Handguns in the Texas Workplace – A Shorty for the Employer

By Bruce Dean, General Counsel of Stevens Transport

(Jan. 8) – On Jan. 1, the Texas Open Carry law went into effect. The law allows a concealed handgun license (CHL) holder to openly carry a holstered handgun in a shoulder or belt strap in most public or private places[1] without violating Texas’ general prohibition against carrying handguns.[2] Employers need to know their rights in light of this game-changing law. The employer[3] is the target audience for this article. The article is divided into sections concerning (1) notice and regulated notice[4] to employees, (2) regulated notice to visitors, (3) prohibited places/activities for carrying handguns and (4) the role of alcohol for the CHL holder.

If the employer wants to criminalize (i.e., have the police make an arrest) the possession of a handgun (concealed or open carry) on the employer’s property, then the employer must follow the steps below. If the employer does not want to criminalize the possession of a handgun on the owner’s property, simply post a tasteful sign near the entrance(s) of the facility like “NO GUNS” or “GUNS PROHIBITED.” In contrast to the CHL holder, if a non-CHL holder brings a handgun into the employer’s building, that action is an automatic violation of Texas law.[5]

I. GUNS OR NO GUNS?

The first decision for the employer is whether the no carry or no open carry prohibition will be directed to employees or to both employees and visitors.

A. Concealed Handguns (§ 30.06).

Decide if your workplace will or will not allow CHL holders to carry concealed handguns.
If the employer does nothing and regulated signs are not posted, employees and visitors who are CHL holders are allowed in the employer’s building to carry a concealed handgun in a shoulder or belt holster.[6]
Upside – regulated signs are not necessary.
Downside – The police will not make an arrest of a CHL holder on the employer’s property with a handgun without a regulated sign posted.

Open Carry of Handguns (§ 30.07).

Decide if your workplace will or will not allow open carry of handguns.
If the employer does nothing and regulated signs are not posted, employees and visitors who are CHL holders are allowed to openly carry a handgun in the employer’s building in a shoulder or in a belt holster.[7]
Upside – regulated signs are not necessary.
Downside – The police will not make an arrest of a CHL holder on the employer’s property with a handgun without a regulated sign posted.

II. EMPLOYEES

Concealed Handguns (§ 30.06).

To criminalize the possession of a concealed handgun in the employer’s building, the employer must give employees oral or written notice that (1) entry on the employer’s property by a CHL holder with a concealed handgun was forbidden; or (2) remaining on the property with a concealed handgun was forbidden and failed to depart.[8]
If the notice is written, it must be on a card or other document that has the following identical language:[9]

“Pursuant to Section 30.06, Penal Code (trespass by license holder with a concealed handgun), a person licensed under Subchapter H, Chapter 411, Government Code (handgun licensing law), may not enter this property with a concealed handgun.”[10]

There are no requirements as to font size or where the regulated notice must be provided, so be practical:
- Publish the regulated notice in the employer’s employee handbook.
- Until the employee handbook is updated, place the regulated notice in the case that contains your EEO/minimum wage notices;
- Hand out a card or other announcement with the regulated language;
- Send a blast email to all employees with the regulated language and save the email if you later need it to show police.
If the employer does not want to criminalize concealed carry, any notice will do. It is your building. Do what you want to do.[11] It’s your property to the exclusion of others. But remember, if oral or written notice[12] is not given, when police are called to arrest the offender, no arrest will be made.[13]

B. Open Carry of Handguns (§ 30.07).

To disallow open carry of handguns in the workplace, employers must give employees a card or other document which has the following identical language:

“Pursuant to Section 30.07, Penal Code (trespass by license holder with an openly carried handgun), a person licensed under Subchapter H, Chapter 411, Government Code (handgun licensing law), may not enter this property with a handgun that is carried openly.”[14]

There are no requirements as to font size or where the regulated notice must be provided, so be practical:

Put the regulated notice in the employer’s employee handbook.
Until the handbook is changed, place the regulated notice in the case that contains your EEO notices/minimum wage notices.
Hand out a card or other announcement with the regulated language;
Send a blast email to all employees with the regulated language and save the email if you later need it to show police.

C. A Caveat.

A CHL holder can legally have a handgun in the CHL holder’s locked car parked on the employer’s employee lot or garage.[15] The employer cannot prohibit a CHL holder from having a handgun or ammunition on the employer’s property in the parking area designated for employees.[16]

III. VISITORS.

Whether to criminalize an offense or not, if the employer wants to exclude CHL holders with handguns who visit their building, regulated notice must be given.

A. Concealed Handguns (§ 30.06).

To prohibit visitors with a CHL to conceal carry a handgun in the employer’s building, the only way to do so is to post a regulated sign at the property entrance(s) (the outer entrance(s) to the property or at each entrance to the building) that:
Uses the following identical language in both English and Spanish:

Appears in contrasting colors with block letters[17] at least one inch in height; and
Is displayed in a conspicuous manner clearly visible to the public at each entrance to the property.[18]
The one-inch letter size requirement makes this a humongous sign that minimally requires a 4’ x 2’ area (sign or window) to comply with all of the statutory requirements.
“Contrasting colors” is a bit opaque but is interpreted as one color for the English letters and a different color for the Spanish letters (e.g., black and red or black and white). It certainly does not mean contrasting colors for every other letter.
“At each entrance to the property” can mean posting either at the driveway entrance to the property or at each door entrance to the building.

B. Open Carry of Handguns (§ 30.07).

To exclude visitors with a CHL to openly carry a handgun in the employer’s building, the employer must post a regulated sign at the property entrance(s) (the outer entrance(s) to the property or at each entrance to the building) that:
Uses the following exact language in both English and Spanish:

Appears in contrasting colors with block letters[19] at least one inch in height; and
Is displayed in a conspicuous manner clearly visible to the public at each entrance to the property.”
The one-inch letter size requirement duplicates the § 30.06 notice requirement making this a humongous sign that minimally requires a 4’ x 2’ area (sign or window) to comply with all of the statutory requirements.
“Contrasting colors” is interpreted to mean as one color for the English wording and a different color for the Spanish wording (e.g., black and red or black and white). It certainly does not mean contrasting colors for every other letter.
“At each entrance to the property” can mean posting either at the driveway entrance to the property or at each door entrance to the building

C. Penalties. For both 30.06 and 30.07, if regulated notice is posted and a CHL holder comes into the employer’s building with a handgun, call the police to have the individual removed. The CHL holder has committed a Class “C” misdemeanor punishable by a fine up to $200.[20] If the CHL holder is orally told to leave and refuses, the offense escalates to a Class “A” misdemeanor punishable by a fine up to $4,000 and/or jail up to 1 year.[21]

IV. A PRACTICAL COMPROMISE.

Due to the enormous size of the two regulated signs, a practical compromise is suggested. Combine the two notice provisions into one sign in English and Spanish in alternating colors of block black letters on a white background and block red letters on a white background. There are only 12 words and 1 number that differ between the two regulated notice provisions.[22] The compromise language follows with changes highlighted in red:

“Pursuant to Sections 30.06 and 30.07, Penal Code (trespass by license holder with an concealed or openly carried handgun), a person licensed under Subchapter H, Chapter 411, Government Code (handgun licensing law), may not enter this property with a concealed handgun or a handgun that is carried openly.”[23]

If the employer wants the police to make an arrest of a noncompliant CHL holder, law enforcement officers interviewed have indicated an arrest would be made based on the presence of the numbered penal code section(s) and the required language therein.[24]

V. NO GUNS PERIOD – EVEN WITH A CHL.

The Legislature has identified several places where a CHL holder is prohibited from bringing a handgun.[25]

A bar.[26]
A church, synagogue or other place of religious worship.[27]
A hospital or nursing home.[28]
A public or private school, education institution, the grounds or building on which a school/educational institution sponsored activity occurs, a school bus or other school transportation.[29]
A courtroom or court offices unless authorized by the court.[30]
Where a meeting of a governmental entity is held and the meeting is held under the Open Meetings Act.[31]
A correctional facility.[32]
A polling place on the day of an election or while early voting is in progress.[33]
In an amusement park.[34]
A racetrack.[35]
In the secure area of an airport.[36]

If you are an employer of one of these businesses, regulated signs are not necessary to warn visitors they cannot carry (concealed or open) or to criminalize that conduct. The Legislature has already done so.

VI. GUNS AND ALCOHOL.

We all know that if “you drink, you drive, you go to jail.”[37] Under the penal code, you drink, you carry, the intoxicated CHL holder goes to jail.[38]

CONCLUSION

The requirements of 1” block letters on regulated signs in two languages in alternating colors makes it clear the Texas Legislature wanted no surprises to CHL holders. Some critics of the sign law say posting the regulated language invites criminals to target the business for illicit activity. There is nothing in these statutes that prohibits the employer from having his/her own handgun or designating specific employees to have a handgun. These two statutes only criminalize concealed or open carry for unwanted persons – employees or visitors. Criminosos Cave![39] The regulated notice permits the arrest of a CHL holder for carrying a handgun when they have been given notice not do to so. If the employer does not want to call the police for employees the employer wants to have a handgun available, for example in a desk, so be it. The likelihood of a CHL holder (which is a privilege to possess) violating a request not to carry – – thereby risking a fine, jail, a criminal record and potentially having their CHL revoked at the next CHL renewal – – is low.

[1] Tex. Pen. Code Ann §§ 36.06 (concealed carry law) and 36.07 (open carry law).

[2] Tex. Pen. Code Ann. § 42.02 (general prohibition of carrying handguns).

[3] The two handgun statutes allow the property owner or someone with the property owner’s apparent authority to post notice that handguns are not allowed. Tex. Pen. Code Ann. §§ 30.06(b), 30.07(b). The handgun statues do not equate the employer with the property owner. If the employer is the property owner, then the employer has all the rights to post the regulated notices as discussed herein. The same cannot be said if the employer is only a lessee because the lessee may not have the property owner’s apparent authority. The lessee may not know who owns the property or may not even have a relationship with the property owner. From the CHL holder’s perspective, this situation may be a distinction without a difference. It seems remote that a CHL holder would challenge whether the lessee has the property owner’s consent to post the regulated notices. If the lessee is asked if they “own the property,” say yes or say they “have the owner’s consent.” Let the CHL holder do further investigative work. Technically, it is only the principal’s actions/words (not the agent’s) which could lead to a finding that the agent has the principal’s apparent authority to post the regulated notices. Southwest Land Title Co. v. Gemini Fin. Co., 752 S.W.2d 5, 6 (Tex. App.—Dallas 1988, no writ), modified on other grounds, 679 S.W.2d 1 (Tex. 1984))(“Only the acts of the principal may be considered; the agent’s representations as to his authority are ineffective to bind the principal.”). What is the lessee to do? Get the property owner’s (not the landlord or the lessor – unless the landlord is the property owner) (1) express consent that the lessee has the authority to post the regulated signs; or (2) ratification (after the fact approval) of the lessee’s posting of the regulated notices. See In the Matter of the Marriage of M.C. and R.S., 65 S.W.3d 188, (ratification is the adoption or confirmation by a person, with knowledge of all material facts, of a prior act which did not then legally bind that person and which that person had the right to repudiate)(citing Kunkel v. Kunkel, 515 S.W.2d 941, 948 (Tex. Civ. App.—Amarillo 1974, writ ref’d n.r.e.).

[4] As used herein, a “regulated” sign or “regulated” notice is compliant with the requirements of Tex. Pen. Code Ann. § 30.06(c)(3)(A)(concealed carry employees) and/or § 30.06(c)(3)(B)(concealed carry visitors) and § 30.07(c)(3)(A)(open carry employees) and/or § 30.07(c)(3)(B)(open carry visitors).

[5] Tex. Pen. Code Ann. § 46.02 (general prohibition of carrying handguns). Conversely, there is no criminal prohibition of carrying a long gun in public in Texas, except where it is “display[ed] . . . in a public place in a manner calculated to alarm.” Id. § 42.01(a)(8)(disorderly conduct which is a Class B misdemeanor). Additionally, long guns (included in the definition of a “firearm” in Tex. Pen. Code Ann. § 46.01(3)) are prohibited :

on the physical premises of a school or educational institution, any grounds or building on which n activity sponsored by a school or educational institution is being conducted, or a passenger transportation vehicle of a school or educational institution, whether the school or educational institution is public or private, unless pursuant to written regulations or written authorization of the institution (Tex. Pen. Code Ann. § 46.03(a)(1));
on the premises of a polling place on the day of an election or while early voting is in progress ( § 46.03(a)(2));
on the premises of any government court or offices utilized by the court, unless pursuant to written regulations or written authorization of the court ( § 46.03(a)(3)).
on the premises of a racetrack ( § 46.03(a)(4));
in or into a secured area of an airport ( § 46.03(a)(5)); or
within 1,000 feet of the location where the State of Texas will execute a prisoner on the day of the execution and the person receives notice that (a) going within 1,000 feet of the premises with a firearm, illegal knife, club, or prohibited weapon listed in Section 46.05(a) of the Penal Code was prohibited; or (b) possessing a weapon listed in § 46.03 (same as in (vi)(a)) within 1,000 feet of the premises was prohibited ( § 46.03(a)(6)).

[6] Tex. Pen. Code Ann. § 46.035(a)(holstered or belted handgun only).

[7] Id.

[8] Tex. Pen. Code Ann. § 30.06(a)(2).

[9] The “old” notice under § 30.06 that is effective until January 1, 2016 is different from the regulated notice language cited in this article that is effective on January 1, 2016. If the employer has the old § 30.06 language, to criminalize the offensive conduct, new signage is required that meets the requirements of § 30.06(c)(3)(A) herein.

[10] Tex. Pen. Code Ann. § 30.06(c)(3)(A).

[11] Texas Attorney General Opinion No. DM-363 (Morales 1995) backs this up. When the concealed carry law was enacted in 1995, Senator Rodney Ellis asked the Attorney General to spell out an employer’s right to exclude CHL holders with handguns. Before looking at the legislative history of SB 60 the Attorney General Dan Morales made an analysis of the existing rights of property owners to exclude others under common law. The opinion stated “As a general matter, “[t]he power to exclude has traditionally been considered one of the most treasured strands in an owner’s bundle of property rights. . . . At common law, proprietors of private enterprises such as places of amusement and entertainment can admit or exclude whomsoever they please, and their common-law right continues until changed by legislative enactment.” But see note 3 for lessees.

[12] Tex. Pen. Code Ann. § 30.06(b) (“notice” means “the owner of the property or someone with apparent authority to act for the owner provides notice to the person by oral or written communication.”)

[13] Tex. Pen. Code Ann. § 30.06(a). A CHL holder commits an offense if the license holder (1) carries a concealed handgun under the authority of subchapter H, Chapter 411, Government Code, on property of another without effective consent; and (2) received notice that entry on the property by a license holder with a concealed handgun was forbidden.

[14] Tex. Pen. Code Ann. § 36.07(c)(3)(A).

[15] Tex. Lab. Code Ann. § 52.061 (”A public or private employer may not prohibit an employee who holds a license to carry a concealed handgun under Subchapter H, Chapter 411, Government Code, who otherwise lawfully possesses a firearm, or who lawfully possesses ammunition from transporting or storing a firearm or ammunition the employee is authorized by law to possess in a locked, privately owned motor vehicle in a parking lot, parking garage, or other parking area the employer provides for employees”). N.B.: Section 53.061 does not apply to (i.e., an employer still may prohibit a license holder from carrying a handgun or ammunition in a locked car in the employee parking lot):

Where possession of a firearm or ammunition is prohibited by federal or state law (§ 52.062(a)(1));
An employer owned vehicle that is used by the employee in the course and scope of his employment unless the employee is required to transport or store a firearm in the official discharge of the employee’s duties (e.g., a police officer or security guard) (§ 52.062(a)(2)(A));
A school district (§ 52.062(a)(2)(B));
An open-enrollment charter school as defined by Education Code § 5.001 (§ 52.062(a)(2)(C));
A private school as defined by Education Code § 22.081 (§ 52.062(a)(2)(D));
Non-employer owned property on which there is an unexpired oil, gas or mineral lease and the lease itself contains a clause that prohibits possession of firearms on the property (§ 52.062(a)(2)(E)); and
Property on which oil, gas, chemicals or explosives are manufactured, used, stored or transported (§ 52.062(a)(2)(F)).

[16] Tex. Lab. Code Ann. § 52.061.

[17] “Block letters” is an actual font in which the regulated notice must be given.

[18] Tex. Pen. Code Ann. § 30.06(c)(3)(B)

[19] “Block letters” is an actual font in which the regulated notice must be given.

[20] Tex. Pen. Code Ann § 30.06(d); id. § 30.07(d).

[21] Tex. Pen. Code Ann § 30.06(d); id. § 30.07(d).

[22] The common language is in black. The unique § 30.06 language is in red. The unique § 30.07 language is in green. “Pursuant to Section 30.06 (30.07), Penal Code (trespass by license holder with a concealed handgun (an openly carried handgun)), a person licensed under Subchapter H, Chapter 411, Government Code (handgun licensing law), may not enter this property with a concealed handgun (that is carried openly).”

[23] The Spanish wording would be: “De conformidad con los artículos 30.06 y 30.07, Código Penal (prevaricación por titular de la licencia con una pistola oculta o llevada abiertamente), una persona con licencia bajo el Subcapítulo H, Capítulo 411, Código de Gobierno (ley de licencias arma de fuego), no puede entrar en esta propiedad con una pistola oculta o un arma de fuego que se realiza abiertamente.”

[24] Police departments from other jurisdictions in the state may not agree that this combined notice is the regulated notice under §§ 30.06 or 30.07 which requires “written language identical to the following.” Tex. Pen. Code Ann. §§ 30.06(c)(3)(A); id. § 30.07(c)(3)(A). Also, there is no guarantee that a court or ultimately the Texas Supreme Court would agree with the combined notice.

[25] Tex. Pen. Code Ann. § 46.035(b)(CHL holder commits an offense “if the license holder intentionally, knowingly or recklessly carries a handgun under [the concealed handgun law] regardless of whether the handgun is concealed, on or about the license holder’s person”).

[26] Tex. Pen. Code Ann. § 46.035(b)(1)(any business that derives 51% or more of its income from selling alcohol/beer/wine).

[27] Tex. Pen. Code Ann. § 46.035(b)(6).

[28] Tex. Pen. Code Ann. § 46.035(b)(4) (unless the license holder has written authorization from the hospital/nursing home administration).

[29] Tex. Pen. Code Ann. § 46.03(a)(1); id. § 46.035(b)(2)(on the premises where a high school, interscholastic, college or professional sporting event is taking place unless the license holder is a participant in the event and a handgun is used in the event)

[30] Tex. Pen. Code Ann. § 46.03(a)(3).

[31] Tex. Pen. Code Ann. § 46.035(c).

[32] Tex. Pen. Code Ann. § 46.035(b)(3). Section 46.03 also has the more specific prohibition of “[w]ithin 1000 feet of a Department of Corrections execution facility on the day of the execution after notice has been provided).

[33] Tex. Pen. Code Ann. § 46.03(a)(2).

[34] Tex. Pen. Code Ann. § 46.035(b)(5). Section 46.035(f) defines “amusement park” as a large commercial facility: “a permanent indoor or outdoor facility or park where the amusement rides are available for use by the public that is located in a county with a population of more than one million, encompasses at least 75 acres in surface area, is enclosed with access only through controlled entries, is open for operation more than 120 days in a calendar year and has security guards on the premises at all times. The term does not include any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area.”

[35] Tex. Pen. Code Ann. § 46.03(a)(4).

[36] Tex. Pen. Code Ann. § 46.03(a)(5).

[37] See www.txdot.gov.

[38]Tex. Pen. Code Ann. § 46.035(d)(the CHL holder must be “intoxicated”). Intoxicated means (A) “not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or (B) having an alcohol concentration of 0.08 or more.” Id. § 49.01(2). For those who are dying to know what “alcohol concentration” means, it is the number of grams of alcohol per (A) 210 liters of breath; (B) 100 milliliters of blood; or (C) 67 milliliters of urine. Id. § 49.01(1).

[39] Criminals Beware!

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