Can a private nonprofit that leases city-owned property in Texas ban licensed handgun carry on it?

Plain-English summary

The Erath County Attorney explained that at least two nonprofit agencies had offices on land owned by a city. The nonprofits were the only entities at those locations, no government offices were there, and the city had no say in how the nonprofits operated, with all decisions made by an independent board of directors. Given that setup, she asked the AG whether handguns could be prohibited by a nonprofit whose offices sit on city-owned property. The question turned on section 411.209 of the Government Code and sections 30.06 and 30.07 of the Penal Code.

On the first point, the AG explained that the Legislature enacted section 411.209 to stop government bodies from improperly posting "no licensed handguns" notices. The statute lets the Attorney General collect a civil penalty from "a state agency or a political subdivision of the state" that posts such a notice for a place where carrying is not actually barred by Penal Code section 46.03 or 46.035. By its own terms, that penalty reaches only government entities. The statute says nothing about whether a private entity, including an independent nonprofit, may tell license holders that handguns are not allowed in its offices.

The AG then applied that to the facts. If a private entity were operating jointly with a government body, or had been hired to perform government functions, fact questions could arise about who really posted a notice. But on the facts described, the nonprofit had an arms-length lease of city property and was not otherwise affiliated with the city. Citing the general rule that a landlord gives up possession of leased premises to the tenant, the AG concluded that section 411.209 does not apply to a city that leases property to a nonprofit which then posts a no-handgun notice. So long as the government landlord has no control over the decision to post, it is not the entity responsible for the posting and is not subject to the civil penalty.

The second question was whether the criminal trespass-by-handgun offenses in Penal Code sections 30.06 (concealed) and 30.07 (open carry) would make it a crime for a license holder to enter the leased property. Those sections make it an offense to carry "on property of another without effective consent" after receiving notice that entry by a license holder was forbidden, but they contain an exception when the property "is owned or leased by a governmental entity" and is not a place where carrying is independently barred by sections 46.03 or 46.035. Reading the statute's plain words, the AG concluded that the exception turns on government ownership and contains no carve-out for government property leased to a private entity. A court would therefore likely conclude that a license holder carrying on such property is excepted from the offenses in 30.06(a) and 30.07(a), meaning no criminal liability.

The AG added an important caveat in a footnote: even if criminal enforcement is unavailable, that does not necessarily defeat the private entity's claim for ordinary civil trespass. A property owner generally has the right to exclude others, and every unauthorized entry is a trespass. So the nonprofit could still restrict entry by people carrying handguns through civil-trespass principles, even though the criminal posting offenses would not apply.

Currency note

This opinion was issued in 2016. 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. Texas handgun-carry law in particular has changed since 2016, including the 2021 enactment of permitless ("constitutional") carry, so confirm the current text of the Penal Code and Government Code provisions discussed here before relying on them.

What the opinion meant for those who asked

The Erath County Attorney (as the opinion answered): The opinion told her that the civil penalty in Government Code section 411.209 reaches only government agencies and political subdivisions, not the private nonprofits she described. A city leasing land to an independent nonprofit would not face that penalty for the nonprofit's no-handgun posting, provided the city had no control over the decision to post.

Cities and political subdivisions that lease property (as the opinion described their position): Under the opinion, a government landlord that hands over possession of property to an independent private tenant, and that has no control over the tenant's posting decisions, is not the entity responsible for a no-handgun notice and is not exposed to the section 411.209 civil penalty. The opinion flagged that the answer could differ if the government and the private entity operate jointly or the private entity performs government functions.

The nonprofits leasing the property (as the opinion described it): The opinion treated the criminal trespass-by-handgun offenses as likely not applying to a license holder on government-owned property leased to a private entity, but it noted that the nonprofit could still rely on ordinary civil-trespass law, which generally lets a property holder exclude others, to keep handguns off the property it leases.

Common questions

Can a city be penalized for a no-handgun sign posted by a nonprofit on city land? As the opinion read the law, no, not on the facts described. The civil penalty in Government Code section 411.209 applies only to a state agency or political subdivision. A city that leases property to an independent nonprofit and has no control over the nonprofit's posting decision is not the responsible entity and would not face the penalty.

Does the no-gun-zone civil penalty apply to private organizations at all? No. The opinion explained that section 411.209 is directed at government bodies. It does not address whether a private entity, including an independent nonprofit, may tell license holders that handguns are not allowed in its offices.

Is it a crime to carry a licensed handgun onto government property leased to a private group? The opinion concluded a court would likely say no. The trespass-by-handgun offenses in Penal Code sections 30.06 and 30.07 contain an exception for property "owned or leased by a governmental entity," and the opinion read that exception to apply even when the government property is leased to a private entity, so long as carrying is not otherwise barred by sections 46.03 or 46.035.

So can the nonprofit keep guns out or not?
The opinion drew a line between criminal and civil enforcement. It concluded the criminal posting offenses likely would not apply, but it noted in a footnote that the nonprofit could still pursue ordinary civil trespass. A property holder generally may exclude others, so the nonprofit could restrict entry by people carrying handguns through trespass principles even without a criminal remedy.

Background and statutory framework

The Eighty-fourth Legislature enacted section 411.209 of the Government Code, which bars a state agency or political subdivision from posting a notice under Penal Code section 30.06, or any sign referring to that law or to a handgun license, that a license holder is prohibited from a place owned or leased by the governmental entity, unless carrying there is already prohibited by Penal Code section 46.03 or 46.035 (Tex. Gov't Code § 411.209(a)). A government entity that violates the provision is liable for a civil penalty administered by the Attorney General (id. § 411.209(b)-(h)). By its terms the prohibition applies only to "a state agency or a political subdivision of the state" and does not address private entities (id. § 411.209(a)).

When a landlord leases property, it generally relinquishes possession or occupancy to the tenant (Levesque v. Wilkens, 57 S.W.3d 499, 504 (Tex. App.-Houston [14th Dist.] 2001, no pet.)). Penal Code sections 30.06(a) and 30.07(a) make it an offense for a license holder to carry, concealed or openly, "on property of another without effective consent" after receiving notice that entry by a license holder was forbidden, but subsections 30.06(e) and 30.07(e) except property "owned or leased by a governmental entity" that is not a place where carrying is prohibited under section 46.03 or 46.035 (Tex. Penal Code §§ 30.06(a), (e), 30.07(a), (e)). In construing statutes, the words the Legislature chooses are the surest guide to legislative intent, and courts discern intent from the plain meaning of the words, resorting to rules of construction or extrinsic aids only when the words are ambiguous (Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex. 1999); Entergy Gulf States, Inc., 282 S.W.3d 433, 437, 443 (Tex. 2009)). Even where criminal enforcement is unavailable, a realty owner generally has the right to exclude others, and every unauthorized entry on the land of another is a trespass (Severance v. Patterson, 370 S.W.3d 705, 709 (Tex. 2012); Coastal Oil & Gas Corp. v. Garza Energy Tr., 268 S.W.3d 1, 12 n.36 (Tex. 2008)).

Citations

Statutes:

• Tex. Gov't Code § 411.209 (civil penalty for improper government no-handgun postings)
• Tex. Penal Code §§ 30.06, 30.07 (trespass by license holder with a concealed or openly carried handgun)
• Tex. Penal Code §§ 46.03, 46.035 (places where handgun carrying is prohibited)

Cases:

• Levesque v. Wilkens, 57 S.W.3d 499 (Tex. App.-Houston [14th Dist.] 2001, no pet.)
• Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864 (Tex. 1999)
• Entergy Gulf States, Inc., 282 S.W.3d 433 (Tex. 2009)
• Severance v. Patterson, 370 S.W.3d 705 (Tex. 2012)
• Coastal Oil & Gas Corp. v. Garza Energy Tr., 268 S.W.3d 1 (Tex. 2008)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0108
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2016/kp0108.pdf

Original opinion text

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

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

August 9, 2016

The Honorable Lisa Pence
Opinion No. KP-0108
Erath County Attorney
100 West Washington
Re: Whether a nonprofit entity that has
Stephenville, Texas 76401
offices on land owned by a municipality may
restrict the licensed carrying of handguns on the property (RQ-0097-KP)

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." Request Letter at 1. 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. Id. at 2. 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 turn.

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. § 411.209(b)-(h).

Relevant to your request, the prohibition in subsection 411.209(a) applies only to "a state agency or political subdivision of the state." Id. § 411.209(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 § 411.209(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 § 411.209(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 if the 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).

[Footnote 2: Such a conclusion would not necessarily preclude a private entity's claim for civil trespass. "Generally, an owner of realty has the right to exclude all others from use of the property[.]" Severance v. Patterson, 370 S.W.3d 705, 709 (Tex. 2012). "[E]very unauthorized entry upon land of another is a trespass[,] even if no damage is done or injury is slight." Coastal Oil & Gas Corp. v. Garza Energy Tr., 268 S.W.3d 1, 12 n.36 (Tex. 2008) (quotation marks omitted). Thus, while criminal enforcement may not be available, we find no authority that prohibits the private entity from restricting entry onto that leased property for individuals carrying handguns.]

SUMMARY

Section 411.209 of the Government Code creates a civil penalty for a state agency or a political subdivision that provides notice that a license holder carrying a handgun is prohibited on property owned by the governmental entity unless carrying a handgun in such locations is expressly prohibited under the Penal Code. Section 411.209 applies only to a state agency or political subdivision of the State and 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 the private entity's offices. As long as the state agency or political subdivision leasing the property to the private 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.

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.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee