By: CJ Grisham, President, Open Carry Texas
Today, Representative James White filed HB 1911, his version of an unlicensed carry bill – constitutional carry. Representative Jonathan Stickland’s HB 375 was filed several weeks ago. HB 375 has been heavily influenced and pushed by Open Carry Texas and Lonestar Gun Rights. HB 1911 is a bill heavily influenced and pushed by Texas Carry and the Texas State Rifle Association, the NRA’s state affiliate. While both bills remove the license requirements to keep and bear arms in Texas, there are some glaring problems with HB 1911. In our estimation, HB 375 – while not perfect – is a much stronger constitutional carry bill. In this post, we will explain the differences in the two bills, good and bad.
The most glaring difference between the two bills is how it defines who is “authorized” to carry a handgun in accordance with the constitution. HB 375 is much closer to our constitutional principles by allowing anyone who is not otherwise prohibited by law from possessing a firearm to legally carry that firearm. This means that under HB 375, those with felony, gun-related, domestic violence or other convictions that prohibit the ownership or possession of a firearm will not be able to carry in Texas without a license (nor with one). HB 1911 only allows “authorized persons” to carry without a license. The bill defines an “authorized person” as a person who meets the requirements under Sections 411.172(a)(1)-(13) of the Government Code. These requirements are as follows:
- Be a legal resident of the state for six months
- Be at least 21 years of age
- Not a convicted felon
- Not be CHARGED with a class A or B misdemeanor, equivalent or higher offense, or an offense of “disorderly conduct” within the past five years which includes
- “abusive, indecent, profane, or vulgar language” that is inciteful
- “offensive gestures” that are inciteful
- creating, by chemical means, a noxious and unreasonable odor in a public place
- threatening someone in an offensive manner
- unreasonable noises
- fighting in public
- discharging a firearm in public other than a range
- display of a firearm “in a manner calculated to cause alarm”
- discharging a firearm on a public road
- exposing your anus or genitals in public where someone might be offended or alarmed
In other words, you have no constitutional rights if you are convicted of using bad language or flipping someone the bird. You have no constitutional rights if you create unreasonable noises. And this isn’t just a conviction within the past five years only. A simple arrest means you have no rights, whether or not charges are ever even filed. To be fair, there is no due process in either bill. This simply isn’t addressed. Only two states prevent people convicted of minor, nonviolent “crimes” from carrying a firearm in self-defense – Texas and California. HB 375 fixes this by allowing anyone that is not a prohibited person from carrying. To get a license, one must pass more strict guidelines as noted above. However, the benefit to having more strict guidelines for the licensing is that a license triggers certain extra privileges: skipping the line to enter the capitol, purchasing a firearm from an FFL without going through the BGC, etc.
Critics will argue that if you are convicted of any crime, you are therefore not a law-abiding citizen. However, this mindset ignores several realities of our justice system. The first is that many people are arrested having never committed a crime. These people are charged with all manner of crimes, including felonies, that they didn’t commit. However, as if often the case, citizens can’t always afford for fight for their innocence.
The state can charge you with anything and can afford to fight against you to the ends of the earth with your tax money. The people charged, rightly or wrongly, must pay for their own defense out of their own pockets, unless they qualify for a public defender. Most public defenders are not trial attorneys, but plea bargain attorneys. In order to avoid going bankrupt, many of these innocent people who are charged with felonies are pressured to accept pleas of lesser offenses, like class a or b misdemeanors. In fact, when I was falsely arrested for lawfully carrying a firearm, prosecutors tried to get me to plea to several “lesser” offenses, but each of them no less than a class b misdemeanor.
Many times, defendants are offered probation in exchange for a guilty plea. Prosecutors are re-elected by obtaining as many guilty verdicts as possible and will strongly push for these plea deals while scaring defendants by telling them that if they go to court they face several years in prison. They will be convinced the jury will find them guilty. A recent example of this is the self-defense case of Marcus Weldon up in Detroit. They tried every plea bargain under the sun and prosecutors promised him 30 years in prison if he didn’t accept. He held firm and was eventually acquitted of all felony charges against him. Unfortunately, many people – especially those of lower income – will take these plea deals even if they were completely innocent of any crime because they either can’t afford or think they will be found guilty anyway. HB 1911 does not offer constitutional protection to those people.
HB 375 removes certain places that municipalities are authorized to prevent unlicensed carry. Those places include public parks, political rallies, parades, or official political meetings. HB 1911 does not change a single place that municipalities have the option to ban unlicensed carry.
HB 375 adds a section to Penal Code 46.15 to make clear that licenses aren’t required: “Notwithstanding any other law to the contrary, a person who is not otherwise prohibited by law from possessing a firearm shall not be required to obtain any license to carry a handgun as a condition for carrying a handgun.” This is an important addition because it spells out in no uncertain terms what constitutional carry means.
HB 375 finally defines “intoxicated” under conditions upon which an individual commits an offense by tying it to the definition under Penal Code Section 49.01. HB 1911 leaves the confusing and non-defined word “intoxicated” up to interpretation by an officer. Literally, some in law enforcement have interpreted this to mean drinking a single beer or glass of wine at dinner.
HB 375 allows all persons who are not “prohibited” from owning or possessing a firearm to carry on a college campus. HB 1911 maintains the licensing requirement for campus carry.
HB 375 adds in the Dutton/Huffines amendment that codifies the 4th amendment protections of gun owners. It makes clear that “The mere possession or carrying of a handgun, openly or concealed, with or without a license issued under this subchapter, shall not constitute reasonable belief for a peace officer to disarm or detain an otherwise law-abiding person.” This is an important protection for Texans that passed both the House and Senate last session, but was voted down in conference committee due to a minor wording conflict. However, both chambers made clear in the legislative record that law enforcement could not detain gun owners based solely on open carry in passing the open carry bill. Thankfully, most departments recognized that they had no authority to ID open carriers, but a few anecdotal incidents have occurred since open carry became legal.
HB 375 repeals the following laws that are not repealed in HB 1911:
(1) Section 411.205, Government Code (the requirement to present a license when required to ID);
(2) Section 46.02(a-1), Penal Code (prohibition against open carry of a handgun in a vehicle);
(3) Section 46.03(f), Penal Code (removes license only non-defense for entering a prohibited business);
(4) Sections 46.035 (c) and (d), Penal Code (these sections are moved to Section 46.035(b); and
(5) Section 46.035(h-1), Penal Code, as added by
Chapter 1222 (H.B. 2300), Acts of the 80th Legislature, Regular
Session, 2007 (this is simplified under HB 375 and only pertains to judges and district attorneys).
There are several sections that both bills omit, though they are different in each bill. HB 1911 is more comprehensive in combing Texas codes and amending them. With the licensing of handguns being mentioned in so many laws, it nearly takes a detective to find all the branches where the legislatures over the years have sought ways to infringe on our rights. HB 375 fixes Sections 411.2032 of the government code, but doesn’t address HB 1911’s fixes to Section 506.001 of the Business and Commerce Code; Section 51.220 of the Education Code, Section 231.302 of the Family Code; Sections 411.190, 411.201, 411.203, 411.206, and 411.209 of the Government Code; Section 12.092 of the Health and Safety Code; Section 42.042 of the Human Resources Code; Section 52.062 of the Labor Code; Section 191.010 of the Local Government Code; and Section 284.001 of the Parks and Wildlife Code. These omissions can be easily fixed through the amendment process in committee.
Both HB 375 and HB 1911 roll unlicensed carry into the 30.06 and 30.07 criminal trespass provisions. If a place has lawfully posted signage under those sections, they would apply to both licensed and unlicensed carriers under each bill.
Both HB 375 and HB 1911 create a confusing and dangerous patchwork of places where gun owners can carry a firearm. Under each bill, it is still a crime to carry a firearm, licensed or not, into a 51% establishment (a business that derives 51% or more of its sales from on-premises alcohol consumption). However, neither bill makes concessions for unlicensed carry at other businesses that sell alcohol for on- or off-premises consumption where on-premises consumption of alcohol constitutes less than 51% of revenue. In other words, places like Wal-Mart, gas stations, liquor stores, sit-down restaurants or movie theaters would be off-limits to unlicensed carry. It would still be legal for carry into those places if the person has a license, however.
In the end, I believe that HB 375 is a much better bill. The problems with it can easily solved with amendments to add the missing sections. There is no reason that non-violent, minor offenses should result in the loss of a fundamental right. HB 1911 creates too many disqualifiers for lawful carry without a license. There are two major factors that we rely on in supporting one bill over another (not that we oppose the other): which bill allows for more lawful carry by more Texans and which bill offers protections for those carrying lawfully. HB 375 does that. We don’t base our decisions on which bill “stands a better chance” by settling for inferiority over constitutional policy. Neither bill is perfect and we will always support any bill that moves in the right direction, but if we’re going to call it constitutional carry, we shouldn’t be preventing people “convicted” of minor offenses – like flipping the bird to someone – from carrying lawfully. Besides California, we are the only state doing that. This is Texas! Let’s act like it!
Summary: as long as a Non-Profit entity is not contracted to perform a government function, the government entity is not the decision maker over the building, or there is not another government entity inside the building, a Non-Profit that is exclusively leasing government property MAY post notice under 30.06 or 30.07. Here is the text of the decision in response to Erath County Judge Lisa Pence:
Dear Ms. Pence:
You explain that in your county “at least two non-profit agencies … have offices located on land owned” by a city. 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.”
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. You base your questions on section 411.209 of the Government Code and sections 30.06 and 30.07 of the Penal Code, and we will address each of these provisions in tum.
The Eighty-fourth Legislature enacted section 411.209 of the Government Code, which prohibits state agencies and political subdivisions from providing notice that a licensed handgun carrier is prohibited from entry to a location other than those articulated in the Penal Code:
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.
TEX. Gov’T CODE§ 411.209(a). A state agency or political subdivision found in violation of this provision is ‘liable for a civil penalty administered by the attorney general. Id. § 41 l .209(b )-(h).
Relevant to your request, the prohibition in subsection 41 l.209(a) applies only to “a state agency or political subdivision of the state.” Id. § 41 l.209(a). Section 411.209 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 its offices. If a private entity is operating jointly with a governmental entity or has been hired by the governmental entity to perform certain governmental functions, fact questions could arise about which entity effectively posted a notice prohibiting the carrying of guns. However, under the facts you describe, the private, nonprofit
entity appears to have an arms-length agreement to lease city property and is not otherwise affiliated with the city. See Request Letter at 1. “As a general rule, a lessor relinquishes possession
or occupancy of the premises to the lessee.” Levesque v. Wilkens, 57 S.W.3d 499, 504 (Tex. App.-Houston [14th Dist.] 2001, no pet.). In such circumstances, section 411.209 does not apply to a city that leases property to a nonprofit entity that provides notice that a license holder carrying a handgun is prohibited from entry. As long as the state agency or political subdivision leasing the property to the nonprofit 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. See TEX. Gov’T CODE § 41 l.209(a).
Whether sections 30.06 and 30.07 of the Penal Code make it an offense for a person carrying a handgun to enter property leased by a nonprofit entity from a state agency or political
subdivision is a separate question. See Request Letter at 1. Subsections 30.06(a) and 30.07(a) make it an offense for a license holder to carry a handgun, either concealed or openly, “on property of another without effective consent,” when the license holder “received notice that entry on the property by a license holder … was forbidden.” TEX. PENAL CODE §§ 30.06(a), .07(a). 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 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.” Id.§ 30.06(e); see id.§ 30.07(e). We must therefore determine whether these exceptions to the offenses apply to property that is owned by a governmental entity but leased to a private, nonprofit organization.
When the Legislature enacted subsection 30.06(e), its stated focus was on local
governmental entities that were prohibiting concealed handguns from public places. See House Research Org., Bill Analysis, Tex. S.B. 501, 78th Leg., R.S. (May 9, 2003) at 4 (“A city’s ban on
concealed handguns in public buildings could make it needlessly difficult for a person lawfully carrying a concealed handgun to perform necessary tasks such as paying a utility bill or renewing
a car registration.”). Nothing in the text of the statute itself nor in the legislative history suggests that the Legislature considered whether private entities that leased property from a governmental
entity were required to allow the carrying of handguns on the property that they lease. The fact that the Legislature created a civil penalty in section 411.209 of the Government Code only for state agencies and political subdivisions provides some contextual support for the idea that the Legislature may not have intended to require private lessees of governmental property to allow handguns on that property. See TEX. Gov’T CODE§ 41 l.209(a).
Nevertheless, when construing statutes, courts recognize that the words the Legislature chooses are “the surest guide to legislative intent.” Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex. 1999). When possible, courts will discern legislative intent from the plain meaning of the words chosen, and only when words are ambiguous will courts “resort to rules of construction or extrinsic aids.” Entergy Gulf States, Inc., 282 S.W.3d 433, 437 (Tex. 2009). The plain language of subsections 30.06(e) and 30.07(e) make an exception ifthe property on which the license holder carries a gun “is owned or leased by a governmental entity.” TEX.
PENAL CODE§§ 30.06(e), .07(e). 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. See Entergy Gulf States, Inc., 282 S.W.3d at 443 (noting that courts “refrain from rewriting text that lawmakers chose”). 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)
Temple, TX, July 11, 2016 – In light of the abhorrent tragedy that occurred in Dallas last week, we would like to address the current push to change or abolish our right to keep and bear arms. It goes without saying that our condolences are with the families and victims. Since Texas became an independent nation in 1836, the right to bear long arms has been a lawful act. This is nothing new and has nothing to do with the recently passed handgun open carry law. To suggest that open carry had any role in the shooting, the response, or the aftermath is unsupported by the facts and is both wrong and deplorable.
The fact is that there is ample evidence on social media that law enforcement was not confused during the shooting about who was a good guy and who was a bad guy with a gun. Video evidence is clear that officers felt quite at ease during the incident in the presence of open carriers. Once an individual was identified, he promptly turned himself in to assure the public that he wasn’t a threat. We applaud his actions, but condemn Dallas PD for continuing to hold his lawfully possessed firearm even after clearing him.
In light of this incident, Open Carry Texas (OCT) has several suggestions for both law enforcement and open carriers should a similar, highly unlikely event ever occur again.
We applaud law enforcement for the professional and competent manner in which they quickly identified the source of the mayhem and their bravery in confronting it. We reject the notion, as posited in the media by the Chief and Mayor, that officers aren’t intelligent enough to tell the difference between a “good guy and a bad guy.” What is the difference between law enforcement treating the public this way and the public asking how they are supposed to tell the difference between a “good cop and a bad cop.” Both are offensive to hear, but both are equally accurate. It’s a simple concept to tell the difference: the good guys are shooting in the same direction as law enforcement (or not at all) and the bad guys are shooting at them. The good guy responds to police orders. The bad guy does not. Over the past three years, OCT has had numerous encounters with law enforcement around the state, from big cities to small rural towns. These officers have demonstrated time and time again the ability to tell the difference. If Soldiers in combat can do it successfully, we have full faith and confidence that law enforcement officers can as well.
Even suggesting that open carry played a factor, this is attributed to how some in law enforcement view a law abiding citizenry. All too often, we are viewed as a threat or the enemy. There is a perception that only law enforcement should be allowed to carry a weapon in public. This creates animosity and distrust between the law enforcement and gun rights communities. This must change. Law enforcement departments must experience a paradigm shift in their mentality and accept gun owners as an ally, not an adversary. Throughout history, there are stories of law abiding citizens helping law enforcement suppress a threats and having their back. We call on law enforcement to return to this model. There is not an infinite number of police in this country and working with the citizenry instead of against them only results in safer communities. They must stop viewing law abiding citizens with a firearm as suspects.
We applaud Mark Hughes for immediately making himself available to law enforcement as soon as he found out he was considered a suspect. While he disagree with his decision to voluntarily surrender his firearm and DPD keeping his firearm, we praise his good judgment in defusing what could have been a deadly situation. We would like to offer a few suggestions for open carriers in these instances.
First, if carrying a handgun, keep it in a holster and keep your hands off of it unless needed. If you are carrying a long arm, rifle or shotgun, carry it in a non-threatening manner. We suggest carrying it on a single point sling to the side or on your back. This more easily puts people nearby at greater ease.
Second, if you find yourself in the vicinity of an active shooter and your life is not in danger, do not get involved, if possible. Obviously, society is filled with veterans and others whose personal values and honor require that they run towards gun shots instead of against them, but make sure you understand the risks in doing so and are cognizant of those around you. Coordinate with law enforcement if at all possible and obey orders from law enforcement officers.
Third, if your life is in immediate danger, defend yourself with judicious marksmanship. The risk at that point of being shot by law enforcement is no different than the risk of being shot by an active shooter. Once the threat is neutralized, immediately go back to a non-threatening posture by either holstering your weapon if you have a handgun or placing it on your back if you have a rifle. If/when law enforcement arrives, it is a good idea to work with them as they survey the area to ascertain what happened and who is at fault. However, it is important to realize that if you are taken into custody as a potential suspect, it may be a good idea to stop talking and contact your attorney. We encourage our members and all gun owners to obtain gun owner legal protection – like SelfDefenseFund.com or Firearm Legal Protection – so they are protected under such circumstances.
OCT is an organization dedicated to the safe and legal carry of firearms in the State of Texas in accordance with the United States and Texas Constitution and applicable laws.
About Open Carry Texas: Our purpose is to 1) educate all Texans about their right to carry in a safe manner; 2) to condition Texans to feel safe around law-abiding citizens that choose to carry them; 3) encourage our elected officials to pass constitutional carry legislation for all firearms; and 4) foster a cooperative relationship with local law enforcement in the furtherance of these goals with an eye towards preventing negative encounters.
You heard that right. The Supreme Court recently ruled in a 5-3 vote that Texas’ laws to ensure the safety of women desiring to kill their unborn babies were unconstitutional. The Whole Woman’s Health v. Hellerstedt case may have been a case about so-called abortion rights, but the court inadvertently gave gun rights advocates something to cheer about.
The majority Hellerstedt decision, in responding to the dissenting justice’s arguments, contended that the law requiring certain sanitary and admittance procedures be followed for abortion clinics to perform their grotesque acts of infanticide could not be based on the Kermit Gosnell scandal (click the link for information about that since we won’t go into detail here), the doctor convicted for murdering three infants who were born alive in a botched abortion. The court said that, in essence, you can’t point to the bad behavior of some to punish the rest.
Gosnell’s behavior was terribly wrong. But there is no reason to believe that an extra layer of regulation would have affected that behavior. Determined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations. Regardless, Gosnell’s deplorable crimes could escape detection only because his facility went uninspected for more than 15 years…Pre-existing Texas law already contained numerous detailed regulations covering abortion facilities, including a requirement that facilities be inspected at least annually…The record contains nothing to suggest that H. B. 2 would be more effective than pre-existing Texas law at deterring wrongdoers like Gosnell from criminal behavior.
Any future gun control cases could easily reference this case to argue that deterring people who use guns in criminal activities isn’t assured through more gun control. Any so called “assault weapons ban” would be especially vulnerable since they are used in such a minuscule number of shootings. The “gun show loophole” is likewise suspect since criminals intent on buying and selling guns won’t submit to BGC anyway. You don’t stop criminal behavior by punishing law abiding citizens.
The fact is that passing more laws aren’t going to deter someone hellbent on committing heinous crimes. However, those same laws will make it more difficult for law abiding citizens to defend themselves against such people. Without realizing it, SCOTUS just handed us a minor victory.
Temple, TX, June 16, 2016– For more than 15 hours yesterday, Democrats took to the Senate floor to filibuster in an effort to force votes on amendments designed to restrict the rights of Americans to keep and bear arms. Open Carry Texas (OCT) vehemently, categorically, and whole-heartedly opposes every proposed measure, including the NRA-backed amendment sponsored by Senator John Cornyn (R-TX) requiring a mandatory wait period.
When the People give the government the ability to determine who is “eligible” to exercise a right, what’s to stop the government from determining no one is “eligible?” While we also oppose the current background check (BGC) system, broadening it will do nothing to keep guns out of the hands of dangerous individuals. Extended BGCs do nothing more than inconvenience and interfere with the rights of law abiding citizens to keep and bear arms in the manner protected by the constitution: uninfringed. We oppose the so-called “universal BGC” proposals as infringements upon our rights.
The terrorist watchlist and “no-fly” list are both subjective, arbitrary lists that also do nothing to ensure the safety or security of the American people. As a gun rights organization who is dedicated to the safe and legal carry of firearms, we do not want killers having the ability to take the lives of innocent people. However, we also recognize, as Benjamin Franklin did, that “those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”
The process by which the government determines one to be ineligible to fly is a secret. There is no notification process to an individual placed on the no-fly list, meaning that Americans frequently don’t find out until they’re already trying to board a plane. There is no appeals process for being removed from the list and – other than politically connected individuals – it is nearly impossible to do so. Due to the complete lack of due process involved in the “no-fly” list, OCT condemns and opposes any effort to prevent law abiding citizens who have not been adjudicated by a court from exercising their right to keep and bear arms, including the right to purchase them, based on such a list.
The terrorist watchlist is an even more egregious and constitutionally offensive strategy to undermining our civil rights. While the word “terrorist” is surely intended to conjure up images of body counts, grotesque violence, Muslim extremists, and wholesale fear. The problem is in who gets to decide what constitutes a “terrorist.” The suggested amendment to deny gun rights to individuals on the terrorist watchlist does not seek to deny guns to terrorists, but to people suspected of being terrorists. Anti-liberty politicians want to use this broad and ominous term to deny rights to a category of people that has no baseline definition other than “the use of violence and intimidation in the pursuit of political aims.” Once the government is given permission to bar individuals deemed to be potentially engaging in or planning to engage in “terrorist” activities, there is no stopping the government from deeming anyone a “terrorist” that opposes its will. In fact, both Open Carry Texas and the National Rifle Association have been accused of being terrorist organizations and its members “domestic terrorists.” The Founding Fathers would have been labeled terrorists in the late 18th Century.
Due to the lack of due process involved in every amendment being proposed, we cannot support, endorse, or accept any of them. We will not condone the destruction of any aspect of our constitution under the guise of public safety. Senator Cornyn’s bill would treat people adjudicated without due process as criminals just for being placed a list without warrant, affidavit or cause. “Liberty is always dangerous, but it is the safest thing we have” and we can’t allow fear-mongering to alter, abolish or infringe upon it no matter how feel-good it may sound. The shooting in Orlando was a government failure, not a failure of our constitution.
OCT is an organization dedicated to the safe and legal carry of firearms in the State of Texas in accordance with the United States and Texas Constitution and applicable laws. About Open Carry Texas: Our purpose is to 1) educate all Texans about their right to carry in a safe manner; 2) to condition Texans to feel safe around law-abiding citizens that choose to carry them; 3) encourage our elected officials to pass constitutional carry legislation for all firearms; and 4) foster a cooperative relationship with local law enforcement in the furtherance of these goals with an eye towards preventing negative encounters.
This is another interesting question sent to us and one the courts haven’t yet had to wrestle with in Texas that we’re aware of. Texas law does not address whether Homeowner’s Associations may infringe upon basic constitutional rights. Some states expressly prohibit HOAs or landlords from passing rules or regulations that bar its citizens from legally carrying self-defense firearms. Texas is not one of them. All is not lost.
Under American Jurisprudence, a Servitude (basically an HOA, but specifically defined as “a right by which something – as a piece of land – owned by one person is subject to a specified use or enjoyment by another”) cannot “unreasonably burden a fundamental constitutional right” (§ 3.1(2) Validity of Servitudes: General Rule, Restatement Third, Property (Servitudes) American Law Institute 2000). In other words, even though an HOA is allowed to set certain rules and regulations related to the properties it oversees, it cannot violate your rights wholesale. Additionally, a HOA rule or regulation that lacks “rational justification” is likewise invalid.
Many Home Owner Associations seem to be run by very authoritarian leaders. Many do not. Those that do feel as if they can rule over their “kingdom” with an iron fist and impose their will on everyone else. These are the people that will try to use “gun violence” as a “rational justification” for gun bans. This line of thought has been losing a lot of steam lately. Most recently, in the Matthew Grace and Pink Pistols v District of Columbia and Cathy Lanier opinion, a federal court in DC essentially laughed at the “more guns equal more crimes” mantra that so many anti-gun jurisdictions and entities espouse today.
All [the government] offer[s] by way of reasoning is that all guns, even guns carried in self-defense, increase the incentive for criminals to carry guns, or increase the chances for accidents. But as plaintiffs rightly emphasize, “it is ‘not a permissible strategy’ to reduce the alleged negative effects of a constitutionally protected right by simply reducing the number of people exercising the right.”
The District’s policy thus bans some citizens from exercising their constitutional right to carry firearms outside the home for self-defense, and no amount of proof of the negative effects of exercising a constitutional right can justify a ban.”
So the question becomes does an HOA ban on open carry in public areas violate a fundamental constitution right. The answer is “no” as long as they aren’t also banning concealed carry. However, a sign saying “no guns allowed” would violate American Jurisprudence (common laws of the United States) and be “invalid” by law. An HOA also cannot prohibit carry on any land that is managed by the association of which a homeowner is a member.
In the same vein, condominium complexes are shared interests in which tenants own their particular condominium and the common areas. Penal Code 46.02 specifically allows for carry “on the person’s own premises or premises under the person’s control,” this includes the common areas of the complex. In fact, in the Texas Court of Criminal Appeals case Chiarini v. State of Texas, the court held that just that.
We conclude that appellant’s undivided ownership interest in the common area of the condominium complex made the common area appellant’s “own premises” under the UCW statute. Because appellant was carrying a handgun on his own premises, he did not violate § 46.02.
The HOA may restrict guns in a community meeting room if the proper signage is posted at every entrance but the HOA cannot restrict guns in the entire HOA jurisdiction area. The bottom line is that in an HOA, it would likely be a very long, hard–fought battle if the board wants to challenge the home owners’ right to bear arms.
Where the law gets diluted and confusing for some is when applied to apartments or rental homes. Under current Texas law, private property owners can ban licensed open carry, concealed carry, or both in common areas of their “property” as long as they provide notice. Home owners and renters of houses are the same as to their rights. The same applies to renters in apartment complexes. You can also have guns in hotel and motel rooms for as long as the rent is paid but the hotel or motel may restrict the common areas by the proper signage if the signs are posted at every entrance to a common are.
It is not a stretch of the imagination that a resident in a rental property who is assaulted, injured, or otherwise victimized due to a landlord’s decision to disarm them could sue for damages for failing to provide adequate protection to the tenant. This is an area that apartment complexes and landlords need to take into account when drafting their tenant policies.
Like HOAs, no court would likely find in favor of a tenant if the landlord merely banned open carry in common areas because there is still an alternative to legally carry for self-defense on the property if concealed. Since there is an alternate available, the rights of the tenant are not being “irrationally” violated, even if the rationale of such a decision may not be agreeable to those of us that know better. Tenants in rental homes or apartment complexes in which the landlord has decided to place both 30.06 and 30.07 signs should have a talk with the management and make them aware that banning all guns on its property sets them up for lawsuits should anyone in the complex be victimized. At a minimum, this would at least dissuade them from posting 30.06 signs in common areas.
Keep in mind, though, that 30.06 and 30.07 signs only apply to the LICENSED carry of a firearm. Therefore, the signs are meaningless to possession of unlicensed firearms because Penal Code Section 46.02 provides an exemption as listed above. Since the signage requirements only apply to “license holders,” law abiding gun owners without a license who carry only in their vehicles or homes (or to and from them) wouldn’t be subject to them. In these cases, it’s best to keep it to yourself lest the landlord decide to close this loophole.
This is a problem that may require a legislative solution. It is a difficult balancing act between property rights, gun rights, and the inalienable right to life, which predicates a right to defend that life. If the legislature forbids landlords from completely banning guns on its property, then it essentially says gun rights trump private property rights. If it does nothing, it essentially says private property rights trump gun rights.
An unfortunate solution to this conundrum may be that someone gets injured, critically injured or dies as a result of a gun ban by a landlord. If a landlord is successfully sued into bankruptcy or feels the pain of such a lawsuit, other property owners will be forced to wake up and reevaluate their policies. This can be preempted by someone wealthy enough to preemptively sue or is able to find a sympathetic attorney to challenge the polices now since they do have standing for such a case.
The ability to ban guns only applies to privately owned rental properties and not publicly owned ones. Under Texas law, government entities CANNOT create rules or regulations more strict that state law, which includes banning guns in government housing.
To summarize, an HOA cannot completely ban guns within its jurisdiction because properties within it are privately owned even if communally managed. On the other hand, private property owners of homes or apartments can ban guns in common areas on their property if they choose under current law. The only choices are to accept it, challenge it in court, or choose not to live in such a place to begin with. Public housing is different since it is a government run entity and cannot ban guns of those that are legally allowed to possess them.
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Disclaimer: This post is not intended to be legal and is shared for informational purposes only.