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

[locke_n_load]

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.

That's what I see, and I say it's a deal.

So, next time I will OC my G20 to the FW Zoo.

And you will proceed to take a ride to the station. No deal.

On what charge? 30.05 may not be used because I have a DTP, 30.07 may not be used because their sign is screwed up, plus the city owns the land... I am not carrying the gun to cause alarm, so disorderly does not apply... what else you got?

Cops can't just arrest you for fun. There are consequences for their actions, and they know it.

You really expect every cop to know which signs are enforceable and which ones aren't? It takes the AG a better part of a year to figure that out, doubt the cops care to research that much. And you can be arrested for a class C, but some cops may still think that carry past a sign is a class A as well. And if you were arrested for a class C when it was not enforceable, the DA just drops the charges. The city of Houston allowed Pride to post the public streets with 30.06, think they cared that they weren't enforceable?

[TXBO]

here we go with the police rides again! I'm suprised more people dont "take a ride" for seatbelt violations too!! Cops would much rather arrest, then explain to their boss why they didn't just write a ticket. Cops love extra paperwork!!

I believe a ticket challenge is that the AG is referring to. But thats just my thought...

Fear? I didn't say anything about fear. It's the AG's opinion that a LTC holder would win the case. I'm simply saying you can't win a court case without going to court. You disagree?

[TreyHouston]

I hear ya!

[Soccerdad1995]

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.

That's what I see, and I say it's a deal.

So, next time I will OC my G20 to the FW Zoo.

And you will proceed to take a ride to the station. No deal.

On what charge? 30.05 may not be used because I have a DTP, 30.07 may not be used because their sign is screwed up, plus the city owns the land... I am not carrying the gun to cause alarm, so disorderly does not apply... what else you got?

Cops can't just arrest you for fun. There are consequences for their actions, and they know it.

You really expect every cop to know which signs are enforceable and which ones aren't? It takes the AG a better part of a year to figure that out, doubt the cops care to research that much. And you can be arrested for a class C, but some cops may still think that carry past a sign is a class A as well. And if you were arrested for a class C when it was not enforceable, the DA just drops the charges. The city of Houston allowed Pride to post the public streets with 30.06, think they cared that they weren't enforceable?

Yes, I do expect cops to know whether behavior is legal or illegal before they make an arrest. I don't think that is an extremely high burden. Pretty much everything is legal unless there is a law against it, so the default should be to not issue a citation unless the officer is fairly sure that a law has been violated. If an officer doesn't know what signs are enforceable, they should not be issuing any citations, IMHO. And they definitely should know the difference between something that warrants a ticket and something that warrants an actual arrest.

Is there really a problem with LEO's being this ignorant of the law? I think there are a few bad apples here and there, but the level of stress on this seems overblown, IMHO. Are people similarly worried that they will be thrown in a police car and driven to the station for driving 5 MPH below the speed limit?

[The Annoyed Man]

I'm assuming that the AG opinion does not include gunshow promoters because they are not non-profits?

[allisji]

I am curious what prompted the AG office to examine this scenario. Seems that members of this forum are more concerned about city/government properties used for zoos, rodeos, gun shows, conventions etc. than city/government owned property rented to non-profit organizations used as private offices.

One can read and attempt to make parallels, but it doesn't appear that this opinion was intended to address such things.

[Jusme]

I am curious what prompted the AG office to examine this scenario. Seems that members of this forum are more concerned about city/government properties used for zoos, rodeos, gun shows, conventions etc. than city/government owned property rented to non-profit organizations used as private offices.

One can read and attempt to make parallels, but it doesn't appear that this opinion was intended to address such things.

My concern is the "arms length" phraseology. I can see that gun shows would probably not be exempt under this opinion because the City/County would still have the majority control over decisions made regarding the event. But the Ft. Worth Zoo, in my opinion, might, since it has full autonomy over the day to day control, care, maintenance, personnel, etc. To me it doesn't sound like non-profits are the only excluded groups covered here. But IANAL.

[ELB]

I am curious what prompted the AG office to examine this scenario. ...

Because the Erath County Attorney asked him to. I posted about it when it happened. viewtopic.php?f=7&t=83605&hilit=erath

[locke_n_load]

The non-profit vs for profits posting signage problem - I don't think there is any verbiage in the penal code for firearms that makes a distinction, so an AG opinion about signage for non-profit could probably be applied to for-profits as well.

[locke_n_load]

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.

That's what I see, and I say it's a deal.

So, next time I will OC my G20 to the FW Zoo.

And you will proceed to take a ride to the station. No deal.

On what charge? 30.05 may not be used because I have a DTP, 30.07 may not be used because their sign is screwed up, plus the city owns the land... I am not carrying the gun to cause alarm, so disorderly does not apply... what else you got?

Cops can't just arrest you for fun. There are consequences for their actions, and they know it.

You really expect every cop to know which signs are enforceable and which ones aren't? It takes the AG a better part of a year to figure that out, doubt the cops care to research that much. And you can be arrested for a class C, but some cops may still think that carry past a sign is a class A as well. And if you were arrested for a class C when it was not enforceable, the DA just drops the charges. The city of Houston allowed Pride to post the public streets with 30.06, think they cared that they weren't enforceable?

Yes, I do expect cops to know whether behavior is legal or illegal before they make an arrest. I don't think that is an extremely high burden. Pretty much everything is legal unless there is a law against it, so the default should be to not issue a citation unless the officer is fairly sure that a law has been violated. If an officer doesn't know what signs are enforceable, they should not be issuing any citations, IMHO. And they definitely should know the difference between something that warrants a ticket and something that warrants an actual arrest.

Is there really a problem with LEO's being this ignorant of the law? I think there are a few bad apples here and there, but the level of stress on this seems overblown, IMHO. Are people similarly worried that they will be thrown in a police car and driven to the station for driving 5 MPH below the speed limit?

A lot of class C misdemeanors are arrestable offenses in Texas.

[ScottDLS]

All class C misdemeanors are arrestable offenses in Texas except for the ones that are specifically excepted by law. So what? Passing a 30.06/7 sign posted on government property not otherwise prohibited by law is NOT a class C misdemeanor. It's not an offense at all...kind of like driving 54 in 55 zone. The number of people arrested for class C misdemeanors in Texas is minuscule compared to the number that are committed.

[AJSully421]

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.

That's what I see, and I say it's a deal.

So, next time I will OC my G20 to the FW Zoo.

And you will proceed to take a ride to the station. No deal.

On what charge? 30.05 may not be used because I have a DTP, 30.07 may not be used because their sign is screwed up, plus the city owns the land... I am not carrying the gun to cause alarm, so disorderly does not apply... what else you got?

Cops can't just arrest you for fun. There are consequences for their actions, and they know it.

You really expect every cop to know which signs are enforceable and which ones aren't? It takes the AG a better part of a year to figure that out, doubt the cops care to research that much. And you can be arrested for a class C, but some cops may still think that carry past a sign is a class A as well. And if you were arrested for a class C when it was not enforceable, the DA just drops the charges. The city of Houston allowed Pride to post the public streets with 30.06, think they cared that they weren't enforceable?

Yes, I do expect cops to know whether behavior is legal or illegal before they make an arrest. I don't think that is an extremely high burden. Pretty much everything is legal unless there is a law against it, so the default should be to not issue a citation unless the officer is fairly sure that a law has been violated. If an officer doesn't know what signs are enforceable, they should not be issuing any citations, IMHO. And they definitely should know the difference between something that warrants a ticket and something that warrants an actual arrest.

Is there really a problem with LEO's being this ignorant of the law? I think there are a few bad apples here and there, but the level of stress on this seems overblown, IMHO. Are people similarly worried that they will be thrown in a police car and driven to the station for driving 5 MPH below the speed limit?

A lot of class C misdemeanors are arrestable offenses in Texas.

Every class C is except for speeding and open container, for those two they must cite and release. So... How many people have you heard "taking a ride" for not wearing a seat belt? Not having current registration? Running a stop sign? Following too close? Failure to signal?

It just doesn't happen.

As it applies to this quote tree, if the zoo, on city property, calls the cops... Just explain your rationale, see if you can get them to look up the relevant sections, and even if they still believe that you are wrong, best chances are they will give you several opportunities to leave before being arrested. Personally, I would agree to leave only after being cited for the class c "walking past a valid sign" that is only $200 if you lose. That avoids the arrest, but still gives you a chance to get the case heard and make the city address the issue and find that you can carry at the zoo.

[TexasCajun]

So the AG is making a distinction in an opinion where none exists within the statutes??? Sounds sort of like what the AG in Massachusetts did regarding AR rifles a couple of weeks ago.

Texas penal code clearly states that property owned or leased by a gov't agency cannot be posted with 3.06/.07 notice nor can licensed handgun carry be prohibited unless the property falls under a place prohibited under chapter 46. The statutes don't specify that a gov't agency has to be located onsite for the prohibition to be effective. The AG has effectively created a provision where none exists.

As for the question of who would be responsible for the fine, I would think that the gov't agency that owns the land would be responsible for the conduct of its tenants once they are notified that their tenants are breaking the law. If the tenants are directed to comply with the law & refuse, the gov't agency could then turn around & sue them for the assessed fines. And THAT would end the daycare/educational institution bull that the zoos and rodeos are using as justification.

[mr1337]

LTC holders have a defense to prosecution against 30.05 trespass due to (f)

Code: Select all

(f)  It is a defense to prosecution under this section that:
  (1)  the basis on which entry on the property or land or in the building was forbidden is that entry with a handgun was forbidden; and
  (2)  the person was carrying:
    (A)  a license issued under Subchapter H, Chapter 411, Government Code, to carry a handgun; and
    (B)  a handgun:
      (i)  in a concealed manner; or
      (ii)  in a shoulder or belt holster.

LTC holders can't be charged under 30.06 or 30.07 that is posted on property owned or leased by a gov entity.

Code: Select all

(e)  It is an exception to the application of this section that the property on which the license holder carries a handgun is owned or leased by a governmental entity and is not a premises or other place on which the license holder is prohibited from carrying the handgun under Section 46.03 or 46.035.

However, with 30.05 they could take you all the way to court to make you assert your defense if they really felt like making you waste time, money, and resources to fight it. Would be a very interesting move to open carry knowing that no criminal charges would stick. Keep in mind, though, that the defense in 30.05 means you could still take the ride and even get charged and go to court. Don't think I would want to do that, no matter how "unenforceable" the sign is, although that may be because I'm primarily non-confrontational and I like keeping my money.

Doesn't your LTC get suspended also if you're charged with a Class B misdemeanor?

[Jusme]

So the AG is making a distinction in an opinion where none exists within the statutes??? Sounds sort of like what the AG in Massachusetts did regarding AR rifles a couple of weeks ago.

Texas penal code clearly states that property owned or leased by a gov't agency cannot be posted with 3.06/.07 notice nor can licensed handgun carry be prohibited unless the property falls under a place prohibited under chapter 46. The statutes don't specify that a gov't agency has to be located onsite for the prohibition to be effective. The AG has effectively created a provision where none exists.

As for the question of who would be responsible for the fine, I would think that the gov't agency that owns the land would be responsible for the conduct of its tenants once they are notified that their tenants are breaking the law. If the tenants are directed to comply with the law & refuse, the gov't agency could then turn around & sue them for the assessed fines. And THAT would end the daycare/educational institution bull that the zoos and rodeos are using as justification.

I agree, This should be a simpler fix than what has been put forward. I think that the crux is, that the leasing government entity is held blameless for it's lessees posting unenforceable signage. A codicil, in the lease agreement, even after the original is signed, informing the non-profit, or for profit that any 30.06 30.07 signage would not be enforceable, should suffice. Again IANAL