Open Carry on School Property
How the new law has affected public school districts in Texas.
By Joy Baskin
During the 2015 legislative session, Texas legislators passed several
laws related to firearms, including one to allow the open carry of
holstered handguns by licensed individuals. These laws have uniquely
affected public school districts.
As of January 1, 2016, a handgun license holder in Texas may choose to wear his or her firearm in a shoulder or belt holster rather than concealing it. The legislative change to permit open carry, however, did not expand the locations on school property where a license holder may carry a handgun; in other words, except for authorized individuals, both open and concealed carry are still prohibited in certain areas of school property. But, according to a Texas Attorney General’s opinion, open carry must be permitted in the portions of school property not covered by Texas Penal Code sections 46.03 and 46.035.
Open carry is not allowed inside school buildings and other locations specified by state law, which makes it clear that it is illegal for an unauthorized individual to carry a firearm into the premises of a school district building. Tex. Penal Code § 46.03(a)(1). For this purpose, premises means a building or a portion of a building, and not a public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area. Tex. Penal Code § 46.03(c)(1), .035(f)(3)). It is not a defense to prosecution under this section that the individual was licensed to carry a handgun, and an offense under the specified section is a third-degree felony. Tex. Penal Code § 46.03(f)-(g).
Similarly, a person commits a third-degree felony offense if he or she brings a firearm on a school passenger vehicle or on the premises of a polling place on Election Day or during early voting. Tex. Penal Code § 46.03(a)(1)-(2), (g).
Texas law also prohibits the unauthorized possession of weapons, including firearms, at school events regardless of location. Unless a person has special authorization, he or she commits a third-degree felony offense when intentionally, knowingly, or recklessly possessing or going with a firearm or other prohibited weapon on any grounds or building on which a school-sponsored activity is being conducted. Tex. Penal Code § 46.03(a)(1), (g). As stated before, it is not a defense to prosecution that the person holds a license to carry a handgun. Tex. Penal Code § 46.03(f).
In addition, a handgun license holder commits a Class A misdemeanor offense if he or she intentionally, knowingly, or recklessly carries a handgun on the premises where a high school, collegiate, or professional sporting event or interscholastic event is taking place, unless the license holder is a participant in the event and a handgun is used in the event. Tex. Penal Code § 46.035(b)(2), (g).
On September 22, 2015, state Sen. John Whitmire asked Texas Attorney General Ken Paxton whether school districts must permit the open carry of handguns on any part of school district property. Whitmire further inquired about the definition of “educational activity” with regard to both the open and concealed carrying of handguns on school district property. Paxton responded on December 21, 2015, that openly carried firearms may be prohibited not only in school district premises and buildings but also on any grounds where a school-sponsored activity is taking place. Tex. Att’y Gen. Op. No. KP-50 (2015). Paxton opined that whether or where on school grounds an activity is taking place is a factual inquiry that must be determined on a case-by-case basis. He offered one example of the use of school grounds for a school-sponsored activity: If a high school marching band uses a parking lot for rehearsal, the parking lot is an area where the district may restrict firearms during the time of the rehearsal. Other determinations about when and where school activities are happening are left to local school officials; however, if an aggrieved individual files a legal challenge to how a school district interprets the law, the district’s choices will be subject to judicial review.
Based on the attorney general’s opinion, each school district must assess, campus by campus, the use of the exterior portions of each school district building for activities like band practices, athletics, and other extracurricular uses; classroom uses (like outdoor science experiments); recess and physical education; lunch breaks; and so forth. Many districts consider pick-up and drop-off periods to be school-sponsored activities, as the district is operating school transportation and providing staff to oversee the safety and security of the students, grounds, and vehicles during these times.
Signs About Open and Concealed Carry
Signs or other forms of notice are considered valuable as a warning to the public that firearms are not permitted. Written or oral communication is not required, however, to make it illegal for an unauthorized person to take a handgun into a school district building, the building or grounds where a school-sponsored activity is taking place, a school district passenger vehicle, a polling place, an open meeting of the school board, or the location of a high school sport or interscholastic event (i.e., the places firearms are not allowed under Texas Penal Code sections 46.03 and 46.035). Signage or other notice is required only if the school district wishes to establish that a handgun license holder has committed a trespassing offense in addition to the felony offenses in sections 46.03 and 46.035.
A license holder commits a Class C misdemeanor if he or she openly carries a handgun, under the authority of the license and without effective consent, onto school district property where firearms are prohibited by either section 46.03 or 46.035, if the license holder received notice by written communication that entry with an openly carried handgun is forbidden. In addition, if the license holder receives oral notice that openly carried handguns are prohibited and fails to leave, the offense is a Class A misdemeanor. Tex. Penal Code § 30.07. Under section 30.07, notice by written communication means either: (1) a card or other document with specific text or (2) a sign that meets the statutory requirements.
If a school district chooses to provide notice through signs, section 30.07 for openly carried handguns requires a second sign, with slightly different wording from section 30.06 on concealed handguns, to be posted at every entrance.
But school districts that post warning signs to prohibit concealed handguns in locations not covered by the Texas Penal Code can risk civil penalties. Effective September 1, 2015, the Texas Legislature took the additional step of creating a civil penalty for school districts and other political subdivisions that provide notice (including by posting signs) expressly referring to section 30.06 or concealed handgun licenses indicating that a license holder carrying a handgun within the scope of the license may not enter or remain on property owned or leased by the political subdivision except in locations where firearms are prohibited by Texas Penal Code sections 46.03 and 46.035.
A school district or other political subdivision that violates this provision is liable for a civil penalty of $1,000 to $1,500 for the first violation and $10,000 to $10,500 for any subsequent violation, and each day that an impermissible sign is displayed is a separate violation. A citizen of the state or a person licensed to carry a firearm may file a complaint with the Attorney General’s Office identifying a violation. After an investigation and an opportunity to cure the violation, the Attorney General’s Office may file a lawsuit against the political subdivision, and sovereign immunity is abolished for this purpose. Tex. Gov’t Code § 411.209. The civil penalty is specific to warnings about concealed handguns.
The laws related to open and concealed carry by members of the public on school property remain complex. Signs will not always clarify where and when licensed handguns are allowed. TBJ
This article was previously published and is reprinted with permission.
|JOY BASKIN became the director of Legal Services of the Texas Association of School Boards in October 2005, after working as an attorney in TASB’s Legal Services Division for eight years. She is an active member of the School Law Section of the State Bar of Texas, including serving on its executive council as chair of the section, and is also a member of the Texas Council of School Attorneys and the National Council of School Attorneys. Baskin currently serves as a member of the Supreme Court of Texas Permanent Judicial Commission for Children, Youth, and Families Education Committee.|