Child Care

[Keith B]

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.)

46.02 does not apply to LTC holders. 46.03 or 46.035 does. And a child care facility is not an educational institution/school, so that does not apply.

[chasfm11]

I've gotten an email response. They say that the Statutory authority comes for TPC 42, specifically 42.042. I just tried to look that up and cannot find it at http://www.statutes.legis.state.tx.us/d ... /PE.42.htm

Here is their specific quote from the email

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

Subchapter S, Safety Practices

Division 1, Safety Precautions

September 2003

(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 all hours of operation.

If a center would like to post a sign then they need to refer to the requirements below. Many program have had the "no weapons" in their parent handbooks which should suffice for the "written communication".

Emphasis mine.

Before I write back and tell them that I cannot locate their reference, can someone see if it can be found and perhaps share what I did wrong in my search.

Thanks,

Charlie

[parabelum]

This is what I believe they are trying to use (HR code):

http://www.statutes.legis.state.tx.us/D ... /HR.42.htm


However, there is no regulatory language prohibiting lawful possession of firearms that I could find, thus no penalty definitions as well.

So, I would say they (dfps) are trying to bully businesses with this nonsense, and in my opinion I agree with Keith's opinion to send this to AG for his opinion

To me,it appears that authority they are trying to flex is submersed under their highly diluted optic chiasma.

[FCH]

I don't see where 42.02 covers it at all but if you Google Subchapter S you will find this link: https://texreg.sos.state.tx.us/public/r ... div=1&rl=Y

[parabelum]

Is dfps not a state agency?

Looks like they are in violation of the following at the very least:

"GC §411.209. WRONGFUL EXCLUSION OF CONCEALED HANDGUN LICENSE HOLDER.
(a) A state agency or a political subdivision of the state may not provide notice by a communication described by Section 30.06, Penal Code, or by any sign expressly referring to that law or to a concealed handgun license, that a license holder carrying a handgun under the authority of this subchapter is prohibited from entering or remaining on a premises or other place owned or leased by
the governmental entity unless license holders are prohibited from carrying a handgun on the premises or other place by Section 46.03 or 46.035, Penal Code."



http://www.dps.texas.gov/InternetForms/Forms/CHL-16.pdf

[parabelum]

Is dfps not a state agency?

Looks like they are in violation of the following at the very least:

"GC §411.209. WRONGFUL EXCLUSION OF CONCEALED HANDGUN LICENSE HOLDER.
(a) A state agency or a political subdivision of the state may not provide notice by a communication described by Section 30.06, Penal Code, or by any sign expressly referring to that law or to a concealed handgun license, that a license holder carrying a handgun under the authority of this subchapter is prohibited from entering or remaining on a premises or other place owned or leased by
the governmental entity unless license holders are prohibited from carrying a handgun on the premises or other place by Section 46.03 or 46.035, Penal Code."



http://www.dps.texas.gov/InternetForms/Forms/CHL-16.pdf

I will have to retract a bit and correct myself. I understood this section as it applies the OP question incorrectly .

So maybe they are not in direct violation of GC §411.209. , but are rather circumventing this part altogether with their contorted rule.


Appears that while CHL holder would not be in violation of law, dfps would indeed lay the hammer down on the day care facility for non compliance, unless AG steps in and addresses...but that has been already mentioned, so I'm being redundant.

Long day.

[chasfm11]

Appears that while CHL holder would not be in violation of law, dfps would indeed lay the hammer down on the day care facility for non compliance, unless AG steps in and addresses...but that has been already mentioned, so I'm being redundant.

Long day.

This is the crux of the problem. The question that I want to ask but have not was " how would you determine compliance of the child care center regarding your firearms restriction as it specifically relates to concealed carry?" As we here all understand, there is no way to detect CC. My fear has been that they say that the only way to show compliance is a 30.06 sign.

They can say that they are not violating any rules because it is the child care centers, under threat of license revocation, are the ones posting the signs.

[chasfm11]

Update:

I've received an email from CCL (child care licensing) which specifically references both 30.06 and 30.07. While they say that the posting of signs is at the discretion of the child care license holder, providing effective notice is not. I have sent this to a lawyer who is familiar with CCL.

If I'm reading it correctly, our child care unit could provide written notice by publishing the 30.06 and 30.07 language in brochures distributed to parents. The teachers are required to read and understand the instructions provided to parents so effective notice would be given to them as well. For the most part, all child care activities are contained in a locked portion of the building. The question remains as to whether CCL would see those steps as sufficient. Our church has neither the financial resources nor the inclination to pursue this matter. I might be fighting an uphill battle to keep signs from going up.

It appears to me that our situation is far from isolated. Most of the larger churches in our area have child care and they are all required to be licensed by CCL. CCL regulations are very extensive and while they seem very willing to help an organization come into compliance with those regulations, any resistance to them does not go well. I want to talk to other churches about whether they received the same email and what they are doing about it but I'm not at all anxious to create concern where none exists. A couple of people at our church believe that the email from CCL could have been generated to our church by one of our resident antis. I'm not yet ready to buy into to this conspiracy theory.

Like it or not, CCL is effectively re-writing legislation. They claim that this has always been their policy. We have no previous experience with this particular matter but they did force us into a massive compliance effort on a range of other topics last year. Having gone through that, the church leadership is unwilling to do anything but comply on this one.

[Dutch1981]

Great thread, thanks for creating it and providing the various inputs. Our church pre school received one of these emails also, unsolicited. I will be very interested to hear what the agency people say during facility inspections.
-Dutch

[wpmjones]

Hey Charlie -

Conspiracy over. All licensed child care facilities received this email. I run a church with an after-school program and we got it. I carry as often as I can and was pretty upset when I received the information. What they are referring to is listed here (https://texreg.sos.state.tx.us/public/r ... 46&rl=3707) in the Texas Administrative Code. I have no idea if Administrative Code carries the same weight as law or penal code. I'm woefully ignorant.

What I know about CCL policies is that everything revolves around operating hours and designated spaces. As long as you're not in a designated area during operating hours, you're clear. So for me, I just don't go into those areas between 3:30 and 6:00 pm. Harder if you're dealing with an all day childcare, but it sounds like you're pretty well segmented, so you can easily avoid those areas. Since you are a church, operating a childcare, I do know that you will be perfectly legal (regardless of the weight of Administrative Code) when you carry on Sunday mornings.

So if you can play by those rules, you're free and clear.

For me, the after school happens in classrooms and meeting rooms that get used for other stuff. According to TDFPS licensing, you can't use a designated space for anything other than the licensed program during operating hours. So even if a room is completely empty, I can't go in there while carrying during operating hours (according to Administrative Code, not penal code). So if Administrative Code isn't law, then I figure the worse that could happen is that TDFPS could yank my CCL. I hate all licensing rules anyway, but it would shut down my program until I could restructure it into an exempt program (which I'm trying to do anyway because I want to be able to protect the kids in my program if some nut job walks in the door).

So for me, my biggest question is whether or not Administrative Code is the same as law. (ie - if I ignore administrative code 746.3707 but obey all of Penal Code 30 and 46, am I "legal")

[chuck j]

This is an area of inquiry I have wondered about but not wanted to ask . My church (like many) has a school and daycare . Not to mention CHILD CARE during any service by volunteers . Seems like a can of worms as far as carry goes .

[chasfm11]

What I know about CCL policies is that everything revolves around operating hours and designated spaces. As long as you're not in a designated area during operating hours, you're clear. So for me, I just don't go into those areas between 3:30 and 6:00 pm. Harder if you're dealing with an all day childcare, but it sounds like you're pretty well segmented, so you can easily avoid those areas. Since you are a church, operating a childcare, I do know that you will be perfectly legal (regardless of the weight of Administrative Code) when you carry on Sunday mornings.

So for me, my biggest question is whether or not Administrative Code is the same as law. (ie - if I ignore administrative code 746.3707 but obey all of Penal Code 30 and 46, am I "legal")

I'm not sure we are that clean. All the child care classrooms are in a locked wing and that is good. The bad news is that they take the kids across the main Atrium of the church to our Fellowship Hall (gym) for their indoor play periods. If we are forced to put up signs, they will be at every church entrance as all of them lead to Fellowship Hall. Putting up and taking down 9 sets of signs even for just the weekend is not going to go well. At a minimum, it would leave the church 30.06 posted all week days, 24 hours a day.

It comes back to compliance and how they measure it. I've asked the lawyer that we consulted whether she thought that providing written notice in the documents to the parents (and by default the teachers) in the child care would past muster of CCL compliance. It may come down to how well they understand the Fellowship Hall use.

I'm less concerned about the administrative code comparison to the TPC and more worried about a non-compliance ruling and its affect on the child care license. I think that there is no way in you-know-where that they can enforce their ruling against off-duty LEO carry but they could yank the license if they didn't feel that organization provided the necessary steps on that matter.

[wpmjones]

TDFPS can't require you to post 30.06 and/or 30.07 signs. The only way you would violate the CCL is if someone was found to be in a designated space during operating hours. I'm very curious to know if you gym is a designated space. If it isn't, you shouldn't technically be using it for the kids. But you won't lose a license over that. They will tell you to either designate it (requires a whole new inspection) or to stop using it.

So, if you were to send some kind of literature home with parents that clearly states that according to Texas Administrative Code 746.3707, firearms aren't allowed in the childcare, I think you're covered. If it happens, you can say that you informed the parents and then it's on them, not you.

The important thing to remember here is that nothing at all has changed as it relates to CCL. Firearms weren't allowed (according to TDFPS rules) and still aren't. For me, the only difference is that I was unaware of this rule before and now I know. But there are no new requirements that you inform anyone. It's just a question of what steps you need to take to make sure no one brings a firearm into the childcare. If you know who carries and can inform them directly, great. If not, a letter to parents and staff ought to suffice.

Does that make sense?

[chasfm11]

TDFPS can't require you to post 30.06 and/or 30.07 signs. The only way you would violate the CCL is if someone was found to be in a designated space during operating hours. I'm very curious to know if you gym is a designated space. If it isn't, you shouldn't technically be using it for the kids. But you won't lose a license over that. They will tell you to either designate it (requires a whole new inspection) or to stop using it.

So, if you were to send some kind of literature home with parents that clearly states that according to Texas Administrative Code 746.3707, firearms aren't allowed in the childcare, I think you're covered. If it happens, you can say that you informed the parents and then it's on them, not you.

The important thing to remember here is that nothing at all has changed as it relates to CCL. Firearms weren't allowed (according to TDFPS rules) and still aren't. For me, the only difference is that I was unaware of this rule before and now I know. But there are no new requirements that you inform anyone. It's just a question of what steps you need to take to make sure no one brings a firearm into the childcare. If you know who carries and can inform them directly, great. If not, a letter to parents and staff ought to suffice.

Does that make sense?

Thank you for your insight. I've never dealt with the child care part of our operation and am learning as I go. I never heard the term "designated space" before and will ask some questions.

The email says what you did - that firearms were never allowed before. That is why I keep asking the question about how compliance with that previous policy/restriction was determined in the past. I'm not aware of anyone who would have carried in or even near the child care section itself but we do have LTCs in the congregation and they do carry in the church when the kids are present. We have no signs or policies anywhere in the church today that I know about. My concern is that CCL will start looking more earnestly than in the past and I'm not sure how, other than the notice to parents, we can be prepared for that.

I think that the church will elect to given an OC written notice with a business card. The board is not in favor of allowing OC in the services or even in the class rooms for that matter. My fear is that having a policy which limits any restriction to only OC at the church level will lead to a set a questions with CCL that will be hard to answer. CCL also said what you did - that they will not force signs. But they supplied both 30.06 and 30.07 wording in a response email.

[pt145ss]

where does prememtion fit in? Only the legislature can regulate the carry and sale of handguns.

I see some are trying to draw correlations between CCL and TABC. I think there may be a vast difference in the two because the legislature obviously gives some control in refernce to the carrying of handguns to the TABC. I do not see that the legislature has given the CCL such control.

Government entities can only make rules within the general guidlines of legislature. Right?