Education Law
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.
School Buildings
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).
School-sponsored Activities
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.
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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. |
