Recent Texas Attorney General Opinions of Interest to Cities

Note:  Included opinions are from December 11, 2015 through January 10, 2016. 

Opinion No. KP-0056 (Cost Reimbursement):  Article III, Section 52(a) of the Texas Constitution would likely prohibit a municipality from paying a private party’s costs incurred in a successful appeal to a zoning board to the extent that such payment constitutes a gratuitous payment of public funds.

Opinion No. KP-0054 (Incompatibility):  A court would likely conclude that, under the facts described by the requestor, the common-law doctrine of incompatibility does not prohibit an individual’s simultaneous service as the Red River County Sheriff and as a board trustee of the Clarksville Independent School District.

Opinion No. KP-0051 (Campus Carry):  A court would likely conclude that a public institution of higher education exceeds the authority granted under Senate Bill 11 if it prohibits the carrying of concealed handguns in a substantial number of classrooms or delegates to individual professors the decision as to whether possession of a concealed handgun is allowed in the individual professor’s classroom.

If a public institution of higher education placed a prohibition on handguns in the institution’s campus residential facilities, it would effectively prohibit license holders in those facilities from carrying concealed handguns on campus, in violation of the express terms of Senate Bill 11.

A court could conclude that occasional, reasonable, temporary restrictions that are prominently posted on the institution’s website clearly notify license holders and do not amount to a general prohibition on the carrying of concealed handguns on campus.

An individual whose legal rights have been infringed due to a president or chief executive officer of a public institution adopting regulations that exceed the authority granted in Senate Bill 11 would likely have standing to bring an ultra vires cause of action against the president or chief executive officer.

If a court concludes that the rules established by an institution of higher education with regard to where concealed handguns may be carried are not authorized by statute, it would follow that any further enforcement of such provisions would be ultra vires.

Opinion No. KP-0050 (Firearms and School Activities):  Subsection 46.03(a)(l) of the Penal Code prohibits handguns from places on which a school-sponsored activity is occurring, which places can include grounds otherwise excluded from the definition of “premises” such as public or private driveways, streets, sidewalks or walkways, parking lots, parking garages, or other parking areas.

Opinion No. KP-0049 (Firearms and Courts):  Pursuant to Opinion KP-0047, it is only the courtrooms, and those offices determined to be essential to their operations, from which Hays County may prohibit concealed handguns without risk of incurring a civil penalty under Section 411.209 of the Government Code.

A court would likely conclude that Section 411.209 of the Government Code can be implicated by a governmental entity that seeks to improperly prohibit handguns from a place where handguns may be lawfully carried through oral notice or by a written notice that does not conform to Section 30.06 of the Penal Code.

By the terms of Section 30.06 of the Penal Code, a license holder carrying a concealed handgun who refuses, after notice by the governmental entity, to exit premises from which Penal Code Sections 46.03 or 46.035 prohibit handguns commits an offense punishable as a misdemeanor. Conversely, a licensee who refuses to relinquish any concealed handgun or refuses to exit the building after being given notice by a governmental entity does not commit an offense if the building is not one from which Sections 46.03 and 46.035 prohibit concealed handguns.

Opinion No. KP-0047 (Firearms and Courts):  For purposes of Section 411.209 of the Government Code, the phrase “premises of any government court” used in Penal Code Subsection 46.03(a)(3) generally means either: (1) a structure utilized by a court created by the Texas Constitution or the Legislature, or (2) a portion of such a structure. The premises of a “government court or office utilized by the court” means a government courtroom or those offices essential to the operation of the government court. The responsible authority that would notify license holders of their inability to carry on the respective premises must make the determination of which government courtrooms and offices are essential to the operation of the government court, in consultation with the government court.

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