What does KP-108 mean?

[mloamiller]

I've seen a few references to "KP-108" in other threads so I looked it up; thought others might appreciate a summary.

KP-108 refers to an opinion letter from Ken Paxton, AG of Texas. (https://texasattorneygeneral.gov/opinio ... kp0108.pdf). It was sent to Lisa Pence, Erath County Attorney, in August 2016 in response to a question she had posed regarding the new law that imposes fines on city/state governments ("governmental entities") for improperly posting 30.06/30.07 signs. The question was specifically related to a non-profit organization that leased land from the city. She asked if the non-profit operating on city-owned land could legally post 30.06/30.07, even though the land was owned by the city, but no "governmental entity" had any presence on or involvement with the operation. The AG's response was a mixed victory for LTC holders.

First, his opinion stated that yes - a non-profit organization (and by implication, any organization?) that leases property from a government entity can legally post 30.06/30.07 as long as the government entity "has no control over the decision to post such notice." His reasoning is that the statute (411.209) specifically restricts only "a state agency or political subdivision of the state" from posting signs in this situation; it doesn't apply to other entities that are in control of the property. So, a third-party (in some circumstances) can post state/city owned property without being fined. That's the bad news.

The good news (or at least not as bad news) is he went on to say that the signs still couldn't be enforced. He cited 30.06 and 30.07 of the Penal Code, stating that these don't make an exception to who might be in control of the property. Specifically, subsections 30.06(e) and 30.07(e) create exceptions to the application of those sections if "the property on which the license holder ... carries a handgun is owned or leased by a governmental entity." In other words, in this part of the law, only ownership of the property matters, not who may be in control.

Hope that is useful.

[Jusme]

I've seen a few references to "KP-108" in other threads so I looked it up; thought others might appreciate a summary.

KP-108 refers to an opinion letter from Ken Paxton, AG of Texas. (https://texasattorneygeneral.gov/opinio ... kp0108.pdf). It was sent to Lisa Pence, Erath County Attorney, in August 2016 in response to a question she had posed regarding the new law that imposes fines on city/state governments ("governmental entities") for improperly posting 30.06/30.07 signs. The question was specifically related to a non-profit organization that leased land from the city. She asked if the non-profit operating on city-owned land could legally post 30.06/30.07, even though the land was owned by the city, but no "governmental entity" had any presence on or involvement with the operation. The AG's response was a mixed victory for LTC holders.

First, his opinion stated that yes - a non-profit organization (and by implication, any organization?) that leases property from a government entity can legally post 30.06/30.07 as long as the government entity "has no control over the decision to post such notice." His reasoning is that the statute (411.209) specifically restricts only "a state agency or political subdivision of the state" from posting signs in this situation; it doesn't apply to other entities that are in control of the property. So, a third-party (in some circumstances) can post state/city owned property without being fined. That's the bad news.

The good news (or at least not as bad news) is he went on to say that the signs still couldn't be enforced. He cited 30.06 and 30.07 of the Penal Code, stating that these don't make an exception to who might be in control of the property. Specifically, subsections 30.06(e) and 30.07(e) create exceptions to the application of those sections if "the property on which the license holder ... carries a handgun is owned or leased by a governmental entity." In other words, in this part of the law, only ownership of the property matters, not who may be in control.

Hope that is useful.

My understanding, (and I'm far from a legal scholar) referring to the "arms length" definition which to me, would mean that the leasing entity, maintained complete control, over the property, without the actual government agency, playing any active role, outside of ownership. So places like gun shows, where the employees working concessions, the employees working in maintenance and housekeeping, are all employed by the governing agency, would not fall under the "arms length" clause. The same would hold true at any property, where the government entity has any sort of care and control, the exemption, to even be allowed to post, would not apply. Much less be enforceable. I wish the AG would at least render an opinion, with a little more clarity, since so many places, are using this opinion, as a basis, for being able to post signs. I fear that there will end up being, a LTC holder, who will be charged with a violation, even though, the charge was erroneous. JMHO.

[crazy2medic]

My understanding on this was that the leasee can post, but the leasor cannot enforce it, such as the Ft Worth gun show, the show sponsors can post but the Ft Worth Police cannot enforce the posting!,
That is my understanding, Charles would you or somebody with a law degree please weigh in on this PLEASE!

[der Teufel]

Truly I'm not a lawyer —

But my understanding regarding this ruling was that the gov't entity couldn't be held responsible (fined) for signs posted by a private entity where there was no involvement by the gov't entity as described above. That was what I thought the ruling concerned.

The signs are unenforceable, but the gov't/public entity that owns the property can't be held responsible for them.

This would apply to something like an animal shelter that's operated on property that belongs to a city or county, but it totally managed and financed by people and funds that are not connected to the city or county.

Just my understanding, this is not legal advice, all routine disclaimers apply.
IANAL YMMV MTFBWY
--

[mloamiller]

The signs are unenforceable, but the gov't/public entity that owns the property can't be held responsible for them.

That's the crux of the opinion. Unfortunately for LTC holders, it puts us in the uncomfortable position of walking past an unenforceable sign, wondering if we'll "beat the rap, but not the ride", while knowing that no one will be held accountable for the signs. That's exactly what the law was supposed to alleviate.

[bblhd672]

My understanding on this was that the leasee can post, but the leasor cannot enforce it, such as the Ft Worth gun show, the show sponsors can post but the Ft Worth Police cannot enforce the posting!,
That is my understanding, Charles would you or somebody with a law degree please weigh in on this PLEASE!

The gun show promoters need to stop posting the unenforceable signs that only apply to one segment of their customers - LTC holders. They only serve to aggravate and annoy law abiding citizens. Criminals and non-LTC holders aren't affected and don't care about these signs, probably don't even know what they mean.

They should just post big signs that say what their policies are concerning no loaded weapons and no ammo inside the show and that buying a ticket means you agree to the terms. If someone violates, ask them to leave, if they won't then have police arrest the trespasser.

I can handle being told I cannot carry inside the show if that's the promoter's policy, but to attempt to do so via signs that aren't enforceable is an insult.

[ScottDLS]

My understanding on this was that the leasee can post, but the leasor cannot enforce it, such as the Ft Worth gun show, the show sponsors can post but the Ft Worth Police cannot enforce the posting!,
That is my understanding, Charles would you or somebody with a law degree please weigh in on this PLEASE!

The gun show promoters need to stop posting the unenforceable signs that only apply to one segment of their customers - LTC holders. They only serve to aggravate and annoy law abiding citizens. Criminals and non-LTC holders aren't affected and don't care about these signs, probably don't even know what they mean.

They should just post big signs that say what their policies are concerning no loaded weapons and no ammo inside the show and that buying a ticket means you agree to the terms. If someone violates, ask them to leave, if they won't then have police arrest the trespasser.

I can handle being told I cannot carry inside the show if that's the promoter's policy, but to attempt to do so via signs that aren't enforceable is an insult.

I can handle being told not to carry by an unenforceable sign, but I will refuse to comply and carry concealed, which is what I have already done at the Fort Worth Gun Show. Technically they can't even tell you to leave and have it criminally enforceable if the reason is you carrying under LTC.

[LucasMcCain]

My understanding on this was that the leasee can post, but the leasor cannot enforce it, such as the Ft Worth gun show, the show sponsors can post but the Ft Worth Police cannot enforce the posting!,
That is my understanding, Charles would you or somebody with a law degree please weigh in on this PLEASE!

The gun show promoters need to stop posting the unenforceable signs that only apply to one segment of their customers - LTC holders. They only serve to aggravate and annoy law abiding citizens. Criminals and non-LTC holders aren't affected and don't care about these signs, probably don't even know what they mean.

They should just post big signs that say what their policies are concerning no loaded weapons and no ammo inside the show and that buying a ticket means you agree to the terms. If someone violates, ask them to leave, if they won't then have police arrest the trespasser.

I can handle being told I cannot carry inside the show if that's the promoter's policy, but to attempt to do so via signs that aren't enforceable is an insult.

I can handle being told not to carry by an unenforceable sign, but I will refuse to comply and carry concealed, which is what I have already done at the Fort Worth Gun Show. Technically they can't even tell you to leave and have it criminally enforceable if the reason is you carrying under LTC.

The law is not just that the gun show can't post 30.06/07 signs, but that they can't prohibit licensed carry. The promoter is not allowed to prohibit licensed carry, whether it be by tickets, contracts, gunbusters, non-compliant signs, oral notice, or anything else. Government owned means government owned. It doesn't matter who's running it. That's what makes me so mad about Fair Park. They aren't just putting up signs, they are threatening to throw people out. That's not right. Especially since it would be Dallas employees doing the throwing.

[bblhd672]

Re-read KP-108 for the 5th time - I believe I "finally" understand what you guys are saying about the 30.06 and 30.07 signs being unenforceable by the person/organization/business leasing space from a government owned facility. AG Paxton says that a court would likely hold that the license holder is exempt under the statue.

Now all we need is someone with the time and money necessary to take the ride and trial to prove the AG correct.

[ScottDLS]

Re-read KP-108 for the 5th time - I believe I "finally" understand what you guys are saying about the 30.06 and 30.07 signs being unenforceable by the person/organization/business leasing space from a government owned facility. AG Paxton says that a court would likely hold that the license holder is exempt under the statue.

Now all we need is someone with the time and money necessary to take the ride and trial to prove the AG correct.

The "ride" is quite likely to be a $200 ticket handed to you, which is why I'm surprised no one tried open carrying at the State Fair.

[C-dub]

This is why, IMHO, this decision has created a mess and stinks. Maybe he intended to do that and that it would be "fixed" next year. Whichever government entity still owns the property and is responsible for it and should be responsible for informing whoever they lease it to that it cannot be posted. That's the conclusion I think he should have come to.

[cbunt1]

One of the biggest problems with anything to do with 30.06/30/07 is that there has never been a valid "test case" and as such, no legal precedent.

Historically, 30.06 would have been very difficult to have/create a truly valid test case for because to be caught violating 30.06, some other factor would have been in play (i.e. failure to conceal, or outed some other way) making it an impure and clouded question.

Now with 30.07 in play, the opportunity for an unclouded test case, at least against a government entity, is a bit more open. Sure violation of .06 or .07 has become a Class C with a $200 max fine, but it still has the potential to escalate into a Class A with more significant consequences, including the potential of 5 years of ineligibility for LTC.

But without a case prosecuted and acquitted (not charges dropped), or convicted and appealed, it's just saber rattling.

The real problem in picking a test case candidate is that the ideal test case would have a squeaky-clean background, and most of us who have that aren't especially interested in risking that squeaky-clean background on an unknown. And even if the "win" were guaranteed in the long-run, the short term consequences would be significant and expensive.

Successful navigation of the process would require a coordinated effort by a team of people; some to create the incident, some to document said incident, and a legal team prepared to follow it through to its full conclusion, and of course someone has to fund the whole thing.

[Ruark]

Now all we need is someone with the time and money necessary to take the ride and trial to prove the AG correct.

This is the crux of it. You're not going to stand there and have a "line by line analysis and discussion" with an LEO putting you in cuffs and taking you downtown.

[LucasMcCain]

The "ride" is quite likely to be a $200 ticket handed to you, which is why I'm surprised no one tried open carrying at the State Fair.

I really did think about it. The main reason I decided not to was that DPD said anyone open carrying would be charged with something else. They didn't say they would enforce 30.07 signs, but that they would use something else to get around the law. That's what worried me about that particular situation. Fighting a class C misdemeanor in city court is one thing. Fighting an unspecified offense is another. I have a squeaky clean record, and I would like to keep it that way if possible. Also, I'm having to contend with medical bills at the moment; I don't need to add lawyer bills to that headache.

[ScottDLS]

The "ride" is quite likely to be a $200 ticket handed to you, which is why I'm surprised no one tried open carrying at the State Fair.

I really did think about it. The main reason I decided not to was that DPD said anyone open carrying would be charged with something else. They didn't say they would enforce 30.07 signs, but that they would use something else to get around the law. That's what worried me about that particular situation. Fighting a class C misdemeanor in city court is one thing. Fighting an unspecified offense is another. I have a squeaky clean record, and I would like to keep it that way if possible. Also, I'm having to contend with medical bills at the moment; I don't need to add lawyer bills to that headache.

That makes sense. I suspect they were bluffing...but like you, I'm not anxious to test it in that I have other priorities in my life.

For a long time it was really important to me to have a perfect unblemished record with no arrests or charges even if later proven false. Lately I've reconsidered this, not because I've collect any (arrests), but because at some point I feel like standing up against illegal harassment. Sure I could potentially lose or not get a security clearance or job. But I've come to the point where if some unjustified charge is used to deny me an opportunity or clearance then I don't wish to work in that environment. I work in the national security space, but I can just as easily (and have) work for commercial enterprises.