Can a Texas city or county ban licensed concealed handguns in its parks, or a transit agency on its buses?

Plain-English summary

When Texas passed its first concealed handgun licensing law in 1995 (Senate Bill 60, codified as article 4413(29ee)), state and local officials had to work out where license holders could and could not carry. Representative Ron Wilson asked the Attorney General three questions: could a rapid transit authority ban licensed concealed handguns on its buses, and could cities and counties ban them in their parks?

On the parks question, the office drew a sharp line between cities and counties. Cities lost. The 1995 law amended Local Government Code section 215.001, the statute that controls how cities can regulate firearms, to add an exception: a city may regulate the carrying of a firearm in a public park only as to a person "other than a person licensed to carry a concealed handgun." In plain terms, the legislature specifically stripped Texas municipalities of the power to bar a license holder from carrying a concealed handgun in a city park. Counties were different. Nothing in the handgun law (or any other statute) cut back a county's police power over its parks under Local Government Code section 331.007. So the office concluded a county could adopt a reasonable rule excluding people carrying handguns from a county park, as long as the rule was reasonably necessary and appropriate for a legitimate purpose.

On the rapid transit question, the office gave a more guarded answer. The concealed handgun law did not, by itself, grant license holders a right to carry everywhere, and it did not grant or take away any power of a transit authority over its vehicles. A transit authority's police power under section 13 of article 1118x (its general authority to adopt reasonable rules for the safety and efficiency of the system) was a possible source of authority to bar handguns on buses. But whether such a rule would actually be a valid, reasonable exercise of that police power was a question of fact, and the office said it could not decide that in the abstract. Whether the rule is reasonable is, in the first instance, up to the transit authority's governing body, subject to court review, and a court would not overturn it unless it was clearly unreasonable and arbitrary. The same reasonableness limits apply to a county's park rule.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

This opinion interprets statutes that have since been renumbered and amended. The concealed handgun licensing law (V.T.C.S. article 4413(29ee)) was later recodified into the Government Code, and the firearm-preemption statute the opinion relies on (Local Government Code section 215.001) has been amended and renumbered, with the state's preemption of local firearm regulation broadened over the years. The Transportation Code chapter governing transit authorities (chapter 451) took effect just after this opinion. Read this page for the office's 1995 reasoning about the city/county split and the limits of transit-authority police power, and check the current Government Code, Local Government Code, and Transportation Code before relying on any specific rule here.

What the opinion meant at the time

For cities and municipal officials: At the time of the opinion, a Texas city could not prohibit a license holder from carrying a concealed handgun in a city park; the 1995 amendment to Local Government Code section 215.001 removed that authority.

For counties and commissioners courts: The opinion treated counties as retaining police power over county parks under Local Government Code section 331.007, so a county could adopt a reasonable rule excluding people carrying handguns from a county park. Whether a particular rule was reasonable was left to the county's discretion in the first instance, subject to court review.

For rapid transit authorities: The opinion did not give a yes-or-no answer. It identified section 13 of article 1118x as a possible source of authority to bar handguns on transit vehicles but said whether such a rule would be a valid exercise of police power was a fact question outside the opinion process.

For license holders: The opinion meant a license holder could not be barred from carrying in a city park, but might be barred from a county park or a transit vehicle if the governing body adopted a reasonable rule.

Common questions

Could a Texas city ban licensed concealed handguns in its public parks after the 1995 law?
No. The office concluded the 1995 concealed handgun law amended Local Government Code section 215.001 to remove a city's authority to regulate the carrying of a firearm in a public park by a person licensed to carry a concealed handgun.

Could a county ban handguns in county parks?
The office concluded a county could. Nothing in the handgun law restricted a county's police power over its parks under Local Government Code section 331.007, so a county could adopt a reasonable rule excluding people carrying handguns from a county park, subject to the reasonableness limits courts apply to police-power measures.

Could a transit authority ban concealed handguns on its buses?
The office did not decide. It pointed to the transit authority's general police power under section 13 of article 1118x as a possible basis, but said whether a specific no-handgun rule would be a reasonable and necessary exercise of that power was a fact question it could not resolve.

Did section 32 (the "rights of employers" provision) let a transit authority ban handguns for all riders?
No. The office relied on its companion opinion DM-363, which held that section 32 of article 4413(29ee) applies only to the employer-employee relationship, so it does not address whether a transit authority can bar handguns carried by passengers generally.

Background and statutory framework

The opinion sits alongside Attorney General Opinion DM-363 (1995), issued the same day, which construed the new concealed handgun law and held that section 32 of article 4413(29ee) (the "rights of employers" provision) reaches only employees, not the public at large. Building on that, this opinion addressed transit authorities and parks.

For transit authorities, the relevant grant was section 13 of article 1118x (set to be recodified as Transportation Code section 451.107), which lets a transit authority adopt reasonable rules to secure safety and efficiency in operating its system. The office explained that a delegated police power can be used to abridge a citizen's use of private property where the use endangers public safety (Spann v. City of Dallas, 235 S.W. 513 (Tex. 1921)), but only where the means are reasonably necessary and appropriate to a legitimate object (Falfurrias Creamery Co. v. City of Laredo, 276 S.W.2d 351 (Tex. Civ. App.-San Antonio 1955, writ ref'd n.r.e.)). Whether a measure meets that test is, in the first instance, for the governing body (Burrington v. Cokinos, 338 S.W.2d 133 (Tex. 1960)), subject to judicial review that will not disturb the action unless it is clearly unreasonable and arbitrary (State v. Spartan's Industries, Inc., 447 S.W.2d 407 (Tex. 1969); State v. Richards, 301 S.W.2d 597 (Tex. 1957); City of Coleman v. Rhone, 222 S.W.2d 646 (Tex. Civ. App.-Eastland 1949, writ ref'd)).

For parks, the office laid out the home-rule and general-law city framework: home-rule cities have full self-government power and look to the legislature only for limits (Forwood v. City of Taylor, 214 S.W.2d 282 (Tex. 1948); Tex. Const. art. XI, § 5; Local Gov't Code § 51.072), and the legislature must preempt their powers "with unmistakable clarity" (Dallas Merchants & Concessionaires Ass'n v. City of Dallas, 852 S.W.2d 489 (Tex. 1993); Lower Colo. River Auth. v. City of San Marcos, 523 S.W.2d 641 (Tex. 1975)). Non-home-rule cities and counties exercise police power only by legislative grant (City of Coleman v. Rhone; Travis County v. Colunga, 753 S.W.2d 716 (Tex. App.-Austin 1988, writ denied); Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948); Clark v. Finley, 54 S.W. 343 (Tex. 1899)). Local Government Code section 331.007 recognizes and grants police power over parks, and section 51.001 generally grants police power to municipalities (Massengale v. City of Copperas Cove, 520 S.W.2d 824 (Tex. Civ. App.-Waco 1975, writ ref'd n.r.e.)).

The decisive move for cities was the 1995 amendment to Local Government Code section 215.001. That statute generally bars cities from regulating firearms, with exceptions including regulating the carrying of a firearm "at a public park." The concealed handgun law narrowed the park exception so it reached only "a person other than a person licensed to carry a concealed handgun." The office read that change as a deliberate withdrawal of a city's authority to restrict licensed concealed carry in public parks. Because no parallel amendment touched section 331.007, the office concluded counties kept their park police power.

Citations

Constitutional provision discussed:

• Texas Constitution article XI, § 5 (home-rule cities)

Statutes discussed:

• V.T.C.S. article 4413(29ee) (concealed handgun law; § 32, "rights of employers"); V.T.C.S. article 1118x, § 13 (rapid transit authority rulemaking power, recodified as Transportation Code § 451.107)
• Penal Code § 46.02 (unlawful carrying of weapons, amended to add a license-holder defense)
• Local Government Code § 215.001 (city firearm-regulation preemption; public-park exception narrowed in 1995); § 331.007 (park police power); §§ 51.001, 51.072 (municipal police power and home-rule powers)

Key cases relied on:

• Spann v. City of Dallas, 235 S.W. 513 (Tex. 1921); Falfurrias Creamery Co. v. City of Laredo, 276 S.W.2d 351 (Tex. Civ. App.-San Antonio 1955, writ ref'd n.r.e.) (police power and reasonable means)
• Burrington v. Cokinos, 338 S.W.2d 133 (Tex. 1960); State v. Spartan's Industries, Inc., 447 S.W.2d 407 (Tex. 1969); State v. Richards, 301 S.W.2d 597 (Tex. 1957); City of Coleman v. Rhone, 222 S.W.2d 646 (Tex. Civ. App.-Eastland 1949, writ ref'd) (discretion and judicial review of police-power measures)
• Forwood v. City of Taylor, 214 S.W.2d 282 (Tex. 1948); Dallas Merchants & Concessionaires Ass'n v. City of Dallas, 852 S.W.2d 489 (Tex. 1993); Lower Colo. River Auth. v. City of San Marcos, 523 S.W.2d 641 (Tex. 1975) (home-rule powers and preemption)
• Travis County v. Colunga, 753 S.W.2d 716 (Tex. App.-Austin 1988, writ denied); Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948); Clark v. Finley, 54 S.W. 343 (Tex. 1899) (county and commissioners court powers)
• Massengale v. City of Copperas Cove, 520 S.W.2d 824 (Tex. Civ. App.-Waco 1975, writ ref'd n.r.e.) (municipal police power)

Prior Attorney General opinions cited:

• Attorney General Opinion DM-363 (1995) (section 32 reaches only employees); Attorney General Opinions H-119 (1973), H-1068 (1977) (earlier transit-authority penalty provisions held unconstitutional)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0364
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1995/dm0364.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain (including footnote numbering) — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

August 30, 1995

Honorable Ron Wilson
Chair
Licensing and Administrative Procedures
House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. DM-364

Re: Whether a rapid transit authority established under V.T.C.S. article 1118x (to be recodified as Transportation Code chapter 451) may prohibit a concealed handgun licensee from carrying a concealed handgun on a public conveyance operated by the rapid transit authority; whether a city or county may prohibit a concealed handgun licensee from carrying a concealed handgun in a city or county park (RQ-828)

Dear Representative Wilson:

You ask three questions about the recently enacted concealed handgun law, Act of May 16, 1995, 74th Leg., R.S., ch. 229, 1995 Tex. Sess. Law Serv. 1998, section 1 of which is to be codified as V.T.C.S. article 4413(29ee). The first two questions involve the effect of that law on the authority of a rapid transit authority, created pursuant to V.T.C.S. article 1118x (to be recodified as chapter 451 of the Transportation Code, see Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 1, 1995 Tex. Sess. Law Serv. 1025, 1357-96), to prohibit the carrying of a concealed handgun on a public conveyance:

1. Section 13 of Article 1118x of the Texas Revised Civil Statutes, Annotated,[1] as amended by S.B. 971, 74th Legislature which codified it under Section 451.107, Transportation Code,[2] relates to the authority granted a rapid transit authority to "adopt and enforce reasonable rules and regulations . . . to secure and maintain safety and efficiency in the operation and maintenance of the system . . . ." Pursuant to this statutory provision, may an "Authority" prohibit a person who is licensed to carry a concealed handgun under Article 4413(29ee) of the Texas Revised Civil Statutes Annotated, from carrying a concealed handgun while a passenger on a vehicle used by the "Authority" to provide public transportation?
2. Under Section 32 of Article 4413(29ee) of the Texas Revised Civil Statutes Annotated:[3] may an Authority prohibit a person who is licensed to carry a concealed handgun from carrying a concealed handgun while a passenger on a vehicle used by the "Authority" to provide public transportation? [Footnotes added.]

The third question involves the effect of the handgun law on the authority of a city or county to prohibit concealed handguns in a city or county park:

3. Under Article 4413(29ee) of the Texas Revised Civil Statutes Annotated, effective September 1, 1995, are governing bodies of cities and counties granted authority to post notice and preclude the holder of a concealed carry permit from carrying a concealed weapon while on the premises of a city or county controlled park?

We answered the second question in Attorney General Opinion DM-363, which we have issued contemporaneously with this opinion. There we concluded that section 32 applies only to a public or private employer's employees who are licensed under article 4413(29ee) and not to other persons who are licensed under article 4413(29ee). See Attorney General Opinion DM-363 (1995) at 5. Therefore, section 32 does not dispose of the issue of whether a rapid transit authority may prohibit all concealed handguns from its vehicles.

In regard to your first question, we note that the concealed handgun law itself does not grant a right to carry a concealed handgun wherever the licensee chooses. The statute does, however, amend various Penal Code provisions regarding the carrying of prohibited weapons, particularly Penal Code section 46.02, which otherwise would make the carrying of such a weapon unlawful. Attorney General Opinion DM-363 (1995) at 1-2. Therefore, the statute does not affect the power, if any, of a rapid transit authority to prohibit the carrying of handguns on its vehicles.

Section 13 of article 1118x is a possible source of such a power. A rapid transit authority may invoke the police power delegated to it in section 13[4] to abridge the right of a citizen to use his private property if the use will endanger public safety in a rapid transit system. See Spann v. City of Dallas, 235 S.W. 513, 515 (Tex. 1921). To be a valid exercise of police power, the means adopted by a rule, such as the exclusion or ejection of persons carrying handguns, must be reasonably necessary and appropriate for the accomplishment of a legitimate object falling within the rapid transit authority's police power, such as the maintenance of the safety of the rapid transit system. See Falfurrias Creamery Co. v. City of Laredo, 276 S.W.2d 351, 353 (Tex. Civ. App.-San Antonio 1955, writ ref'd n.r.e.).

This office cannot determine whether a rapid transit authority rule prohibiting handguns on public conveyances would be reasonably necessary and appropriate for the accomplishment of a legitimate object within the police power of the rapid transit authority. The reasonableness and necessity of a measure taken under the police power is, in the first instance, a matter within the discretion of the governing body taking the measure. Burrington v. Cokinos, 338 S.W.2d 133, 141 (Tex. 1960). "Any attempted exercise of the [police] power . . . is always subject to review by the courts on the question of reasonableness," id., but the courts will not disturb the legislative action unless it is clearly shown to be unreasonable and arbitrary, State v. Spartan's Industries, 447 S.W.2d 407, 414 (Tex. 1969); see State v. Richards, 301 S.W.2d 597, 602-03 (Tex. 1957); City of Coleman v. Rhone, 222 S.W.2d 646, 649-50 (Tex. Civ. App.-Eastland 1949, writ ref'd).

In answer to your third and last question, we believe that a municipality does not have the power to prohibit licensees from carrying handguns in city parks but that a county does have such power over county parks. Home-rule cities have "full power of self-government, that is, full authority to do anything the legislature could theretofore have authorized them to do." Forwood v. City of Taylor, 214 S.W.2d 282, 286 (Tex. 1948); see Tex. Const. art. XI, § 5; Local Gov't Code § 51.072. They "look to the Legislature not for grants of power, but only for limitations on their power." Dallas Merchants & Concessionaires Ass'n v. City of Dallas, 852 S.W.2d 489, 490-91 (Tex. 1993). "The powers of home rule cities are subject to and may be limited only by their charters or by the Constitution or by general law." Lower Colo. River Auth. v. City of San Marcos, 523 S.W.2d 641, 644 (Tex. 1975). "If the Legislature chooses to preempt a subject matter usually encompassed by the broad powers of a home-rule city, it must do so with unmistakable clarity." Dallas Merchants & Concessionaires Ass'n, 852 S.W.2d at 491. As for non-home-rule municipalities, "[t]he [police] power rests in the State, but by legislative grant may also be exercised by municipalities." Coleman v. Rhone, 222 S.W.2d 646, 648 (Tex. Civ. App.-Eastland 1949, writ ref'd). Similarly, a commissioners court has no general police power, but it "does have . . . those powers expressly conferred upon it by the Constitution and by the Legislature, together with such implied powers as are necessary to exercise the powers expressly conferred." Travis County v. Colunga, 753 S.W.2d 716, 720 (Tex. App.-Austin 1988, writ denied) (citing Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948); Clark v. Finley, 54 S.W. 343 (Tex. 1899)).

Section 331.007 of the Local Government Code specifically recognizes the police power over its parks that a home-rule municipality already possesses and grants non-home-rule municipalities and counties police power over their parks. That section provides in pertinent part: "A park . . . shall be open for the use of the public under rules prescribed by the governing body of the park . . . ." In addition, section 51.001 of the Local Government Code generally grants police power to a municipality. Section 51.001 provides:

The governing body of a municipality may adopt, publish, amend, or repeal an ordinance, rule, or police regulation that:
(1) is for the good government, peace, or order of the municipality or for the trade and commerce of the municipality; and
(2) is necessary or proper for carrying out a power granted by law to the municipality or to an office or department of the municipality.

We believe the police power granted in section 51.001 would include a municipality's power to regulate its parks. Cf. Massengale v. City of Copperas Cove, 520 S.W.2d 824, 828 (Tex. Civ. App.-Waco 1975, writ ref'd n.r.e.) (non-home-rule city's ordinance allowing private club to sell alcoholic beverages in city only if club was located in use district was valid exercise of city's police power under predecessor of section 51.001).

The Seventy-fourth Legislature, in the concealed handgun law, tempered a municipality's police power over its parks by amending section 215.001 of the Local Government Code. Before the amendment section 215.001 read in pertinent part:

(a) A municipality may not adopt regulations relating to the transfer, private ownership, keeping, transportation, licensing, or registration of firearms, ammunition, or firearm supplies.
(b) Subsection (a) does not affect the authority a municipality has under another law to:
. . .
(6) regulate the carrying of a firearm at a:
(A) public park

Local Gov't Code § 215.001(a), (b)(6). The amendment adds an exception to subsection (b)(6) of section 215.001 so that it now reads in pertinent part:

(b) Subsection (a) does not affect the authority a municipality has under another law to:
. . .
(6) regulate the carrying of a firearm by a person other than a person licensed to carry a concealed handgun under Article 4413(29ee), Revised Statutes, at a:
(A) public park

Act of May 16, 1995, 74th Leg., R.S., ch. 229, § 7, 1995 Tex. Sess. Law Serv. 1998, 2014-15 (added language italicized). The legislature thus has specifically taken away a municipality's authority to prohibit or restrict the licensed carrying of a concealed handgun in a public park.

Neither the concealed handgun law nor any other statute has restricted a county's police power over its parks under section 331.007 of the Local Government Code. We believe that section 331.007 permits the "governing body of a [county] park" to adopt a rule providing for the exclusion or ejection of persons carrying handguns from a county park if such a rule is reasonably necessary and appropriate for the accomplishment of a legitimate object falling within the county's police power under section 331.007. See Falfurrias Creamery Co. v. City of Laredo, 276 S.W.2d at 353.

The principles stated above regarding a rapid transit authority's initial determination of the propriety of an exercise of police power and judicial review of that determination also apply to counties: the reasonableness and necessity of a measure taken under the county's police power is, in the first instance, a matter within the county's discretion; and the courts would not disturb a county's regulation of handguns in county parks unless the regulation were clearly shown to be unreasonable and arbitrary. Therefore, this office cannot determine whether a county ordinance prohibiting handguns in a county park would be reasonably necessary and appropriate for the accomplishment of a legitimate object within the police power of the county under section 331.007.

SUMMARY

Section 32 of V.T.C.S. article 4413(29ee) does not affect the power, if any, of a rapid transit authority to prohibit the carrying of handguns on its vehicles by persons other than employees of the rapid transit authority.
A rapid transit authority may invoke the police power delegated to it in section 13 of V.T.C.S. article 1118x to abridge the right of a citizen to use his private property if the use will endanger public safety in the rapid transit system. The reasonableness and necessity of a measure taken under the rapid transit authority's police power is, in the first instance, a matter within the authority's discretion. The courts would not disturb a rapid transit authority's regulation of handguns on public conveyances unless the regulation were clearly shown to be unreasonable and arbitrary.
The legislature, in the concealed handgun law, has specifically taken away from a municipality the authority to prohibit the licensed carrying of concealed handguns in a city or county park. See Act of May 16, 1995, 74th Leg., R.S., ch. 229, § 7, 1995 Tex. Sess. Law Serv. 1998, 2014-15.
A county has the power to adopt a rule providing for the exclusion or ejection of persons carrying handguns from county parks if such a rule is reasonably necessary and appropriate for the accomplishment of a legitimate object falling within the county's police power under section 331.007 of the Local Government Code. The reasonableness and necessity of a measure taken under the county's police power is, in the first instance, a matter within the county's discretion. The courts would not disturb a county's regulation of handguns in county parks unless the regulation were clearly shown to be unreasonable and arbitrary.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by James B. Pinson
Assistant Attorney General

Footnotes:

[1] Section 13 provides in pertinent part: "(a) The board may adopt and enforce reasonable rules and regulations: (1) to secure and maintain safety and efficiency in the operation and maintenance of its system . . . . (b) A condensed substantive statement of the rules and regulations shall be published after adoption once a week for two consecutive weeks in a newspaper with general circulation in the area in which the authority is located, which notice shall advise that the full text of the rules and regulations is on file in the principal office of the authority where it may be read by any interested person. Such rules and regulations shall become effective 10 days after the second publication." V.T.C.S. art. 1118x, § 13(a)(1), (b). The Seventy-fourth Legislature has repealed article 1118x; the repeal becomes effective on September 1, 1995. Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 24, 1995 Tex. Sess. Law Serv. 1025, 1870, 1871.

[2] Section 451.107 provides in pertinent part: "RULES. (a) The board by resolution may adopt rules for: (1) the safe and efficient operation and maintenance of the transit authority system. . . . (b) A notice of each rule adopted by the board shall be published in a newspaper with general circulation in the area in which the authority is located once each week for two consecutive weeks after adoption of the rule. The notice must contain a condensed statement of the substance of the rule and must advise that a copy of the complete text of the rule is filed in the principal office of the authority, where the text may be read by any person. (c) A rule becomes effective 10 days after the date of the second publication of the notice under this section." Act of May 1, 1995, 74th Leg., R.S., ch. 165, sec. 1, § 451.107(a)(1), 1995 Tex. Sess. Law Serv. 1025, 1368 (to be codified as Trans. Code § 451.107(a)(1)). The Transportation Code becomes effective on September 1, 1995. Id. § 27, at 1871.

[3] Section 32 provides as follows: "RIGHTS OF EMPLOYERS. This article does not prevent or otherwise limit the right of a public or private employer to prohibit persons who are licensed under this article from carrying a concealed handgun on the premises of the business." Act of May 16, 1995, 74th Leg., R.S., ch. 229, § 1, 1995 Tex. Sess. Law Serv. 1998, 2012 (to be codified as V.T.C.S. art. 4413(29ee), § 32).

[4] In Attorney General Opinions H-119 and H-1068, this office declared unconstitutional portions of earlier versions of section 13 that "purport[ed] to delegate to transit authorities the power to make violation of its rules and regulations a crime," Attorney General Opinion H-119 (1973) at 8; accord Attorney General Opinion H-1068 (1977) at 2-3. The Seventieth Legislature amended section 13 to delete all references to the establishment of penalties for the violation of rules adopted under section 13. See Act of June 1, 1987, 70th Leg., R.S., ch. 350, § 2, 1987 Tex. Gen. Laws 1772, 1772-73.