Can a Texas school district let a Guardian Plan employee carry a gun at school sporting events or board meetings?

Plain-English summary

Representative Joseph Pickett, who chaired the House Committee on Homeland Security and Public Safety, asked the Attorney General how two Texas gun statutes fit together when a school district arms some of its own people. The background was this: a number of school boards had adopted policies, often called a "Guardian Plan," that let designated employees carry handguns on school property. Those policies rest on Penal Code section 46.03(a)(1), which makes carrying a firearm on school premises an offense "unless pursuant to written regulations or written authorization" of the institution. A typical Guardian Plan also requires the designated person to hold a concealed handgun license.

The tension the Representative pointed to was a different statute, Penal Code section 46.035. That law says a concealed handgun license holder commits an offense if he carries at a high school, collegiate, or professional sporting event, at an interscholastic event, or at any meeting of a governmental entity (which would include a school board meeting). So the question was whether a board's Guardian authorization could override those event-and-meeting bans.

The AG's answer turned on a few words in section 46.035. Subsections (b) and (c) apply only when the person is carrying "under the authority of Subchapter H, Chapter 411, Government Code," which is the concealed-handgun licensing law. When someone is authorized to carry by some other law instead, the AG explained, that person is not carrying "under the authority of" the licensing statute, and the section 46.035 bans are not triggered. A Guardian carrying under a school board's written regulations and authorization under section 46.03(a)(1) is in exactly that position. So the AG concluded those bans on carrying at sporting events, interscholastic events, and governmental meetings are not violated by a person lawfully carrying under a board's Guardian Plan.

The Representative also asked two follow-up questions. One was whether serving as a Guardian falls within a school trustee's official duties under Education Code section 11.1511(b)(15). The AG would not give a flat answer, because the scope of official duties can come up in different legal settings, but said a person acting under the board's written regulations and authorization would likely be acting within the scope of official duties, and noted in a footnote that a board may want legal counsel when a trustee is involved. The other follow-up was about House Bill 1009, which created a new kind of officer called a "school marshal." The AG concluded that the school marshal law does not conflict with section 46.03(a)(1), so a district may appoint one person as a school marshal under Education Code section 37.0811 and separately authorize a different person to serve as a Guardian.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Texas laws on firearms at schools, including the school marshal program and school-carry authorizations, have been amended several times since 2014. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

Representative Pickett and the committee (as the opinion described it): The opinion answered that section 46.035's bans on carrying at sporting events, interscholastic events, and governmental meetings are not violated by a person carrying under a board's Guardian Plan regulations, because that person is not carrying under the concealed-handgun licensing authority; that such a person would likely be acting within the scope of official duties; and that a district may run both a school marshal appointment and a Guardian authorization.

School districts and boards of trustees (as the opinion described it): The opinion described a board as able to adopt written regulations and authorization under section 46.03(a)(1) permitting a designated person to carry on school premises, with the section 46.035 event-and-meeting bans inapplicable to a person carrying under that authority rather than under the concealed-handgun licensing statute.

Designated Guardians and school marshals (as the opinion described it): The opinion described the Guardian role (under section 46.03(a)(1)) and the school marshal role (under House Bill 1009 and Education Code section 37.0811) as separate positions a district could fill with different people, because nothing in the school marshal law conflicts with section 46.03(a)(1).

Common questions

Does Texas's ban on guns at school sporting events apply to a school's armed Guardian?
The AG concluded it does not, where the Guardian carries under the school board's written authorization rather than under the concealed-handgun licensing law. Section 46.035's bans are triggered only by carrying "under the authority of" those licensing statutes.

What is a Guardian Plan?
The AG described it as a school board policy, adopted under Penal Code section 46.03(a)(1), that authorizes designated employees to carry handguns on school premises. The opinion noted that a typical plan requires the designated person to hold a concealed handgun license.

Why doesn't the gun-free-zone law stop a Guardian?
The AG explained that section 46.035(b) and (c) apply only when a person carries "under the authority of" the concealed-handgun statutes. A person authorized by other law, here a board's regulations under section 46.03(a)(1), is not carrying under that authority, so the bans do not apply.

Is serving as a Guardian part of a school trustee's official duties?
The AG said it could not give a categorical answer, because scope of official duties can arise in different contexts, but that a person acting under a board's written regulations and authorization would likely be acting within the scope of official duties. A footnote suggested a board may want to seek legal counsel when a trustee is involved.

Can a school district have both a school marshal and a Guardian?
Yes. The AG concluded that House Bill 1009's school marshal program does not conflict with section 46.03(a)(1), so a board may appoint one person as a school marshal under Education Code section 37.0811 and authorize a different person to serve as a Guardian.

Background and statutory framework

Penal Code section 46.03(a)(1) makes it an offense to carry a firearm on school premises "unless pursuant to written regulations or written authorization of the institution" (Tex. Penal Code Ann. § 46.03(a)(1) (West 2011)). Section 46.035 separately lists places a concealed handgun license holder may not carry, including the premises where a high school, collegiate, or professional sporting event or interscholastic event is taking place, and any meeting of a governmental entity (Tex. Penal Code Ann. § 46.035, § 46.035(b)(2), (c) (West Supp. 2013); § 46.035(f)(3) (defining "premises")). Reading the statutes by their plain language and common usage (Am. Zurich Ins. Co. v. Samudio, 370 S.W.3d 363, 368 (Tex. 2012); In re Office of Att'y Gen., 2013 WL 854785, at *4 (Tex. 2013); Christus Health Gulf Coast v. Aetna, Inc., 397 S.W.3d 651, 654 (Tex. 2013); Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009); Tex. Gov't Code Ann. § 311.011 (West 2013)), the AG emphasized that section 46.035(b) and (c) are violated only when the handgun is carried "under the authority of Subchapter H, Chapter 411, Government Code." A person carrying under a school board's section 46.03(a)(1) regulations is not carrying under that licensing authority, so the bans do not apply.

On the third question, the AG noted that a board carries out powers and duties provided by the Education Code or other law (Tex. Educ. Code Ann. § 11.1511(b)(15) (West 2012)) and that trustees as a body corporate have exclusive power to govern the district's public schools (Tex. Educ. Code Ann. § 11.151(b)), so a board may promulgate the written regulations and authorization contemplated by Penal Code section 46.03(a)(1), and a person acting under them would likely be acting within the scope of official duties. On the fourth question, the AG explained that House Bill 1009 authorizes a district to appoint a licensed, trained employee as a school marshal and to allow that marshal to carry on school premises by district policy (Act of May 22, 2013, 83rd Leg., R.S., ch. 655, 2013 Tex. Gen. Laws 1742 (House Bill 1009); Tex. Educ. Code Ann. § 37.0811), and that because nothing in House Bill 1009 conflicts with section 46.03(a)(1), a board may appoint one person as a school marshal and authorize another as a Guardian.

Citations

Statutory provisions:

• Tex. Penal Code Ann. § 46.03(a)(1) (West 2011) (carrying on school premises; written-authorization exception)
• Tex. Penal Code Ann. § 46.035 (West Supp. 2013) (places a license holder may not carry)
• Tex. Penal Code Ann. § 46.035(b)(2), (c) (West Supp. 2013) (sporting/interscholastic events; governmental meetings)
• Tex. Penal Code Ann. § 46.035(f)(3) (West Supp. 2013) (definition of "premises")
• Tex. Gov't Code Ann. § 311.011 (West 2013) (words read in context and by common usage)
• Tex. Educ. Code Ann. § 11.1511(b)(15) (West 2012) (board carries out other powers and duties)
• Tex. Educ. Code Ann. § 11.151(b) (trustees as a body corporate)
• Tex. Educ. Code Ann. § 37.0811 (school marshal)
• Act of May 22, 2013, 83rd Leg., R.S., ch. 655, 2013 Tex. Gen. Laws 1742 (House Bill 1009, school marshal program)

Cases:

• Am. Zurich Ins. Co. v. Samudio, 370 S.W.3d 363, 368 (Tex. 2012)
• In re Office of Att'y Gen., 2013 WL 854785, at *4 (Tex. 2013)
• Christus Health Gulf Coast v. Aetna, Inc., 397 S.W.3d 651, 654 (Tex. 2013)
• Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009)

Other authority:

• Tex. Att'y Gen. Op. No. GA-0127 (2003)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1051
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2014/ga1051.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

April 17, 2014

The Honorable Joseph C. Pickett Opinion No. GA-1051
Chair, Committee on Homeland Security
and Public Safety Re: Whether a school district may authorize an
Texas House of Representatives employee or trustee to carry a concealed handgun at
Post Office Box 2910 any meeting of a governmental entity or on the
Austin, Texas 78768-2910 premises of school property where a sporting event
or interscholastic event is taking place
(RQ-1158-GA)

Dear Representative Pickett:

You ask whether a school district may authorize an employee or trustee to carry a concealed handgun at any meeting of a governmental entity or on the premises of school property where a sporting event or interscholastic event is taking place.[1] You inform us that several school district boards of trustees have adopted policies allowing designated employees to carry handguns on school premises pursuant to subsection 46.03(a)(1) of the Penal Code. Request Letter at 1-2. You further state that a typical policy, commonly called a "Guardian Plan," requires the designated employee to have a current concealed handgun license ("CHL"). Id. at 3-4. You note that section 46.035 of the Penal Code, however, prohibits a CHL licensee from carrying a handgun "on the premises where a high school . . . sporting event or interscholastic event is taking place" or "at any meeting of a governmental entity." Id. at 3-4 (quoting TEX. PENAL CODE ANN. § 46.035(b)(2), (c) (West Supp. 2013)). In your first two questions, you ask whether a board of trustees' written authorizations to allow a trustee or employee to carry a handgun on school premises under subsection 46.03(a)(1) of the Penal Code "overrides" section 46.035's prohibitions as applied to a school sporting or interscholastic event or school board meeting. Request Letter at 6.

The goal in statutory construction is "to determine and give effect to the Legislature's intent." Am. Zurich Ins. Co. v. Samudio, 370 S.W.3d 363, 368 (Tex. 2012). Courts rely on the plain language of the statutes because "the truest measure of what [the Legislature] intended is what it enacted." In re Office of Att'y Gen., 2013 WL 854785, at *4 (Tex. 2013). Words and phrases are "read in context and construed according to the rules of grammar and common usage." TEX. GOV'T CODE ANN. § 311.011 (West 2013). When the words of a statute are clear, courts "take the Legislature at its word [and] respect its policy choices." Christus Health Gulf Coast v. Aetna, Inc., 397 S.W.3d 651, 654 (Tex. 2013); see also Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009) ("Where text is clear, text is determinative[.]").

Subsection 46.03(a)(1) of the Penal Code provides the general rule prohibiting a person from carrying a firearm on school premises:

(a) A person commits an offense if the person intentionally, knowingly, or recklessly possesses or goes with a firearm, illegal knife, club, or prohibited weapon listed in Section 46.05(a):

(1) on the physical premises of a school or educational institution, any grounds or building on which an activity sponsored by a school or educational institution is being conducted, or a passenger transportation vehicle of a school or educational institution, whether the school or educational institution is public or private, unless pursuant to written regulations or written authorization of the institution;

TEX. PENAL CODE ANN. § 46.03(a)(1) (West 2011) (emphasis added). The phrase "unless pursuant to written regulations or written authorization of the institution" is written as an exception to the offense described earlier in the sentence. Id.

Section 46.035 of the Penal Code lists places where a CHL licensee acting under authority of the concealed handgun statutes may not carry a concealed handgun. See id. § 46.035 (West Supp. 2013). As pertinent here,

(b) A license holder commits an offense if the license holder intentionally, knowingly, or recklessly carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, regardless of whether the handgun is concealed, on or about the license holder's person:

(2) on the premises[2] where a high school, collegiate, or professional sporting event or interscholastic event is taking place, unless the license holder is a participant in the event and a handgun is used in the event;

(c) A license holder commits an offense if the license holder intentionally, knowingly, or recklessly carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, regardless of whether the handgun is concealed, at any meeting of a governmental entity.

Id. § 46.035(b)(2), (c) (footnote added). Section 46.035, subsections (b) and (c) are violated only when the handgun is carried "under the authority of Subchapter H, Chapter 411," the concealed handgun statutes. Id. When a person is authorized by other law to carry a handgun or other firearm, the person is not carrying the weapon "under the authority of Subchapter H, Chapter 411, Government Code." Id. Thus, to answer your first two questions, Penal Code section 46.035, subsections (b) and (c) are not violated when a person is lawfully carrying a handgun pursuant to a school board's written regulations and authorization because such a person is not carrying the weapon "under the authority of Subchapter H, Chapter 411, Government Code."

Your third question is whether "serving as a 'Guardian' under a school district's 'Guardian Plan' [promulgated pursuant to section 46.03(a)(1)] fall[s] within the scope of official duties of a school board trustee under Texas Education Code § 11.1511(b)(15)." Request Letter at 6. Because the issue of scope of official duties may arise in different legal contexts, it is difficult to give a categorical answer. Subsection 11.1511(b)(15) of the Education Code provides that a "board shall ... carry out other powers and duties as provided by this code or other law." TEX. EDUC. CODE ANN. § 11.1511(b)(15) (West 2012). A board of "trustees as a body corporate [has] the exclusive power and duty to govern and oversee the management of the public schools of the district." Id. § 11.151(b) (setting forth the authority of "trustees as a body corporate"). Under Education Code subsection 11.151(b), a board may promulgate written regulations and authorization as provided by Penal Code subsection 46.03(a)(1). A person acting according to a school board's written regulations and authorization would likely be acting within the scope of official duties.[3]

Your fourth question concerns House Bill 1009, which creates a new category of law enforcement officer designated as a school marshal. See Act of May 22, 2013, 83rd Leg., R.S., ch. 655, 2013 Tex. Gen. Laws 1742, 1742-46 ("House Bill 1009"). You wish to know if school district trustees may appoint one employee to serve as a school marshal under House Bill 1009 and authorize another person to serve as a Guardian under a district Guardian Plan pursuant to subsection 46.03(a)(1) of the Penal Code. Request Letter at 6. As discussed above, subsection 46.03(a)(1) creates an exception to the prohibition of carrying firearms on school premises for persons acting pursuant to a school district's written regulations and authorization. TEX. PENAL CODE ANN. § 46.03(a)(1) (West 2011). House Bill 1009 authorizes a school district to appoint a licensed, trained employee as a school marshal and affirmatively authorizes a school marshal to carry a concealed handgun on school premises according to district policy. See House Bill 1009, §§ 2-7, at 1742-45 (adding TEX. CODE CRIM. PROC. art. 2.127, TEX. EDUC. CODE § 37.0811, TEX. GOV'T CODE § 411.1871, TEX. OCC. CODE §§ 1701.001(8), .260, .301). No provision in House Bill 1009 conflicts with or is in any way inconsistent with subsection 46.03(a)(1) of the Penal Code. Accordingly, a school board may appoint one person to serve as a school marshal under section 37.0811 of the Education Code and authorize another person to serve under the district's regulations and authorization under subsection 46.03(a)(1) of the Penal Code.

SUMMARY

Penal Code section 46.035, subsections (b) and (c) are not violated by a person who is lawfully carrying a handgun pursuant to a school board of trustees' written regulations and authorization under subsection 46.03(a)(1). A person acting according to such regulations and authorization would likely be acting within the scope of official duties. A school board may appoint one person to serve as a school marshal under section 37.0811 of the Education Code and authorize another person to serve under the district's regulations and authorization under subsection 46.03(a)(1) of the Penal Code.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

[1] See Letter from Hon. Joseph C. Pickett, House Comm. on Homeland Sec. & Pub. Safety, to Hon. Greg Abbott, Tex. Att'y Gen. at 1, 6 (Oct. 21, 2013), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] In section 46.035, "'[p]remises' means a building or a portion of a building. The term does not include any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area." TEX. PENAL CODE ANN. § 46.035(f)(3) (West Supp. 2013).

[3] Because of the legal issues that could arise in particular contexts, a school board may wish to seek the assistance of legal counsel in developing a Guardian program involving a trustee. Cf. Tex. Att'y Gen. Op. No. GA-0127 (2003) at 2 (discussing aspects of the common-law doctrine of self-employment incompatibility).