Can a Texas city use zoning to keep gun stores away from schools or limit where they can open?

Plain-English summary

Texas tightly limits how cities can regulate guns. The state senator who chairs the Senate Committee on Veterans Affairs and Border Security asked the AG whether a city may use zoning and similar tools to control where firearm and ammunition stores operate, pointing to proposals that would ban gun and ammunition sales near schools or churches, push such businesses into only the densest commercial areas, or keep gun shops a fixed distance from schools, parks, and places of worship. The concern was that a city might claim these are ordinary land-use rules rather than gun regulation.

The governing statute is Local Government Code section 229.001(a)(1). It says that, notwithstanding any other law, a municipality may not adopt regulations relating to the transfer, private ownership, keeping, transportation, licensing, or registration of firearms, air guns, knives, ammunition, or firearm or air gun supplies. The AG noted that "transfer" is commonly understood to include a sale, and that the Penal Code's unlawful-transfer offense likewise covers sales. There is an exception in subsection 229.001(b)(3): the prohibition does not affect a city's authority under other law to regulate the use of property, the location of a business, or uses at a business through its fire code, zoning ordinance, or land-use regulations, but only so long as those rules are not used to circumvent the intent of subsection (a).

Putting those together, the AG concluded that the ordinances described cross the line. A regulation that expressly identifies and bars gun stores from operating in a specific area, or that singles out firearm and ammunition sales, relates to the transfer of firearms and is preempted by subsection 229.001(a)(1). The city's general zoning power under subsection (b)(3) does not save an ordinance whose target is firearm sales.

The senator also asked whether the statute's list of forbidden subjects applies only all-together or item-by-item. The AG focused on the word "or." Because the Legislature listed the activities with the disjunctive "or," the prohibition reaches any one or more of them. So a city that regulates firearm transfers but leaves licensing, registration, and transportation alone still violates subsection 229.001(a)(1); it cannot avoid the statute by regulating only one item on the list.

Finally, the senator asked about consequences. The AG explained that subsection 229.001(f) lets the Attorney General sue for a temporary or permanent injunction against a city that adopts a regulation violating the section, and that any plaintiff with standing under the Texas or U.S. Constitution could seek declaratory or injunctive relief against enforcement of an unconstitutional ordinance. As for the council members themselves, the AG concluded that individual members who voted for an ordinance later found to violate section 229.001 or the Texas or U.S. Constitution would likely be immune from personal liability under qualified and official immunity doctrines.

Currency note

This opinion was issued in 2019. 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. (The opinion itself noted that House Bill 3231, then pending, would revise section 229.001 consistent with its conclusion.)

What the opinion meant for those who asked

The Legislature and the requesting senator: At the time of the opinion, the AG read section 229.001 to preempt city ordinances that single out firearm or ammunition sales or bar gun stores from a specific area, and to apply item-by-item rather than only to the full list. The opinion confirmed that a city could not avoid preemption by regulating only transfers.

Cities and city attorneys: The opinion explained that the general zoning exception in subsection (b)(3) does not authorize ordinances aimed at firearm sales, and that the Attorney General may seek an injunction against a city that adopts one.

Gun and ammunition retailers: The opinion described the legal basis for challenging a city ordinance that targets their business location, including the AG's enforcement power and private suits for declaratory or injunctive relief.

Common questions

Can a Texas city ban gun stores near schools or churches through zoning?
The AG concluded no. An ordinance that singles out firearm or ammunition sales, or bars gun stores from a specific area, relates to the transfer of firearms and is preempted by Local Government Code section 229.001(a)(1).

Doesn't the law let cities regulate where businesses go?
Generally yes, but the AG explained that the zoning exception in subsection 229.001(b)(3) applies only when the regulation is not used to circumvent the intent of subsection (a). An ordinance aimed at firearm sales does not qualify.

Can a city regulate just gun sales and avoid the law because it isn't touching licensing or registration?
No. The AG concluded the statute's disjunctive "or" means the ban covers any one of the listed activities, so regulating transfers alone still violates it.

Who can enforce this, and are council members personally on the hook?
The AG said the Attorney General may sue for an injunction, and any person with constitutional standing may seek declaratory or injunctive relief. Individual council members who voted for such an ordinance would likely be immune from personal liability.

Background and statutory framework

Local Government Code section 229.001(a)(1) preempts municipal regulations relating to the transfer, private ownership, keeping, transportation, licensing, or registration of firearms, air guns, knives, ammunition, or firearm or air gun supplies. Subsection 229.001(b)(3) preserves a city's authority under other law to regulate property use and business location through its fire code, zoning ordinance, or land-use regulations, unless used to circumvent subsection (a). The AG read "transfer" to include a sale (Webster's Third New International Dictionary; Penal Code section 46.06 on unlawful transfer of weapons). Local Government Code chapter 211 supplies general zoning authority (sections 211.001, 211.003(a)(5)), and a home-rule city's power may not be inconsistent with the Constitution or general laws (Texas Constitution article XI, section 5(a)), while a general-law city may not adopt an ordinance inconsistent with state law (section 51.012).

On the item-by-item question, the AG applied the rule that statutory construction seeks legislative intent from plain language (Cadena Comercial USA Corp. v. Texas Alcoholic Beverage Commission; Prairie View A&M University v. Chatha), and that the Legislature typically uses "or" as a disjunctive (Spradlin v. Jim Walter Homes, Inc.; Jones v. State, citing Perez v. State), concluding the prohibition reaches any one or more listed items. On enforcement and consequences, the AG cited section 229.001(f) (Attorney General injunction), 28 U.S.C. section 2201 and Civil Practice and Remedies Code section 37.003 (declaratory judgments), and Harlow v. Fitzgerald and Kassen v. Hatley (federal qualified immunity and state official immunity), quoting a concurrence in Zadeh v. Robinson on the qualified-immunity standard. The opinion noted House Bill 3231, then pending, would revise section 229.001 consistent with the conclusion, and that the City of San Antonio reported it had not adopted any such ordinance.

Citations

Constitutional, statutory, and session-law provisions:

• Tex. Loc. Gov't Code § 229.001(a)(1); § 229.001(b)(3); § 229.001(f); § 51.012; § 211.001; § 211.003(a)(5)
• Tex. Penal Code § 46.06
• Tex. Const. art. XI, § 5(a)
• Tex. Civ. Prac. & Rem. Code § 37.003
• 28 U.S.C. § 2201
• Tex. H.B. 3231, 86th Leg., R.S. (2019)

Cases:

• Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage Comm'n, 518 S.W.3d 318, 325 (Tex. 2017)
• Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 507 (Tex. 2012)
• Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 581 (Tex. 2000)
• Jones v. State, 175 S.W.3d 927, 932 (Tex. App.-Dallas 2005, no pet.)
• Perez v. State, 11 S.W.3d 218, 225 (Tex. Crim. App. 2000)
• Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982)
• Kassen v. Hatley, 887 S.W.2d 4, 8-12 (Tex. 1994)
• Zadeh v. Robinson, 902 F.3d 483, 498 (5th Cir. 2018)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0252
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2019/kp0252.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

May 24, 2019

The Honorable Donna Campbell, M.D. Opinion No. KP-0252
Chair, Committee on Veterans Affairs
and Border Security Re: Authority of municipalities to regulate
Texas State Senate firearm and ammunition sales through zoning
Post Office Box 12068 and other regulations (RQ-0269-KP)
Austin, Texas 78711-2068

Dear Senator Campbell:

     You ask generally about the authority of a municipality to regulate firearm and ammunition sales through zoning and other regulations.1 You tell us that "some Texas cities have begun pursuing gun-control measures that regulate firearms and ammunition sales in ways that seem likely to impinge upon the individual freedoms of Texas citizens." Request Letter at 1. You state that the regulations "include prohibitions against everything from sporting goods stores to gun shows within vast portions of some cities." Id.

    You refer us to Local Government Code subsection 229.001(a)(1), which prohibits a city from regulating "the transfer, private ownership, keeping, transportation, licensing, or registration of firearms, ... or firearm ... supplies." TEX. LOC. GOV'T CODE § 229.001(a)(1); Request Letter at 1. You tell us the San Antonio city attorney seems to construe this provision to allow a city to "freely regulate gun sales simply because it is not regulating licensing, registration, or transportation of firearms as well." Request Letter at 1-2 (noting also that the City of San Antonio observed that the City of Galveston adopted such regulations).2 With this background, you ask three questions. See id. at 3-4.

    You first ask whether section 229.001 of the Local Government Code preempts a city from enacting regulations that (1) prohibit firearm and ammunition sales within 1,000 feet of any school or church; (2) restrict the location of a business that sells guns or ammunition to the highest-density commercial areas; and (3) prohibit "gun shops" from locating within 200 feet of schools, public parks, or places of worship.3 Id. at 2, 3. Local Government Code subsection 229.001(a)(1) provides that "[n]otwithstanding any other law, ... a municipality may not adopt regulations relating to: (1) the transfer, private ownership, keeping, transportation, licensing, or registration of firearms, air guns, knives, ammunition, or firearm or air gun supplies." TEX. LOC. GOV'T CODE § 229.001(a)(1). Subsection 229.001(b)(3) creates an exception providing that the prohibition in subsection (a) does not affect a municipality's authority under another law to "regulate the use of property, the location of a business, or uses at a business under the municipality's fire code, zoning ordinance, or land-use regulations as long as the code, ordinance, or regulations are not used to circumvent the intent of Subsection (a)."4 Id. § 229.001(b)(3).

     Subsection 229.001(a)(1) prohibits municipal regulations relating to the transfer of firearms and firearm ammunition. Id. § 229.001(a)(1). The term "transfer" is commonly understood to include a sale. See WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY at 2427 (2002) (defining "transfer" to mean "the conveyance of right, title, or interest in either real or personal property from one person to another by sale, gift, or other process"); see also TEX. PENAL CODE § 46.06 (providing for the offense of unlawful transfer of weapons that encompasses the sale, rental, lease, loan, or gift of a handgun). The regulations you describe prohibit or restrict a business or business location solely because the business involves the sale of firearms and ammunition. While subsection 229.001(b)(3) acknowledges a municipality's ongoing authority to regulate the location of businesses generally, a regulation that expressly identifies and prohibits gun stores from operating in a specific area relates to the transfer of firearms and is prohibited by subsection 229.001(a)(1). Similarly, an ordinance singling out firearm and ammunition sales relates to the transfer of firearms and is prohibited.5

    You next ask whether subsection 229.001(a)(1) prohibits the listed actions only as a whole or as to any one of the listed actions. See Request Letter at 4. In addressing your question, we recognize that the goal of statutory construction "is to ascertain and give effect to the Legislature's intent." Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage Comm'n, 518 S.W.3d 318, 325 (Tex. 2017). The surest sign of that intent is the plain language of the statute. See Prairie View A&M Univ. v. Chatha, 381 S.W.3d 500, 507 (Tex. 2012). The list in subsection 229.001(a)(1)-the "transfer, private ownership, keeping, transportation, licensing, or registration of firearms, ... or firearm ... supplies"-uses the word "or." TEX. LOC. GOV'T CODE § 229.001(a)(1) (emphasis added). The Legislature typically uses the word "or" as a disjunctive. See Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 581 (Tex. 2000). "It separates words or phrases in the alternate relationship, indicating that either of the separated words or phrases may be employed without the other." Jones v. State, 175 S.W.3d 927, 932 (Tex. App.-Dallas 2005, no pet.) (citing Perez v. State, 11 S.W.3d 218, 225 (Tex. Crim. App. 2000)). The Legislature's use of the disjunctive here evidences its intent to treat the listed activities in subsection 229.001(a)(1) as separate alternatives. Thus, subsection 229.001(a)(1)'s prohibition encompasses any one (or more) of the listed items. Accordingly, to the extent a municipality regulates the transfer of firearms but not also licensing, registration, or transportation of firearms, it nonetheless violates subsection 229.001(a)(1).

    Your last question concerns the consequences to the members of the city council for violating either section 229.001 or the Texas or the U.S. Constitution. See Request Letter at 4. Subsection 229.001(f) authorizes the Attorney General to "bring an action in the name of the state to obtain a temporary or permanent injunction against a municipality adopting a regulation in violation of this section." TEX. LOC. GOV'T CODE § 229.001(f). In addition, any plaintiff with standing under the Texas Constitution or the U.S. Constitution could bring an action seeking declaratory or injunctive relief against enforcement of an unconstitutional ordinance. See 28 U.S.C. § 2201 (federal declaratory judgments); TEX. CIV. PRAC. & REM. CODE § 37.003 (state declaratory judgments). Individual city council members who voted on a zoning ordinance ultimately found to violate Local Government Code section 229.001 or the Texas or the U.S. Constitution would likely be immune from personal liability.6 See Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982) (discussing federal qualified immunity); Kassen v. Hatley, 887 S.W.2d 4, 8-12 (Tex. 1994) (discussing state official immunity).

                                    SUMMARY

                   Subsection 229.001(a)(1) of the Local Government Code prohibits a municipality from regulating the transfer, private ownership, keeping, transportation, licensing, or registration of firearms, air guns, knives, ammunition, or firearm or air gun supplies. Subsection 229.001(b)(3) excepts from this prohibition a municipality's regulation on the use of property or businesses and the location of businesses as long as the regulation does not circumvent the intent of subsection (a)(1). A regulation that expressly prohibits gun stores from operating in a specific area relates to the transfer of firearms and is prohibited by subsection 229.001(a)(1). Similarly, an ordinance singling out firearm and ammunition sales relates to the transfer of firearms and is therefore prohibited.

                   A court would likely conclude subsection 229.001(a)(1)'s prohibition encompasses any one or more of the listed items. To the extent a municipality regulates firearm transfers but not also licensing, registration, or transportation of firearms, it acts contrary to subsection 229.001(a)(1).

                   A violation of section 229.001 may be enforced by the Attorney General. Any plaintiff with standing under the Texas Constitution or the U.S. Constitution could bring an action seeking declaratory or injunctive relief against enforcement of an unconstitutional ordinance. Individual city council members who voted on a zoning provision that is ultimately found to violate section 229.001 or the Texas or the U.S. Constitution would likely be immune from personal liability.

                                           Very truly yours,

                                           KEN PAXTON
                                           Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee

1See Letter from Honorable Donna Campbell, M.D., Chair, Senate Comm. on Veterans Affairs & Border Sec., to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Feb. 4, 2019), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").
2You cite to the recording of a meeting on September 26, 2018, of the City of San Antonio's Public Safety Committee. See id. at 2, nn.1-5 (citing https://sanantonio.legistar.com/MeetingDetail.aspx?ID=639220&GUID=CA409134-DA36-45E0-ABE3-287F5528E91E&Options=info&Search=public+safety). The City of San Antonio informs us in briefing that it has not adopted any ordinance of the kind you describe. See Brief from Edward F. Guzman, Deputy City Att'y at 2 (Mar. 8, 2019) (on file with the Op. Comm.).
3A home-rule municipality's self-governing power is limited to the extent that it is "inconsistent with the Constitution ... or ... general laws" of the State. TEX. CONST. art. XI, § 5(a) ("[N]o charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws ... of this State."). A general law city may not adopt an ordinance, act, or law that is inconsistent with state law. See TEX. LOC. GOV'T CODE § 51.012.
4Local Government Code chapter 211 authorizes a city to regulate, among other things, "the location and use of buildings, other structures, and land for business, industrial, residential, or other purposes." Id. § 211.003(a)(5); see also id. § 211.001 (stating that zoning powers "are for the purpose of promoting the public health, safety, morals, or general welfare and protecting and preserving places and areas of historical, cultural, or architectural importance and significance").
5House Bill 3231, currently pending before the Legislature, revises section 229.001 with language that is consistent with this conclusion. See Tex. H.B. 3231, 86th Leg., R.S. (2019).
6In considering the issue of qualified immunity, one justice observed: To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior-no matter how palpably unreasonable-as long as they were the first to behave badly. Merely proving a constitutional deprivation doesn't cut it; plaintiff must cite functionally identical precedent that places the legal question "beyond debate" to "every" reasonable officer. Put differently, it's immaterial that someone acts unconstitutionally if no prior case held such misconduct unlawful. Zadeh v. Robinson, 902 F.3d 483, 498 (5th Cir. 2018) (Willett, J., concurring).