Can a Texas school board let school marshals openly carry a handgun on a duty belt instead of concealed?

Plain-English summary

The chair of a Texas Senate committee asked whether a school district board of trustees may adopt regulations letting school marshals carry their handgun openly on a duty belt, the type of belt holster uniformed law enforcement officers wear, rather than concealed. The AG concluded a board can do that, and walked through the several ways Texas law lets a school put an armed person on campus before getting to the specific statute.

A school board has broad authority to govern its schools (Education Code section 11.151(b)). Penal Code section 46.03 generally bars firearms on school premises, but it has an exception (subsection 46.03(a)(1)) for people carrying under the school's own written regulations or authorization. Reading those together, as a prior AG opinion (GA-1051) explained, a board can adopt a "guardian plan" that designates employees to carry firearms on campus. Because section 46.03 says nothing about how a handgun must be carried, the AG reasoned it cannot be read to forbid a policy allowing duty-belt carry.

The Education Code adds more. Sections 37.081 and 37.0814 let a district use commissioned peace officers, school district peace officers, or school resource officers as security, and require at least one armed security officer on each campus, with a good-cause exception that can be filled by a school marshal or a trained employee or contractor. Nothing in those provisions stops the officers from duty-belt carrying as they normally do.

Then the AG reached the specific statute, section 37.0811, which lets a board appoint one or more school marshals per campus. Subsection (c) says a marshal "may carry a concealed handgun or possess a handgun" on school premises, but only in the manner set by the board's written regulations and at a specified school. The key move is comparing subsection (c) with subsection (d). Subsection (d) requires the board's regulations to let a marshal possess the handgun in a locked and secured safe or location, setting a floor below which the rules cannot drop. Subsection (c) sets a ceiling and pointedly does not include the "locked and secured" limit, even though the very next subsection shows the Legislature knew how to write that limit when it wanted to. Because courts presume the Legislature chose its words with care, that omission gives each board discretion over how marshals may possess a handgun. Since "possess" does not exclude duty-belt carry, the AG concluded a court would likely hold a board may adopt regulations authorizing a marshal to duty-belt carry.

What this means for you

If you serve on a school board or set district safety policy

Based on this opinion, your board may adopt written regulations that let a school marshal openly carry a handgun on a duty belt. The authority runs through section 37.0811(c)'s "possess a handgun" language, and the AG reads that as broad enough to cover duty-belt carry. The regulations still have to satisfy the floor in subsection (d), including allowing locked-and-secured possession and requiring frangible duty ammunition approved by the Texas Commission on Law Enforcement.

If you are a school administrator weighing armed-staff options

The opinion lays out more than one path: a guardian plan under Penal Code section 46.03(a)(1) read with the board's broad authority, the school-security-officer route under sections 37.081 and 37.0814, and the school-marshal route under section 37.0811. Duty-belt carry is available under each because none of these provisions forbids it.

If you advise districts on firearms policy

The analysis turns on the contrast between subsections (c) and (d) of section 37.0811. Subsection (c) is the ceiling and omits the "locked and secured" limit that subsection (d) imposes as a floor, so a board has discretion on carry method. Note the AG's point that the word "concealed" still modifies one option in subsection (c) and was not removed when the Legislature dropped the concealed-carry requirement from handgun licensing in 2015; the duty-belt authority rests on "possess a handgun," not on the concealed-carry phrase.

Common questions

Q: Can a school marshal carry openly on a duty belt, or does it have to be concealed?
A: A board may adopt regulations allowing duty-belt (open) carry. The AG read section 37.0811(c)'s authority to "possess a handgun" as broad enough to include openly carrying it on a duty belt.

Q: Does state law require the gun to be locked in a safe?
A: Subsection 37.0811(d) sets a floor requiring the board's rules to allow locked-and-secured possession, but it does not cap a marshal's authority there. Subsection (c) lets the board allow more, including carry on the person.

Q: What other options does a board have to arm someone on campus?
A: A guardian plan that designates employees to carry under Penal Code section 46.03(a)(1), or using school security officers (peace officers, school district peace officers, or school resource officers) under sections 37.081 and 37.0814.

Q: Is there special ammunition required for school marshals?
A: Yes. Subsection 37.0811(d) requires that a handgun carried or possessed by a school marshal be loaded only with frangible duty ammunition approved for that purpose by the Texas Commission on Law Enforcement.

Background and statutory framework

A board of trustees has the exclusive power and duty to govern its district's public schools (Tex. Educ. Code § 11.151(b)), authority the Texas Supreme Court called "broad" in Davis v. Morath, 624 S.W.3d 215 (Tex. 2021), and it carries out other powers provided by law (§ 11.1511(b)(15)). Penal Code section 46.03 generally prohibits firearms on school premises, but subsection 46.03(a)(1)(A) excepts a person acting under the school's written regulations or authorization, which a prior opinion (GA-1051) read to allow a guardian plan. Because section 46.03 is silent on carry method, the AG applied the interpretive principle from Tarr v. Timberwood Park Owners Ass'n, Inc., 556 S.W.3d 274 (Tex. 2018), that "a matter not covered is to be treated as not covered."

Sections 37.081 and 37.0814 authorize security personnel and require at least one armed security officer per campus, with a good-cause exception fillable by a school marshal or a trained employee or contractor. Section 37.0811 lets a board appoint school marshals; subsection (c) authorizes a marshal to carry a concealed handgun or possess a handgun on campus only as the board's written regulations provide, and subsection (d) requires those regulations to permit locked-and-secured possession and frangible duty ammunition. Treating subsection (d) as a floor and subsection (c) as a ceiling, and invoking the presumption from In re Commitment of Bluitt, 605 S.W.3d 199 (Tex. 2020), that the Legislature purposefully omits words it does not choose, the AG concluded the omission of a "locked and secured" limit from subsection (c) leaves boards discretion over carry method. Because "possess" includes carrying (citing Muscarello v. United States, 524 U.S. 125 (1998)), the AG concluded a board may authorize duty-belt carry.

Citations and references

Statutes:

• Tex. Educ. Code § 37.0811 — appointment and authority of school marshals; written regulations
• Tex. Educ. Code § 37.0814 — armed security officer required at each campus; good-cause exception
• Tex. Penal Code § 46.03 — firearms prohibited on school premises, with written-authorization exception

Key cases:

• Davis v. Morath, 624 S.W.3d 215 (Tex. 2021) — broad authority of school boards under section 11.151(b)
• In re Commitment of Bluitt, 605 S.W.3d 199 (Tex. 2020) — Legislature purposefully omits words it does not choose
• Muscarello v. United States, 524 U.S. 125 (1998) — "carry" in the firearms context implies personal agency and some degree of possession

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0454
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2024/kp-0454.pdf

Original opinion text

PAXTON
ATTORNEY GENERAL OF TEXAS

January 23, 2024

The Honorable Brian Birdwell
Chair, Senate Committee on Natural Resources & Economic Development
Texas State Senate
Post Office Box 12068
Austin, Texas 78711-2068

Opinion No. KP-0454

Re: Whether a school district board of trustees has the authority under Education Code section 37.0811(c)(1)–(2) to adopt local procedures to allow uniformed school marshals to duty belt carry their firearm (RQ-0007-AC)

Dear Senator Birdwell:

You ask whether a school district board of trustees may adopt regulations allowing for "duty belt carry" of a handgun.¹ We understand the phrase "duty belt carry" to mean openly carrying a handgun in a holster attached to a belt of the type commonly worn by uniformed law enforcement officers. See, e.g., City of Austin v. Howard, No. 03-22-00439-CV, 2023 WL 1869645, at *1–2 (Tex. App.—Austin Feb. 10, 2023, no pet.) (mem. op.) (discussing a "duty belt" and related safety components). While you specifically reference Texas Education Code subsection 37.0811(c) and inquire about school marshals, we understand your question to encompass a school board's broader authority to designate individuals, including school marshals, to duty belt carry a handgun for the protection of students and staff. Accordingly, we begin by reviewing this wider range of authority before moving on to address the specific provision you reference.

Our office has previously opined on what is commonly known as a "guardian plan." See generally Tex. Att'y Gen. Op. No. GA-1051 (2014). The authority to implement such plans is derived from multiple sources. A school district board of trustees possesses "the exclusive power and duty to govern and oversee the management of the public schools of the district." TEX. EDUC. CODE § 11.151(b); see also Davis v. Morath, 624 S.W.3d 215, 224 (Tex. 2021) (acknowledging the "broad authority" school boards enjoy under this provision). That authority is supplemented by Education Code section 11.1511, which requires a school board to "carry out other powers and duties as provided by this code or other law." TEX. EDUC. CODE § 11.1511(b)(15). One such source of "other law"—Penal Code section 46.03—generally prohibits a person from carrying a firearm on school premises. TEX. PENAL CODE § 46.03. However, as our office explained in GA-1051, 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. Att'y Gen. Op. No. GA-1051 (2014) at 3–4; see also TEX. PENAL CODE § 46.03(a)(1)(A) (providing that a person does not commit a criminal offense under that provision if he "possesses or goes with a firearm . . . on the premises of a school [or] on any grounds or building owned by and under the control of a school . . . pursuant to written regulations or written authorization of the school or institution"). These provisions, when read together, authorize a school board to implement a guardian plan that designates one or more individual employees to carry firearms on school premises. See Tex. Att'y Gen. Op. No. GA-1051 (2014) at 3 ("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)."). Given its silence on what methods a school district may prescribe for the lawful carrying of a handgun, Penal Code section 46.03 cannot be construed to prohibit adoption of a policy that allows a school marshal to duty-belt carry a firearm. See Tarr v. Timberwood Park Owners Ass'n, Inc., 556 S.W.3d 274, 291 (Tex. 2018) ("Nothing is to be added to what the text states or reasonably implies . . . . That is, a matter not covered is to be treated as not covered." (quoting ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 93 (2012))).

Education Code sections 37.081 and 37.0814 provide another relevant legal framework. Section 37.081 authorizes a school district board of trustees to utilize security personnel that are employed as commissioned peace officers, school district peace officers, or school resource officers. TEX. EDUC. CODE § 37.081. Subsection 37.0814(a) states that a school board "must ensure that at least one armed security officer is present during regular school hours at each district campus." Id. § 37.0814(a). In meeting this requirement, the armed security officer must be a school district peace officer, school resource officer, or commissioned peace officer employed as security personnel under section 37.081 unless the school board claims a good cause exception. Id. § 37.0814(b)–(c). Where such an exception is claimed, the school board "must develop an alternative standard with which the district is able to comply, which may include providing a person to act as a security officer" that does not fall within these three categories. Id. § 37.0814(d). This individual can be "a school marshal" or, alternatively, "a school district employee or a person with whom the district contracts" that "has completed school safety training provided by a qualified handgun instructor" and "carries a handgun on school premises in accordance with written regulations or written authorization of the district under Section 46.03(a)(1)(A), Penal Code." Id. Again, nothing in these provisions prohibits the law enforcement personnel that fill such roles from engaging in their common practice of duty-belt carrying a firearm while providing school security.

With these other broad authorities in mind, we now turn to the specific provision about which you inquire. Section 37.0811 generally allows the board of trustees of a school district to "appoint one or more school marshals for each campus." Id. § 37.0811(a). Subsection 37.0811(c) sets forth a school marshal's authority as follows:

(c) A school marshal appointed by the board of trustees of a school district or the governing body of an open-enrollment charter school may carry a concealed handgun or possess a handgun on the physical premises of a school, but only:

(1) in the manner provided by written regulations adopted by the board of trustees or the governing body; and

(2) at a specific school as specified by the board of trustees or governing body, as applicable.

Id. § 37.0811(c). As with the other frameworks discussed above, nothing in subsection 37.0811(c) prohibits a school marshal from duty-belt carrying a handgun.² Neither does subsection 37.0811(d) prevent a school board from implementing a written policy that authorizes duty-belt carry on school premises. That provision addresses the content of the written regulations required by subsection 37.0811(c)(1):

(d) Any written regulations adopted for purposes of Subsection (c) must provide that a school marshal may carry a concealed handgun on the school marshal's person or possess the handgun on the physical premises of a school in a locked and secured safe or other locked and secured location. The written regulations must also require that a handgun carried or possessed by a school marshal may be loaded only with frangible duty ammunition approved for that purpose by the Texas Commission on Law Enforcement.

Id. § 37.0811(d). Subsection 37.0811(d) sets a floor for a school marshal's authorities regarding possessing a firearm, below which a school district board of trustees' written regulations may not fall. Specifically, the provision requires a school board to allow a school marshal to "possess the handgun on the physical premises of a school in a locked and secured safe or other locked and secured location." Id. By contrast, subsection 37.0811(c) establishes a ceiling for these authorities by authorizing a marshal to "possess a handgun on the physical premises of a school, but only . . . in the manner provided by written regulations adopted by the board of trustees . . . ." Id. § 37.0811(c)(1). Noticeably absent from subsection 37.0811(c) is any language limiting possession to "a locked and secured safe or other locked and secured location," despite the Legislature's clear demonstration in the very next subsection—subsection 37.0811(d)—that it knows how to include such limiting language. Id. § 37.0811(d). This omission is significant, as courts "presume the Legislature chose the statute's language with care, purposefully choosing each word, while purposefully omitting words not chosen." In re Commitment of Bluitt, 605 S.W.3d 199, 203 (Tex. 2020). By limiting the scope of "possess" in subsection 37.0811(d) but not including the same restrictions in subsection 37.0811(c), the Legislature has provided each school board with some discretion to determine the extent of handgun possession by school marshals that best meets that district's individual needs.

School district boards of trustees possess multiple avenues for allowing a designated individual to carry a handgun for the protection of students and staff, including implementing a guardian plan or utilizing a school security officer. Appointing a school marshal pursuant to Education Code section 37.0811 is another option for accomplishing this important policy goal. Because the authority to "possess" a handgun under subsection 37.0811(c) does not exclude the authority to duty-belt carry a handgun, a court would likely conclude that a school district board of trustees can adopt regulations authorizing a school marshal to "duty belt carry."

¹ See Letter from Honorable Brian Birdwell, Chair, Senate Comm. on Nat. Res. & Econ. Dev., to Acting Att'y Gen. Angela Colmenero at 1 (Sept. 11, 2023) ("Request Letter").

² On its face, the phrase "carry a concealed handgun" does not include duty belt carry because a handgun on the duty belt is not concealed. While the Legislature eliminated the "concealed" requirement related to licensure to carry a handgun in 2015, that legislation did not alter the "concealed" language with regard to school marshal authority or school board regulations in Education Code section 37.0811. See Act of May 29, 2015, 84th Leg., R.S., ch. 437, 2015 Tex. Gen. Laws 1706, 1706–22 (amending various statutory provisions related to subchapter H of chapter 411 of the Government Code). However, the phrase "possess a handgun" as used in subsection 37.0811(c) does not exclude duty-belt carry. See BLACK'S LAW DICTIONARY 257 (10th ed. 2014) (defining "carry" to mean "[t]o possess and convey (a firearm) in a vehicle, including the locked glove compartment or trunk of a car" (citing Muscarello v. United States, 524 U.S. 125 (1998))); see also Muscarello, 524 U.S. at 134 (observing the term "[c]arry" in the context of firearms "implies personal agency and some degree of possession").

SUMMARY

A school district board of trustees may designate an individual to carry a handgun for the protection of students and staff by implementing a guardian plan or utilizing a school security officer. Education Code section 37.0811 provides another option for accomplishing this purpose by generally allowing a school board to appoint one or more school marshals for each campus in the district. Subsection 37.0811(c) authorizes a school marshal to possess a handgun on the physical premises of a school, but only in the manner provided by written regulations adopted by the board of trustees. A school marshal possesses a handgun when it is openly carried on the marshal's duty belt. Therefore, a court would likely conclude that Education Code subsection 37.0811(c) authorizes a board of trustees to adopt regulations that allow a school marshal to duty belt carry a handgun.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

D. FORREST BRUMBAUGH
Deputy Attorney General for Legal Counsel

AUSTIN KINGHORN
Chair, Opinion Committee

J. AARON BARNES
Assistant Attorney General, Opinion Committee