defines "volunteer security servic~s" as services
    regulated under the Private Security Act and "provided without compensation or remuneration."
    Id. § 1702.333(a). To qualify for the exemption, the person providing volunteer security services /
    "may not wear a uniform or badge that: (1) contains the word 'security'; or (2) gives the person
    the appearance of being a peace officer, personal protection officer, or security officer." Id.
    § 1702.333(c). Thus, the regulations of the Act, including the fees required thereunder, do not
    apply to Texas churches when providing volunteer security services on their premises consistent
    with the requirements of section 1702.333.
    4Private Security Fee Schedule, Tex. Dep't of Pub. Safety Regulatory Servs. Div., available at
    www.dps.texas.gov/rsd/psb/docs/FeeSchedule.pdf.
    5
    See id.
    6   Act of May 28, 2017, 85th Leg., R.S., ch. 967, § 11.001, 
    2017 Tex. Gen. Laws 3912
    , 3933 (S. 8. 2065).
    The Honorable Dan Patrick - Page 5           (KP-0176)
    SUMMARY
    Unless a church provides effective oral or written notice
    prohibiting the carrying of handguns on its property, a license holder
    may carry a handgun on church property as the law otherwise
    allows.
    The regulations of the Private Security Act, including the
    fees required thereunder, do not apply to Texas churches when
    providing volunteer security services consistent with the
    requirements of section 1702.333 of the Occupations Code.
    Very truly yours,
    KEN PAXTON
    Attorney General of Texas
    JEFFREY C. MATEER
    First Assistant Attorney General
    BRANTLEY STARR
    Deputy First Assistant Attorney General
    VIRGINIA K. HOELSCHER
    Chair, Opinion Committee
    

Document Info

Docket Number: KP-0176

Judges: Ken Paxton

Filed Date: 7/2/2017

Precedential Status: Precedential

Modified Date: 12/21/2017