New AG Opinion Re Authorized Handguns at School

[AlaskanInTexas]

The Attorney General's office just released GA-1051, available at https://www.texasattorneygeneral.gov/op ... ga1051.pdf

Here is the summary:

SUMMARY
Penal Code section 46.035, subsections (b) and (c) are not violated by a person who is lawfully
carrying a handgun pursuant to a school board of trustees' written regulations and authorization
under subsection 46.03(a)(l). A person acting according to such regulations and authorization
would likely be acting within the scope of official duties. A school board may appoint one person
to serve as a school marshal under section 37.0811 of the Education Code and authorize another
person to serve under the district's regulations and authorization under subsection 46.03(a)(l) of
the Penal Code.

[RoyGBiv]

"Governor Abbott" has a nice ring to it.

[gthaustex]

Very nice....more on story here from Austin paper.

http://www.statesman.com/news/news/arme ... ays/nfcsZ/



I do like the sound of Governor Abbott.

[Keith B]

Has always been legal to allow ANYONE to carry if permission was given.

Sec. 46.03. PLACES WEAPONS PROHIBITED.
(a) A person commits an offense if the person intentionally, knowingly, or recklessly possesses or goes with a firearm, illegal knife, club, or prohibited weapon listed in Section 46.05(a):
(1) on the physical premises of a school or educational institution, any grounds or building on which an activity sponsored by a school or educational institution is being conducted, or a passenger transportation vehicle of a school or educational institution, whether the school or educational institution is public or private, unless pursuant to written regulations or written authorization of the institution;

The only thing I see is this being clarified to allow the school to assign them as a school marshal.

A school board may appoint one person to serve as a school marshal under section 37.0811 of the Education Code and authorize another person to serve under the district's regulations and authorization under subsection 46.03(a)(l) of
the Penal Code.

[TBJK]

& not to mention it does say written. Written on district letterhead may be pretty hard to get.

Also reminds me of a line in a movie. "Heeyyy Abbott" lol

[ELB]

...
The only thing I see is this being clarified to allow the school to assign them as a school marshal...

I don't believe that was what was clarified, nor the point of Pickett's letter. There's more to it than that.

Sec 46.03(a) prohibits carry of certain weapons on school premises, grounds, buildings or transportation vehicles unless the board of trustees authorizes an exception in writing or by regulation.
Sec 46.035(b) prohibits carry by a CHL holder at a high school, collegiate, or professional sporting event or interscholastic event. The only exception listed is if the person with the gun is a participant and the gun is used in the event. It mentions no other exception.
Sec 46.035(c) prohibits carry by a CHL holder at a meeting of a governmental entity (of which a board of trustees is one). It mentions no exception, written or otherwise.

Since these are all at the same level of hierarchy in the Penal Code, it certainly could be argued that the exception in 46.03(a) does not apply to the prohibitions in 46.035(b) and (c). If that were the case, the written authorization or regulation allowing weapons carry in a school would not apply to CHL holders attending school board meetings and athletic or scholastic events.

That is what Mr. Pickett was asking about wrt 46.03, the first two questions answered in Mr. Abbott's letter.

Mr. Abbott's answer to this is, paraphrased, the exception in 46.03(b) does apply to the 46.03(b) school athletic/scholastic events, and to 46.035(c) meetings of school boards as governmental entities.

Mr. Abbott's answer about the fourth qeustion on school marshals and school gardians was that the school board may authorize BOTH a school marshal AND another person to carry weapon via regulation or writtin authorization. (And/or illegal knife, club, or prohibited weapon listed in Section 46.05(a)) (NOTE: says "firearm," not "handgun.") They can have a school marshal and school "guardians."

(Yannow, now that I look at 46.03 for the umpteenth time, I realize, as KeithB notes, it does NOT require one to have a CHL to carry in a school with written authorization. It just says a person can be authorized (in writing) to carry a weapon. Hmmmm.)

Mr. Abbott has very interesting reasoning for the answer to Mr. Pickett's first two questions, that applies to some older (ancient?) discussions on this board, but I'm going to devote a separate post to it.

[Keith B]

...
The only thing I see is this being clarified to allow the school to assign them as a school marshal...

I don't believe that was what was clarified, nor the point of Pickett's letter. There's more to it than that.

Sec 46.03(a) prohibits carry of certain weapons on school premises, grounds, buildings or transportation vehicles unless the board of trustees authorizes an exception in writing or by regulation.
Sec 46.035(b) prohibits carry by a CHL holder at a high school, collegiate, or professional sporting event or interscholastic event. The only exception listed is if the person with the gun is a participant and the gun is used in the event. It mentions no other exception.
Sec 46.035(c) prohibits carry by a CHL holder at a meeting of a governmental entity (of which a board of trustees is one). It mentions no exception, written or otherwise.

Since these are all at the same level of hierarchy in the Penal Code, it certainly could be argued that the exception in 46.03(a) does not apply to the prohibitions in 46.035(b) and (c). If that were the case, the written authorization or regulation allowing weapons carry in a school would not apply to CHL holders attending school board meetings and athletic or scholastic events.

That is what Mr. Pickett was asking about wrt 46.03, the first two questions answered in Mr. Abbott's letter.

Mr. Abbott's answer to this is, paraphrased, the exception in 46.03(b) does apply to the 46.03(b) school athletic/scholastic events, and to 46.035(c) meetings of school boards as governmental entities.

Mr. Abbott's answer about the fourth qeustion on school marshals and school gardians was that the school board may authorize BOTH a school marshal AND another person to carry weapon via regulation or writtin authorization. (And/or illegal knife, club, or prohibited weapon listed in Section 46.05(a)) (NOTE: says "firearm," not "handgun.") They can have a school marshal and school "guardians."

(Yannow, now that I look at 46.03 for the umpteenth time, I realize, as KeithB notes, it does NOT require one to have a CHL to carry in a school with written authorization. It just says a person can be authorized (in writing) to carry a weapon. Hmmmm.)

Mr. Abbott has very interesting reasoning for the answer to Mr. Pickett's first two questions, that applies to some older (ancient?) discussions on this board, but I'm going to devote a separate post to it.

I agree 46.03 does not require a CHL. 46.03 applies to anyone, not just a CHL holder. Also, good point on 46.03(b) and (c) and the clarification.

[howdy]

...
The only thing I see is this being clarified to allow the school to assign them as a school marshal...

I don't believe that was what was clarified, nor the point of Pickett's letter. There's more to it than that.

Sec 46.03(a) prohibits carry of certain weapons on school premises, grounds, buildings or transportation vehicles unless the board of trustees authorizes an exception in writing or by regulation.
Sec 46.035(b) prohibits carry by a CHL holder at a high school, collegiate, or professional sporting event or interscholastic event. The only exception listed is if the person with the gun is a participant and the gun is used in the event. It mentions no other exception.
Sec 46.035(c) prohibits carry by a CHL holder at a meeting of a governmental entity (of which a board of trustees is one). It mentions no exception, written or otherwise.Since these are all at the same level of hierarchy in the Penal Code, it certainly could be argued that the exception in 46.03(a) does not apply to the prohibitions in 46.035(b) and (c). If that were the case, the written authorization or regulation allowing weapons carry in a school would not apply to CHL holders attending school board meetings and athletic or scholastic events.

That is what Mr. Pickett was asking about wrt 46.03, the first two questions answered in Mr. Abbott's letter.

Mr. Abbott's answer to this is, paraphrased, the exception in 46.03(b) does apply to the 46.03(b) school athletic/scholastic events, and to 46.035(c) meetings of school boards as governmental entities.

Mr. Abbott's answer about the fourth qeustion on school marshals and school gardians was that the school board may authorize BOTH a school marshal AND another person to carry weapon via regulation or writtin authorization. (And/or illegal knife, club, or prohibited weapon listed in Section 46.05(a)) (NOTE: says "firearm," not "handgun.") They can have a school marshal and school "guardians."

(Yannow, now that I look at 46.03 for the umpteenth time, I realize, as KeithB notes, it does NOT require one to have a CHL to carry in a school with written authorization. It just says a person can be authorized (in writing) to carry a weapon. Hmmmm.)

Mr. Abbott has very interesting reasoning for the answer to Mr. Pickett's first two questions, that applies to some older (ancient?) discussions on this board, but I'm going to devote a separate post to it.

There is an exception to this section:


(i) Subsections (b)(4), (b)(5), (b)(6), and (c) do not apply if the actor
was not given effective notice under Section 30.06. If the school board meeting was in a school owned facility, (most are) then absent a 30.06 sign, with authorization, you could carry there. (My head starts to spin when I get this deep in the law and I might be thinking in the wrong direction)

[srothstein]

Yannow, now that I look at 46.03 for the umpteenth time, I realize, as KeithB notes, it does NOT require one to have a CHL to carry in a school with written authorization. It just says a person can be authorized (in writing) to carry a weapon.

I agree with almost everything you posted but I am not quite sure about this part, nor am I sure about the ruling being correct. But as I think on it, I am not sure it is wrong either. Consider this point: it is illegal in general to carry without a CHL. But the exception for CHLs also only applies to 46.02.

So, a person could be legally authorized to carry at a high school by the school board. But he would have no legal way of carrying to or from the location. I know you could use the necessity argument for going to and from work but the law doesn't say so. And then the federal law also has exceptions for peace officers and CHLs from that state, but would have no exception for the legally authorized. I know it won't be the first time an act was legal under state law and illegal under federal law though.

Overall, I think I am going to have to go do some real studying to see how this will play out and what it means for the past. It is an interesting ruling and favors guns, at least on its face.

PS. I agree that everyone should read the ruling. It does have bearing on other points in posts that have long been debated here.

[jbarn]

Yannow, now that I look at 46.03 for the umpteenth time, I realize, as KeithB notes, it does NOT require one to have a CHL to carry in a school with written authorization. It just says a person can be authorized (in writing) to carry a weapon.

I agree with almost everything you posted but I am not quite sure about this part, nor am I sure about the ruling being correct. But as I think on it, I am not sure it is wrong either. Consider this point: it is illegal in general to carry without a CHL. But the exception for CHLs also only applies to 46.02.

So, a person could be legally authorized to carry at a high school by the school board. But he would have no legal way of carrying to or from the location. I know you could use the necessity argument for going to and from work but the law doesn't say so. And then the federal law also has exceptions for peace officers and CHLs from that state, but would have no exception for the legally authorized. I know it won't be the first time an act was legal under state law and illegal under federal law though.

Overall, I think I am going to have to go do some real studying to see how this will play out and what it means for the past. It is an interesting ruling and favors guns, at least on its face.

PS. I agree that everyone should read the ruling. It does have bearing on other points in posts that have long been debated here.

I don't follow you... A non CHL holder can receive permission to carry on the premises of a school. That person can carry to or from under penal code 46.02.

I agree necessity would not apply. But it is not needed. I also agree with you about the federal violation without a CHL.

Am I missing something?

[gringo pistolero]

1. Authorization exempts someone from the 46.03 prohibition in schools but not from 46.02 anywhere I see.
2. The 46.03 prohibition applies to all firearms.

So school permission makes it legal for someone to carry a rifle or shotgun inside the school or at a school event, but it doesn't allow them to carry a handgun unless they have some exemption to 46.02. For example, school permission would allow a school bus driver to carry a handgun inside the motor vehicle under their control, even though it's a school bus normally off limits because of 46.03.

[howdy]

Can you imagine a Judge trying to explain all of this to a jury when your "life as you know it" hangs in the balance. How could they ever make an informed decision.

[gringo pistolero]

Can you imagine a Judge trying to explain all of this to a jury when your "life as you know it" hangs in the balance. How could they ever make an informed decision.

I think most of the good guys agree laws infringing RKBA only benefit the bad guys. However, some bad guys wear suits.