Child Care

[chasfm11]

I'm in the middle of discussions at our church which runs an early child care facility. They have received an email from the Texas Department of Family and Protective Services. Included in that email is the following.

Information on the Open Carry Law 84th Session effective:
January 1, 2016
SB 273 & House Bill 910
Notice requirements of Texas Penal Code Title 7 Chapter 30; Sections 30.06 and 30.07 Licensed Child Care Centers, School-Age and Before or After-School Programs, and Homes will still fall under the following standards:

746.3707 Are firearms or other weapons allowed at my child-care center?

(a) Law enforcement officials who are trained and certified to carry a firearm on duty may have firearms or ammunition on the premises of the child-care center.

(b) For all other persons, firearms, hunting knives, bows and arrows, and other weapons are prohibited on the premises of the child-care center, unless the child-care center is also your residence.

(c) Firearms, hunting knives, bows and arrows, and other weapons kept on the premises of a child-care center located in your home must remain in a locked cabinet inaccessible to children during all hours of operation.

(d) Ammunition must be kept in a separate locked cabinet and inaccessible to children during your hours of operation.

One could easily draw the conclusion that is necessary for the church to now post both 30.06 and 30.07 signs and some in the church believe that is necessary. The childcare area is sealed off to a point but still accessible through the Sanctuary.

Thoughts?

[chasfm11]

This is another part of email

Talking Points for providers:

1. Generally speaking, there are no changes with regard to whether firearms are allowed in child care operations as a result of the new open carry law.

2. Are day cares excluded from the new open carry law?

Yes, they are excluded. Firearms are prohibited (concealed or open carry) unless the individual is a law enforcement official who is trained and certified to carry a firearm on duty may have firearms or ammunition on the premises of the operation.

[JP171]

it seems to me that that prohibition is false as its not in the penal code and not referenced anywhere under 411, they may be able to make a case for pulling what ever daycare license or certification the church has but that's about it. there is no criminal act there, looks like more agency legislation cause we are exempt from laws we don't like

[chasfm11]

it seems to me that that prohibition is false as its not in the penal code and not referenced anywhere under 411, they may be able to make a case for pulling what ever daycare license or certification the church has but that's about it. there is no criminal act there, looks like more agency legislation cause we are exempt from laws we don't like

I spoke with pastor this morning. I've previously spoken with the church president. Neither of them want to post anything. But loosing the license to host childcare is not an option. The daycare is open to periodic and surprise inspections and they have been written up for things like the mulch not being thick enough around the playground equipment in past inspections.

According to the email, none of this is new but the subject of concealed carry has never come up in any of the past and very stringent reviews. Based on the date on the email, it looks like the State plans to enforce because of open carry. The church does not want to be the test case on that subject during an inspection.

It is very unlikely that this email sent only to our church's school. I'm seeking others who might have also received it. Many of the churches in our area run early childhood programs like ours (stops with kindergarten). I'm also seeking confirmation that the email is at odds with the prescribed DPS education through LTC instructors.

Charlie

[JP171]

Charlie, I would check with legal counsel I really don't think they have cause for action against the license either but I am not a legal beagle so, you know but I think they are blowing smoke and like I said trying to use rules as a big stick that have no bearing on licensed people specially since there is nothing in the 411 chapter that says a single thing about day care or preschools unless they are true educational institutions and a day care at a church doesn't meet that, I would I think forward this thru legal counsel and get an AG opinion thru the system

[Lynyrd]

Here is another post from 2013 dealing with church/day care centers.

http://www.texaschlforum.com/viewtopic.php?f=7&t=64620

[LucasMcCain]

I'm not a lawyer, but I would strongly encourage you to contact one regarding this issue. However, this is my understanding:

If childcare locations are "off limits" areas for carrying, then you don't have to post signage. If you have to post signage, then it is at the discretion of those who make those decisions for your childcare or church as to whether or not you wish to allow licensed carry. I am unaware of any law that prohibits licensed carry at childcare locations. Schools are definitely off limits, and they do not have to post signage. Still, as I do not have children this has not been an issue for me personally.

Again, I am not a lawyer. You should really ask a lawyer about this. You can also write the Attorney General and ask. I hope this helps.

[baldeagle]

Here's the entire subsection of Texas Penal Code 46. I see NOTHING in here that mentions child care facilities.

Sec. 46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER. (a) A license holder commits an offense if the license holder carries a handgun on or about the license holder's person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally displays the handgun in plain view of another person in a public place. It is an exception to the application of this subsection that the handgun was partially or wholly visible but was carried in a shoulder or belt holster by the license holder.

Text of subsection as added by Acts 2015, 84th Leg., R.S., Ch. 437 (H.B. 910), Sec. 47


(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 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.

Text of subsection as added by Acts 2015, 84th Leg., R.S., Ch. 438 (S.B. 11), Sec. 4



Text of subsection effective on August 01, 2016

(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.

Text of subsection effective on August 01, 2016

(a-2) Notwithstanding Subsection (a) or Section 46.03(a), a license holder commits an offense if the license holder carries a handgun on the campus of a private or independent institution of higher education in this state that has established rules, regulations, or other provisions prohibiting license holders from carrying handguns pursuant to Section 411.2031(e), Government Code, or on the grounds or building on which an activity sponsored by such an institution is being conducted, or in a passenger transportation vehicle of such an institution, regardless of whether the handgun is concealed, provided the institution gives effective notice under Section 30.06.

Text of subsection effective on August 01, 2016

(a-3) Notwithstanding Subsection (a) or Section 46.03(a), a license holder commits an offense if the license holder intentionally carries a concealed handgun on a portion of a premises located on the campus of an institution of higher education in this state on which the carrying of a concealed handgun is prohibited by rules, regulations, or other provisions established under Section 411.2031(d-1), Government Code, provided the institution gives effective notice under Section 30.06 with respect to that portion.
(b) A license holder commits an offense if the license holder intentionally, knowingly, or recklessly carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, regardless of whether the handgun is concealed or carried in a shoulder or belt holster, on or about the license holder's person:
(1) on the premises of a business that has a permit or license issued under Chapter 25, 28, 32, 69, or 74, Alcoholic Beverage Code, if the business derives 51 percent or more of its income from the sale or service of alcoholic beverages for on-premises consumption, as determined by the Texas Alcoholic Beverage Commission under Section 104.06, Alcoholic Beverage Code;
(2) 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;
(3) on the premises of a correctional facility;
(4) on the premises of a hospital licensed under Chapter 241, Health and Safety Code, or on the premises of a nursing facility licensed under Chapter 242, Health and Safety Code, unless the license holder has written authorization of the hospital or nursing facility administration, as appropriate;
(5) in an amusement park; or
(6) on the premises of a church, synagogue, or other established place of religious worship.
(c) A license holder commits an offense if the license holder intentionally, knowingly, or recklessly carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, regardless of whether the handgun is concealed or carried in a shoulder or belt holster, in the room or rooms where a meeting of a governmental entity is held and if the meeting is an open meeting subject to Chapter 551, Government Code, and the entity provided notice as required by that chapter.
(d) A license holder commits an offense if, while intoxicated, the license holder carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, regardless of whether the handgun is concealed or carried in a shoulder or belt holster.
(e) A license holder who is licensed as a security officer under Chapter 1702, Occupations Code, and employed as a security officer commits an offense if, while in the course and scope of the security officer's employment, the security officer violates a provision of Subchapter H, Chapter 411, Government Code.
(f) In this section:
(1) "Amusement park" means a permanent indoor or outdoor facility or park where amusement rides are available for use by the public that is located in a county with a population of more than one million, encompasses at least 75 acres in surface area, is enclosed with access only through controlled entries, is open for operation more than 120 days in each calendar year, and has security guards on the premises at all times. The term does not include any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area.
(1-a) "Institution of higher education" and "private or independent institution of higher education" have the meanings assigned by Section 61.003, Education Code.
(2) "License holder" means a person licensed to carry a handgun under Subchapter H, Chapter 411, Government Code.
(3) "Premises" means a building or a portion of a building. The term does not include any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area.

Text of subsection as amended by Acts 2015, 84th Leg., R.S., Ch. 437 (H.B. 910), Sec. 47

(g) An offense under this section is a Class A misdemeanor, unless the offense is committed under Subsection (b)(1) or (b)(3), in which event the offense is a felony of the third degree.

Text of subsection as amended by Acts 2015, 84th Leg., R.S., Ch. 438 (S.B. 11), Sec. 4

[Keith B]

Unlike in some states where 'Child care' facilities are by law off limits, in Texas they are not prohibited for carry in and of themselves. However, it appears that the governing body of the state feels they can prohibit firearms by their rules. What this would more than likely mean is while the person carrying could not be prosecuted, the state agency would possibly try to pull the license from the facility if it was discovered someone had carried there. This is one that needs to go to the AG for an opinion in MY opinion.

[chasfm11]

Unlike in some states where 'Child care' facilities are by law off limits, in Texas they are not prohibited for carry in and of themselves. However, it appears that the governing body of the state feels they can prohibit firearms by their rules. What this would more than likely mean is while the person carrying could not be prosecuted, the state agency would possibly try to pull the license from the facility if it was discovered someone had carried there. This is one that needs to go to the AG for an opinion in MY opinion.

Are there alternatives? At first blush, it would seem that DPS shouldn't be happy with another arm of the State making up rules for the program that they administer. The DPS has put out instructor material, for example, that the emails from CPS seem to contradict.

If it does have to go to the AG, how could that be accomplished? Can I, as a Texas citizen contact them?

Thanks,

Charlie

[KLB]

Penal Code 46.03(a):


So is a child-care facility a school? Some surely are. Some few maybe not. I would not risk criminal trespass on the distinction between a child-care facility and a school.

Penal Code 46.035:


You can't carry on the premises of a church. Is a church-operated preschool part of the premises of a church? Again, I would not risk a criminal trespass charge on that issue.

[rotor]

Penal Code 46.03(a):


So is a child-care facility a school? Some surely are. Some few maybe not. I would not risk criminal trespass on the distinction between a child-care facility and a school.

Penal Code 46.035:


You can't carry on the premises of a church. Is a church-operated preschool part of the premises of a church? Again, I would not risk a criminal trespass charge on that issue.

KLB, you should read down to section (i) and you would realize that you can carry unless given 30.06 or 30.07 notice

[Keith B]

Unlike in some states where 'Child care' facilities are by law off limits, in Texas they are not prohibited for carry in and of themselves. However, it appears that the governing body of the state feels they can prohibit firearms by their rules. What this would more than likely mean is while the person carrying could not be prosecuted, the state agency would possibly try to pull the license from the facility if it was discovered someone had carried there. This is one that needs to go to the AG for an opinion in MY opinion.

Are there alternatives? At first blush, it would seem that DPS shouldn't be happy with another arm of the State making up rules for the program that they administer. The DPS has put out instructor material, for example, that the emails from CPS seem to contradict.

If it does have to go to the AG, how could that be accomplished? Can I, as a Texas citizen contact them?

Thanks,

Charlie

DPS does not make the statutes, they just enforce them. It is no different than TABC saying the onus is on the retailer to check for a LTC if they see an OC in their store, or risk losing their license if the carrier is unlicensed.

Bottom line, I would go back to the head of the agency that issues the licenses and ask them where in the statutes it states they can prohibit an LTC from carrying.

[chasfm11]

Charlie
Bottom line, I would go back to the head of the agency that issues the licenses and ask them where in the statutes it states they can prohibit an LTC from carrying.

There was an address on the email for questions and I've written to it, asking for the statutory basis for their LTC limitations. I'm not optimistic but will follow up if they respond. Separately, we have contact with a lawyer who used to work for the organization and hope to contact that person for guidance.

Your reference to TABC seems very appropriate. On a separate thread, I asked a question about how TABC could raise concern among alcohol license holders through the incident reporting process. Both TABC and CPS would be difficult to address through last September's law implementation but they each could have a greater impact on LTC than any other governmental entity has. This doesn't seem like a resolution that will come easily from the grass roots. There also seems to be no doubt the the email from CPS is another piece of fallout from open carry.

[KLB]

KLB, you should read down to section (i) and you would realize that you can carry unless given 30.06 or 30.07 notice

I stand corrected as to 46.035 (churches, etc.)

I did not find a parallel provision in 46.02 (schools, etc.)