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Whitmire asks AG: licensed carry illegal on ALL school grounds?
Posted: Thu Sep 24, 2015 10:37 pm
by ELB
Chuck Lindell of
The Statesman tweeted that Sen Whitmire is asking the AG if open carry can be legal on certain parts of school property. The Senator thinks not, but says that there is an opposing interpretation that says OC would be legal on walkways, parking lots, etc, i.e. "non-premises." He does make that interpretation sound like a stretch.
But what I find more...alarming I guess... is that the Senator also asks if licensed carry (including concealed) is banned
entirely on school property, not just on "premises." Specifically, parking lots, walkways, etc. This is a much bigger deal than the OC issue above.
2. Does TPC 46.03(a)(1) prohibit the carrying of firearms on the grounds of a school district
where educational activity is being conducted to include parking lots, driveways sidewalks or
walkways of the school property?
One interpretation of TPC 46.03(a)(l) holds that weapons are not prohibited on school parking
lots, sidewalks or walkways by operation of the definition of "premises" found in TPC 46.035
and incorporated by reference into TPC 46.03. However, there is additional language in section
46.03(a)(l) that goes beyond the term "physical premises." Specifically, that same section adds
that weapons are prohibited, "on any grounds ... on which an activity sponsored by a school or
educational institution is being conducted." School classes, educational activities, athletic
activities, band activities, etc., are all activities sponsored by the school district., The "grounds"
needed, or being used, to conduct the activities include the sidewalks, walkways, driveways and
parking lots of the schools. These are all necessary grounds being used so that the activities
sponsored by the school can be performed.
I believe in this instance it is Whitmire that is stretching the interpretation past reason, but if he is correct, then you cannot legally carry, even concealed, when you drop off or pick up your kid at school.
His letter is here:
https://www.texasattorneygeneral.gov/op ... 0054KP.pdf
Re: Whitmire asks AG: licensed carry illegal on ALL school grounds?
Posted: Thu Sep 24, 2015 11:14 pm
by Beiruty
1) It has been the law for CC that your are banned from Premises of the school (i.e. buildings or portion of buildings). No ifs or buts.
2) The activity sponsored by school are for any activity where said activity is held anyplace not part of the school property.
I will give you an example, when I drop or pick my kids, I can conceal carry, I did so and the school resource officer knew about it too. The only advice was concealed means concealed.
Now, after 1/1/2016 CC or OC would be legal on school property other than buildings or portion of a building. I am sure some idiot with an LTC would go OC on school grounds. OC would be legal but extremely irresponsible or say the least undavisable.
Re: Whitmire asks AG: licensed carry illegal on ALL school grounds?
Posted: Thu Sep 24, 2015 11:31 pm
by casp625
Well according to SB11:
Code: Select all
(a-1) Notwithstanding Subsection (a), a license holder
commits an offense if the license holder carries a partially or
wholly visible handgun, regardless of whether the handgun is
holstered, on or about the license holder's person under the
authority of Subchapter H, Chapter 411, Government Code, and
intentionally or knowingly displays the handgun in plain view of
another person:
(1) on the premises of an institution of higher
education or private or independent institution of higher
education; or
(2) on any public or private driveway, street,
sidewalk or walkway, parking lot, parking garage, or other parking
area of an institution of higher education or private or
independent institution of higher education.
So it is illegal to OC on driveway, street, sidewalk, parking lot of an institution of higher education but legal to OC on an elementary/middle/high school?? And yet HB910 is making CC on institution of higher education on public schools legal...
As written it seems this awkwardness is legal, so I would have say the legislature might have unintentionally overlooked something...
Re: Whitmire asks AG: licensed carry illegal on ALL school grounds?
Posted: Thu Sep 24, 2015 11:38 pm
by Charles L. Cotton
Unless things have changed, he is asking for an AG opinion about open-carry on primary and secondary school property (K-12th grades). Let's wait to see his formal request.
Chas.
Re: Whitmire asks AG: licensed carry illegal on ALL school grounds?
Posted: Thu Sep 24, 2015 11:42 pm
by sugar land dave
ELB wrote:Chuck Lindell of
The Statesman tweeted that Sen Whitmire is asking the AG if open carry can be legal on certain parts of school property. The Senator thinks not, but says that there is an opposing interpretation that says OC would be legal on walkways, parking lots, etc, i.e. "non-premises." He does make that interpretation sound like a stretch.
But what I find more...alarming I guess... is that the Senator also asks if licensed carry (including concealed) is banned
entirely on school property, not just on "premises." Specifically, parking lots, walkways, etc. This is a much bigger deal than the OC issue above.
2. Does TPC 46.03(a)(1) prohibit the carrying of firearms on the grounds of a school district
where educational activity is being conducted to include parking lots, driveways sidewalks or
walkways of the school property?
One interpretation of TPC 46.03(a)(l) holds that weapons are not prohibited on school parking
lots, sidewalks or walkways by operation of the definition of "premises" found in TPC 46.035
and incorporated by reference into TPC 46.03. However, there is additional language in section
46.03(a)(l) that goes beyond the term "physical premises." Specifically, that same section adds
that weapons are prohibited, "on any grounds ... on which an activity sponsored by a school or
educational institution is being conducted." School classes, educational activities, athletic
activities, band activities, etc., are all activities sponsored by the school district., The "grounds"
needed, or being used, to conduct the activities include the sidewalks, walkways, driveways and
parking lots of the schools. These are all necessary grounds being used so that the activities
sponsored by the school can be performed.
I believe in this instance it is Whitmire that is stretching the interpretation past reason, but if he is correct, then you cannot legally carry, even concealed, when you drop off or pick up your kid at school.
His letter is here:
https://www.texasattorneygeneral.gov/op ... 0054KP.pdf
The highlighted portion of the law is present-tense, not past-tense, and certainly not future-tense. Students being delivered by parents prior to the official beginning of school or dismissed from class and being picked up by parents are not at that point in time performing a school activity as the school does not have current charge of the student.
Re: Whitmire asks AG: licensed carry illegal on ALL school grounds?
Posted: Thu Sep 24, 2015 11:47 pm
by sugar land dave
Charles L. Cotton wrote:Unless things have changed, he is asking for an AG opinion about open-carry on primary and secondary school property (K-12th grades). Let's wait to see his formal request.
Chas.
That seems to be a most curious oversight though I do not see how the OC lawmakers could have missed something of that nature.
Re: Whitmire asks AG: licensed carry illegal on ALL school grounds?
Posted: Fri Sep 25, 2015 12:11 am
by Charles L. Cotton
sugar land dave wrote:Charles L. Cotton wrote:Unless things have changed, he is asking for an AG opinion about open-carry on primary and secondary school property (K-12th grades). Let's wait to see his formal request.
Chas.
That seems to be a most curious oversight though I do not see how the OC lawmakers could have missed something of that nature.
The issue came up in the Senate committee hearing in regards to both HB910 and SB11. Primary and secondary schools were not the topic and nobody thought of it. Carrying openly a campus of a primary or secondary school would be a colossally bad idea! I'm sure this will be changed in 2017
Chas.
Re: Whitmire asks AG: licensed carry illegal on ALL school grounds?
Posted: Fri Sep 25, 2015 12:14 am
by Beiruty
It does not make sense that In part of the law, it says you are banned from only buildings, in another part it states you are banned from all areas where schools activities are being conducted. Unless the the areas are disjoint and exclusively separate.
Re: Whitmire asks AG: licensed carry illegal on ALL school grounds?
Posted: Fri Sep 25, 2015 8:56 am
by ELB
Charles L. Cotton wrote:Unless things have changed, he is asking for an AG opinion about open-carry on primary and secondary school property (K-12th grades). Let's wait to see his formal request.
Chas.
I believe his formal request is at the link I provided, no? It is on letterhead from the Senate, and is in the "opinions" section of the AG's website.
He does indeed ask about open carry in his first question, but his second question is about carry in general. Sounds like to me he is saying that current law, never mind results from the just held legislative session, ban any kind of carry on "premises" and all other school property.
Re: Whitmire asks AG: licensed carry illegal on ALL school grounds?
Posted: Fri Sep 25, 2015 9:01 am
by ELB
Beiruty wrote:...
2) The activity sponsored by school are for any activity where said activity is held anyplace not part of the school property.
The law does not actually say "not part of the school property", it says "any grounds", and Sen Whitmire seems to be arguing that walkways, parking lots, etc are places where activities sponsored by the school are necessarily happening, therefore carry not legal.
Beiruty wrote:...I will give you an example, when I drop or pick my kids, I can conceal carry, I did so and the school resource officer knew about it too. The only advice was concealed means concealed.
I think most if not all of us interpreted the law this way, but Whitmire is saying this is wrong. That's the point of question 2 of his letter.
Re: Whitmire asks AG: licensed carry illegal on ALL school grounds?
Posted: Fri Sep 25, 2015 9:24 am
by locke_n_load
My opinion, past Jan 1st, is that OC and CC(already legal) will be legal in the driveways/parking lots at public schools. The penal code specifically states that public parking lots, driveways, and walkways are not off limits for carry.
Get out, hug your kid goodbye, and leave. Look professional if OCing. I'm sure there will be a test case next year too for some overzealous cop/superintendent/parent sometime early next year.
I don't see what part of the code requires fixing - it's pretty clear.
Re: Whitmire asks AG: licensed carry illegal on ALL school grounds?
Posted: Fri Sep 25, 2015 10:33 am
by Mike S
I actually look forward to any AG decision's regarding carry or self defense related laws. It helps remove any ambiguity and wiggle room from anyone's interpretation (both keeping us on the right side of the law, AND keeping others from overstepping what's enforceable), & if needed the law can be re-tweeked next session.
There was a CHL carrier a couple years back that shot a man who was attacking a woman (I believe) in front of a San Antonio school. If I recall correctly, the school principal wanted the shooter arrested however the responding officers refused since he was legally carrying on the sidewalk in front of the school. May have the facts a bit off, but I do recall the news coverage made it clear that the CHL carrier wasn't in any trouble.
Re: Whitmire asks AG: licensed carry illegal on ALL school grounds?
Posted: Fri Sep 25, 2015 10:55 am
by dlh
Last I remember Attorney General Opinions are not binding on the courts. However, I will be interested in analyzing the reasoning used to arrive at their non-binding opinion.
dlh
Re: Whitmire asks AG: licensed carry illegal on ALL school grounds?
Posted: Fri Sep 25, 2015 12:25 pm
by Mike S
dlh wrote:Last I remember Attorney General Opinions are not binding on the courts. However, I will be interested in analyzing the reasoning used to arrive at their non-binding opinion.
dlh
Yup, you are correct that AG opinions do not serve as binding precedence on the courts, merely persuasive precedence (they can go with it, or not). However, if one is arrested & tried because in good faith they were relying on that opinion as a correct interpretation of the law (and it hadn't been rendered obsolete by a change in the law or by court decision), they may be able to present an affirmative defense at trial. No guarantee as a binding precedence would have, & I'm not a lawyer. However, I'd much rather stay within the law, leaning on binding precedence when available, & in this case on the AG's opinion until case law or legislative act removes any ambiguity/room for interpretation on the part of the prosecution.
https://www.tsl.texas.gov/ld/pubs/liblaws/aboutag.html
Re: Whitmire asks AG: licensed carry illegal on ALL school grounds?
Posted: Fri Sep 25, 2015 12:41 pm
by o b juan
"Look professional if OCing."
Pulled this out from above a few back
That may be hard ta do.