TX AG Opinion: Non-profits rent'g gov't prop at arms-length may post

[ELB]

https://www.texasattorneygeneral.gov/op ... kp0108.pdf

Was not the outcome I expected/hoped for. He has cut the line pretty broad in support of licensed carry in other opinions, so I think he is pretty sure this is how it would go in court:

You explain that in -your county "at least two non-profit agencies ... have offices located
on land owned" by a city. 1 You further explain that those agencies are the only entities located on
the specific properties in question, that no governmental offices are located on the properties, and
that the city "has no authority as to the operation of the non-profit and all decisions are made by
an independent board of directors." Request Letter at 1. Given these facts you ask whether
handguns may be prohibited by a nonprofit entity when the entity's offices are located on property
owned by a city or governmental entity.

SUMMARY
Section 411.209 of the Government Code creates a civil
penalty for a state agency or a political subdivision that provides
notice that a license holder carrying a handgun is prohibited on
property owned by the governmental entity unless carrying a
handgun in such locations is expressly prohibited under the Penal
Code. Section 411.209 applies only to a state agency or political
subdivision of the State and does not address whether a private
entity, including an independent nonprofit entity, may provide
notice to license holders that the carrying of handguns is prohibited
in the private entity's offices. As long as the state agency or political
subdivision leasing the property to the private entity has no control
over the decision to post such notice, the state agency or political
subdivision lessor would not be the entity responsible for the posting
and would therefore not be subject to a civil penalty under section
411.209.

A court would likely conclude that a license holder who
carries a handgun on property that is owned by a governmental
entity but leased to a private entity and that is not a premises or other
place from which the license holder is prohibited from carrying a
handgun under sections 46.03 or 46.035 of the Penal Code is
excepted from the offenses in subsections 30.06(a) and 30.07(a) of
the Penal Code.

[TXBO]

I am confused by the last paragraph:

A court would likely conclude that a license holder who
carries a handgun on property that is owned by a governmental
entity but leased to a private entity and that is not a premises or other
place from which the license holder is prohibited from carrying a
handgun under sections 46.03 or 46.035 of the Penal Code is
excepted from the offenses in subsections 30.06(a) and 30.07(a) of
the Penal Code.

This seems to say that you CAN carry..??

It appears to me that he is saying two things. The court won't find the government entity liable for the fines and the court won't find the LTC holder guilty of 30.06/30.07 violation.

[ELB]

It appears to me that he is saying two things. The court won't find the government entity liable for the fines and the court won't find the LTC holder guilty of 30.06/30.07 violation.

I believe you correct. I didn't catch this the first time through, but one paragraph back from the Summary he writes (I removed citations and put in paragraph breaks to make it easier to read):

The plain language of subsections 30.06(e) and 30.07(e) make an exception if the property on which the license holder carries a gun "is owned or leased by a governmental entity." ...

These statutes make no exception to that exception for property owned by a governmental entity but leased to a private entity, and to conclude that carrying a handgun on such property is prohibited would therefore require reading language into the statute
beyond what the Legislature included. ...

Thus, a court would likely conclude that a license holder carrying a handgun on property that is not a premises or other place from which the license holder is prohibited from carrying under sections 46.03 or 46.035 of the Penal Code and that is owned by a governmental entity but leased to a private entity is excepted from the offenses in 30.06(a) and 30.07(a).2

So non-profits that rent/lease state or local government property/premises can post...but it has no legal effect. Interesting.

[Soccerdad1995]

I understand that LTC holders can legally disregard the otherwise apparently compliant 30.06 / 30.07 signs, but what happens when the non-profit physically prevents LTC holders from carrying on the premises through the use of metal detectors / wands coupled with security guards? Would the LTC holder have any recourse in these situations?

[ELB]

I understand that LTC holders can legally disregard the otherwise apparently compliant 30.06 / 30.07 signs, but what happens when the non-profit physically prevents LTC holders from carrying on the premises through the use of metal detectors / wands coupled with security guards? Would the LTC holder have any recourse in these situations?

I believe you could file a lawsuit over that.

But it would take a particular non-profit to be willing to spend the $$ necessary to buy metal detectors and wands and hire guards to use them. I was so interested in the opinion I forgot I had posted on the original request for it here: viewtopic.php?f=7&t=83605&p=1071190&hil ... y#p1071190 (if I had remembered, I would have appended my OP to it).
and I looked up what non-profits might exist on government land in Erath County. The only one I know for sure is the Humane Society, and I doubt they will put up detectors and such. A homeless shelter or some such might feel it necessary to hire security, but I don't see the Humane Society or Habitat for Humanity doing anything beside maybe posting some signs.

[Jusme]

I understand that LTC holders can legally disregard the otherwise apparently compliant 30.06 / 30.07 signs, but what happens when the non-profit physically prevents LTC holders from carrying on the premises through the use of metal detectors / wands coupled with security guards? Would the LTC holder have any recourse in these situations?

My question was similar and it pertains specifically to the Ft. Worth Zoo, they don't have the land for an amusement park exemption, but they are leasing the property from the city of Ft. Worth, and although they haven't done so, wanding could be a possibility, if it is determined that they can post with no penalty for the city, and they want to enforce the carry ban, even if it has no force of law.

[DevilDawg]

Looks like the good folks of the HLSR will probably use this to post 30.06/.07 signs again next March and into eternity unless we get some details tightened up in the next session.

[Jusme]

Looks like the good folks of the HLSR will probably use this to post 30.06/.07 signs again next March and into eternity unless we get some details tightened up in the next session.

They need to look at what the Ft. Worth Stock Show and Rodeo did. They allowed carry in most places except the rodeo arena, which is a prohibited place anyway, and I believe the club there because it was a 51% location. They had zero problem throughout the entire run.

[ELB]

The AG does put in this footnote:

Such a conclusion would not necessarily preclude a private entity's claim for civil trespass. "Generally, an
owner of realty has the right to exclude all others from use of the property[.]" Severance v. Patterson, 370 S.W.3d
705, 709 (Tex. 2012). "[E]very unauthorized entry upon land of another is a trespass[,] even if no damage is done
or injury is slight." Coastal Oil & Gas Corp. v. Garza Energy Tr., 268 S.W.3d I, 12 n.36 (Tex. 2008) (quotation
marks omitted). Thus, while criminal enforcement may not be available, we find no authority that prohibits the
private entity from restricting entry onto that leased property for individuals carrying handguns.

[Jusme]

The AG does put in this footnote:

Such a conclusion would not necessarily preclude a private entity's claim for civil trespass. "Generally, an
owner of realty has the right to exclude all others from use of the property[.]" Severance v. Patterson, 370 S.W.3d
705, 709 (Tex. 2012). "[E]very unauthorized entry upon land of another is a trespass[,] even if no damage is done
or injury is slight." Coastal Oil & Gas Corp. v. Garza Energy Tr., 268 S.W.3d I, 12 n.36 (Tex. 2008) (quotation
marks omitted). Thus, while criminal enforcement may not be available, we find no authority that prohibits the
private entity from restricting entry onto that leased property for individuals carrying handguns.

Yeah that does sound like, the AG is giving an out to anyone leasing government property. I am not a happy camper!

[ELB]

The AG does put in this footnote:

Such a conclusion would not necessarily preclude a private entity's claim for civil trespass. "Generally, an
owner of realty has the right to exclude all others from use of the property[.]" Severance v. Patterson, 370 S.W.3d
705, 709 (Tex. 2012). "[E]very unauthorized entry upon land of another is a trespass[,] even if no damage is done
or injury is slight." Coastal Oil & Gas Corp. v. Garza Energy Tr., 268 S.W.3d I, 12 n.36 (Tex. 2008) (quotation
marks omitted). Thus, while criminal enforcement may not be available, we find no authority that prohibits the
private entity from restricting entry onto that leased property for individuals carrying handguns.

Yeah that does sound like, the AG is giving an out to anyone leasing government property. I am not a happy camper!

To be fair, he is supposed to be giving an opinion on the law as it is written, not as it should be. He has generally hewn a line very protective, within the law, of licensed carriers' rights. Here he may not only be pointing out the law, but an area that the Leg has not yet addressed.

Also note that it is not "anyone" who is leasing government property, he is talking about when the non-government entity operates pretty much independently. If the non-governmental entity is hired by the government to provide a government service, or non-profit operates jointly with the government, then the facts of the situation have changed and the interpretation may change with it.

[locke_n_load]

Looks like the good folks of the HLSR will probably use this to post 30.06/.07 signs again next March and into eternity unless we get some details tightened up in the next session.

........Ugh.

[ScottDLS]

This appears fairly limited to the case where the non-profit rents the space exclusively for their own use as an office/work area. Different than say...a stadium, where the City owns the property and the private entity operates it for various public and private functions. Or various organizations lease it from the City at different times for events/shows.