Can a license holder carry a concealed handgun into a Texas junior college board of trustees meeting?

Plain-English summary

A House committee chair asked the AG several questions about whether the board of trustees of a public junior college may allow licensed concealed handguns in the board's open meetings. He asked whether the board has authority under Government Code section 411.2031(d-1) to authorize concealed carry by license holders in the room where an open meeting is held, whether it may permit concealed carry by omitting the Penal Code section 30.06 trespass notice, and whether a board that wants to permit concealed carry at meetings must expressly authorize it in its written campus-carry rules. The request was limited to licensed concealed carry, not open carry.

The AG set out the statutory backdrop. In 2015 the Legislature enacted Senate Bill 11, the campus carry law, adding Government Code section 411.2031 to the subchapter governing concealed-handgun licenses. Section 411.2031(b) lets a license holder carry a concealed handgun on the campus of an institution of higher education, which includes junior college districts. Section 411.2031(d-1) lets institutions establish reasonable rules about concealed carry on campus, but they may not adopt rules that generally prohibit, or have the effect of generally prohibiting, license holders from carrying concealed handguns on campus; if an institution bars concealed handguns in a particular area, it must give effective notice under Penal Code section 30.06.

Carrying a concealed handgun into an open meeting also implicates Penal Code section 46.035(c), which makes it an offense for a license holder to carry a handgun into the room of an open meeting of a governmental entity when the meeting is an open meeting subject to chapter 551 of the Government Code and the entity gave the required notice. But section 46.035(i) says subsection (c) does not apply if the actor was not given effective notice under Penal Code section 30.06 or 30.07. Reading section 46.035 as a whole, the AG concluded that without an effective trespass notice, section 46.035(c) does not apply to a license holder carrying a concealed handgun into an open meeting, and the license holder would have a defense to prosecution under section 46.035(i), as a court of appeals had recognized.

Given that, the AG said a rule expressly allowing concealed handguns into an open board meeting is unnecessary. The Legislature permitted concealed handguns on campus and gave institutions rulemaking authority under section 411.2031(d-1) mainly to identify the particular areas on campus where concealed handguns are prohibited. A rule allowing concealed handguns in a meeting held on campus would just allow them in an area where they are already permitted. Still, section 411.2031(d-1) does not prohibit a board from adopting such a rule to affirm or publicize a license holder's right to carry in the open meeting location.

Currency note

This opinion was issued in 2017. 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.

What the opinion meant for those who asked

The requesting committee chair and the Legislature (as the opinion described them): The opinion explained that on campus, where campus carry applies, a license holder carrying a concealed handgun into an open board meeting with no section 30.06 notice would have a defense, and that an express authorizing rule is unnecessary but permitted.

Junior college boards of trustees (as the opinion described them): The opinion treated their section 411.2031(d-1) rulemaking authority as mainly a power to identify areas where concealed handguns are prohibited, and said they need not adopt a rule to allow concealed carry in meetings already on campus, though they may do so to affirm or publicize the right.

License holders (as the opinion described them): The opinion described a license holder who carries a concealed handgun into an on-campus open board meeting with no posted section 30.06 trespass notice as having a defense to prosecution under section 46.035(i).

Common questions

Can someone with a license carry a concealed handgun into a junior college board meeting?
Under this opinion, on campus where campus carry applies, a license holder who does so when no Penal Code section 30.06 trespass notice is posted would have a defense to prosecution under section 46.035(i).

Does the board have to pass a rule to allow it?
No. The opinion said an express rule allowing concealed handguns in an on-campus meeting is unnecessary, because campus carry already permits them there.

Can the board still pass such a rule if it wants to?
Yes. The opinion said section 411.2031(d-1) does not prohibit a board from adopting a rule to affirm or publicize a license holder's right to carry in the open meeting location.

What is the section 30.06 notice?
The opinion described it as the trespass notice a property owner or institution uses to give a license holder effective notice that concealed handguns are prohibited in a location, with specific statutory language.

What about open carry?
The request was limited to concealed carry. The opinion noted the board did not seek to allow licensed open carry, so the analysis addressed concealed handguns.

Background and statutory framework

The 2015 campus carry law (Senate Bill 11) added Government Code section 411.2031 to subchapter H of chapter 411, which governs concealed-handgun licenses (Tex. Gov't Code §§ 411.171-.209). Section 411.2031(b) authorizes a license holder to carry a concealed handgun on the campus of an institution of higher education, which includes junior college districts, and section 411.2031(d-1) authorizes institutions to establish reasonable rules about concealed carry on campus while barring rules that generally prohibit concealed handguns, requiring section 30.06 notice for any area where carry is prohibited (Tex. Gov't Code §§ 411.2031(b), 411.2031(d-1); Tex. Att'y Gen. Op. No. KP-0051 (2015), recognizing that whether particular rules satisfy the subsection involves fact questions).

Carrying a concealed handgun into an open meeting implicates Penal Code section 46.035(c), which makes it an offense for a license holder to carry a handgun into the room of an open meeting of a governmental entity subject to chapter 551 of the Government Code when the entity gave the required notice (Tex. Penal Code § 46.035(c); Tex. Gov't Code § 551.041). But section 46.035(i) provides that subsection (c) does not apply if the actor was not given effective notice under Penal Code section 30.06 or 30.07 (Tex. Penal Code § 46.035(i); Tex. Penal Code §§ 30.06, 30.06(a), 30.06(c)(3), 30.07(a)). Reading the statute as a whole (R.R. Comm'n v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 628 (Tex. 2011)), the AG concluded that without an effective trespass notice, section 46.035(c) does not apply, and a license holder carrying a concealed handgun into an open junior college board meeting with no posted section 30.06 notice has a defense to prosecution under section 46.035(i) (Tafel v. State, No. 10-14-00020-CR, 2016 WL 4573106, at *1-2 (Tex. App.—Waco 2016, pet. ref'd); Tex. Att'y Gen. Op. No. KP-0108 (2016)).

Because campus carry already permits concealed handguns on campus and section 411.2031(d-1) rulemaking is mainly to identify areas where they are prohibited, a rule allowing concealed handguns in an on-campus meeting would allow them where they are already permitted, making such a rule unnecessary. The AG concluded section 411.2031(d-1) nonetheless does not prohibit a board from adopting the rule to affirm or publicize a license holder's right to carry in the open meeting location.

Citations

Statutes:

• Tex. Gov't Code §§ 411.171-.209, 411.2031(b), 411.2031(d-1), 551.041
• Tex. Penal Code §§ 30.06, 30.06(a), 30.06(c)(3), 30.07(a), 46.035(c), 46.035(i)
• Tex. Att'y Gen. Op. Nos. KP-0051 (2015), KP-0108 (2016)

Cases:

• R.R. Comm'n v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619 (Tex. 2011)
• Tafel v. State, No. 10-14-00020-CR, 2016 WL 4573106 (Tex. App.—Waco 2016, pet. ref'd)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0167
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2017/kp0167.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

October 3, 2017

The Honorable Jim Murphy Opinion No. KP-0167
Chair, Committee on Special Purpose Districts
Texas House of Representatives Re: Whether the board of trustees of a public
Post Office Box 2910 junior college may allow licensed concealed
Austin, Texas 78768-2910 handguns in open meetings of the board of
trustees (RQ-0158-KP)

Dear Representative Murphy:

    You ask several questions regarding the authority of the board of trustees of a junior college district to allow licensed concealed handguns in open meetings of the board of trustees. [1] You ask whether the board of trustees of a public junior college has authority under Government Code subsection 411.2031(d-1) to "authorize concealed carry of handguns by license holders in the room or rooms where an open meeting of the board of trustees is being held." See Request Letter at 1. You also ask whether the board of trustees of a public junior college may permit the concealed carry of handguns by license holders in its open meetings by omitting notice under Penal Code section 30.06. [2] See id. Finally, you ask whether a board of trustees of a public junior college that desires to permit the concealed carry of handguns at board meetings must "expressly authorize such conduct in its written rules established pursuant to Government Code section 411.2031(d-1)." See id. These questions arise from the interplay among provisions in the Government Code and the Penal Code, which we summarize for context.

    In 2015, the Legislature enacted Senate Bill 11, also known as the campus carry bill. See Act of May 31, 2015, 84th Leg., R.S., ch. 438, § 1, 2015 Tex. Gen. Laws 1723, 1723-27; see also Tex. Att'y Gen. Op. No. KP-0051 (2015) at 1. The campus carry legislation added section 411.2031 to subchapter H, chapter 411 of the Government Code, which subchapter generally governs licenses to carry concealed handguns. See Act of May 31, 2015, 84th Leg., R.S., ch. 438, § 1, sec. 411.2031, 2015 Tex. Gen. Laws 1723, 1723-24; TEX. GOV'T CODE §§ 411.171-.209 (subchapter H). Subsection 411.2031(b) authorizes a license holder to carry a concealed handgun on the campus of an institution of higher education. TEX. GOV'T CODE § 411.2031(b). Subsection 411.2031(d-1) authorizes public institutions of higher education, which include junior college districts, to "establish reasonable rules, regulations, or other provisions regarding the carrying of concealed handguns by license holders on the campus of the institution or on premises located on the campus of the institution." Id. § 411.2031(d-1). The institution, in establishing its rules or regulations, "may not establish provisions that generally prohibit or have the effect of generally prohibiting license holders from carrying concealed handguns on the campus of the institution." Id. § 411.2031(d-1); see Tex. Att'y Gen. Op. No. KP-0051 (2015) at 3 (recognizing that the question whether particular rules and regulations satisfy subsection 411.2031(d-1) involves questions of fact). In the event an institution prohibits concealed handguns in certain areas, subsection 411.2031(d-1) requires it to "give effective notice under Section 30.06, Penal Code, with respect to any portion of a premises on which license holders may not carry." TEX. GOV'T CODE § 411.2031(d-1).

    The carrying of a concealed handgun into an open meeting of a junior college district's board of trustees implicates Penal Code subsection 46.035(c), which provides:

            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 or carried in a shoulder or belt holster, in the room or rooms where a meeting of a governmental entity is held and if the meeting is an open meeting subject to chapter 551, Government Code, and the entity provided notice as required by that chapter.

TEX. PENAL CODE § 46.035(c); see also TEX. GOV'T CODE § 551.041 (requiring a governmental body to provide "written notice of the date, hour, place, and subject of each meeting held by the governmental body"). Yet, subsection 46.035(c) does "not apply if the actor was not given effective notice under Section 30.06 or 30.07." TEX. PENAL CODE § 46.035(i). Penal Code section 30.06 details the offense of criminal trespass by license holders with concealed handguns. See id. § 30.06(a) (relating to concealed handguns); see also id. § 30.07(a) (relating to openly carried handguns). Section 30.06 provides specific language to give effective notice (hereinafter "trespass notice") to a license holder that the concealed handgun is prohibited in the location. Id. § 30.06(c)(3) (providing language relating to concealed handguns).

    With this context, we turn to your questions. Fundamental to each of them is the issue of how to legally authorize concealed handguns at an open meeting of a junior college district's board of trustees. Rather than address each question separately, we will opine on how to accomplish that end. Considering Penal Code section 46.035 as a whole, subsection (i) expressly provides that subsection (c) "do[es] not apply" if the actor was not given effective notice under Penal Code sections 30.06 or 30.07. TEX. PENAL CODE § 46.035(i); see also R.R. Comm'n v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 628 (Tex. 2011) ("We generally avoid construing individual provisions of a statute in isolation from the statute as a whole."). Thus, the lack of an effective trespass notice creates a circumstance in which subsection 46.035(c) does not apply to a license holder carrying a concealed handgun into an open meeting. See id. § 46.035(i); see also Tex. Att'y Gen. Op. No. KP-0108 (2016) at 3 n.2 (acknowledging another circumstance in which criminal enforcement of trespass by a license holder of a concealed handgun may not be available). Because subsection 46.035(c) "do[es] not apply" without the appropriate trespass notice, a license holder who carries a concealed handgun into the room of an open meeting of a junior college district board meeting, in which no 30.06 trespass notice was posted, has a defense to prosecution under Penal Code subsection 46.035(i). See Tafel v. State, No. 10-14-00020-CR, 2016 WL 4573106, at *1-2 (Tex. App.—Waco 2016, pet. ref'd) (acknowledging that subsection 46.035(i) is a defense to prosecution of subsection 46.035(c)).

    Given this conclusion, a rule expressly allowing concealed handguns into an open meeting of a junior college district board is unnecessary. In enacting subsections 411.2031(b) and 411.2031(d-1), the Legislature permitted concealed handguns on college campuses but authorized institutions to impose limited restrictions prohibiting concealed handguns in particular areas on campus. TEX. GOV'T CODE § 411.2031(b), (d-1). In this scheme, the Legislature likely intended the institution's rulemaking authority under subsection 411.2031(d-1) as a grant of authority to the institution to identify the particular areas on campus from which the institution prohibits concealed handguns. See id. Here, provided the meeting is on campus or on the premises of the campus, a rule such as you describe would essentially allow concealed handguns in an area where concealed handguns are already permitted. Thus, while a rule allowing concealed handguns into an open meeting of a junior college district board is unnecessary, subsection 411.2031(d-1) does not prohibit a board from adopting the rule to affirm or publicize a license holder's right to carry the concealed handgun in the open meeting location.

                                SUMMARY

                 A license holder who carries a concealed handgun into an open meeting of a junior college district board of trustees in which no Penal Code section 30.06 trespass notice was posted would have a defense to the prosecution of Penal Code subsection 46.035(c).

                 Though unnecessary within the context of Government Code subsection 411.2031(d-1), a junior college district board of trustees could adopt a rule authorizing concealed handguns in its open meetings to affirm or publicize a license holder's right to carry the concealed handgun into the open meeting held on the institution's campus.

                                      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

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Jim Murphy, Chair, Comm. on Special Purpose Dists., Tex. House of Representatives, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Apr. 18, 2017), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] You tell us the board of trustees "does not seek to allow licensed open carry of handguns" in its meetings, so you limit your opinion request to licensed concealed carry. Id. at 3, n.1.