© 2015 The Texas Lawbook.
By Laura Hannusch and Zeeshan Malik of Pillsbury
The Open Carry Law will undoubtedly have a significant impact on property owners and employers, but given that it took effect only one week ago, the full scope of that impact has yet to be determined. The first step for those affected is to become familiar with what has changed and the various questions and action items to keep in mind. Furthermore, there are several ambiguities related to the implementation and enforcement of the law that remain open to examination.
What Changed?
Decreased Penalty: The Open Carry Law decreases the penalty for trespassing with a concealed handgun from a Class A misdemeanor (a fine not to exceed $4,000 and/or jail time) to a Class C misdemeanor (a fine not to exceed $500 and no jail time), and establishes the penalty for trespassing with an openly carried handgun to be a Class C misdemeanor. Under Texas law, a trespass occurs when a person enters or remains on or in the property of another without effective consent and the person had notice that entry was forbidden. As applied to the Open Carry Law, the “30.06” and “30.07” signage (discussed below) provides notice that entry with a handgun is forbidden.
Private Enforcement: The penalty for trespassing with either a concealed or an openly carried handgun is enhanced to a Class A misdemeanor only “if it is shown on the trial of the offense that, after entering the property, the license holder was personally given the notice by oral communication [that concealed/openly carried handguns, as applicable, are prohibited] and subsequently failed to depart.” (Tex. Penal Code Ann. §§ 30.06, 30.07).
In order to accomplish such changes, the Open Carry Law amends the Alcoholic Beverage Code, Code of Criminal Procedure, Education Code, Election Code, Family Code, Government Code, Health and Safety Code, Labor Code, Local Government Code, Occupations Code, Parks and Wildlife Code and Penal Code.
Beyond the above, little has changed from a legal standpoint. Under the Open Carry Law, it remains illegal to carry a handgun (concealed or openly) at places including, but not limited to: collegiate and professional sporting events, correctional facilities, hospitals and nursing homes, amusement parks, churches and synagogues, government buildings, airports and public schools (excluding college campuses, as addressed by the new “Campus Carry” legislation).
Considerations for Texas Property Owners
Under the Open Carry Law, property owners will have the right to prohibit both concealed and openly carried handguns on their property. In order to do so, the signage described below must be (1) displayed in a conspicuous manner, (2) clearly visible to the public at each entrance to the property, (3) written in both English and Spanish and (4) in contrasting colors with block letters at least one inch in height.
To prohibit concealed carry, the signage must read exactly as follows:
“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.”
To prohibit open carry, the signage must read exactly as follows:
“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.”
If a property owner would like to prohibit both concealed and openly carry handguns on their property, then both signs must be posted.
Considerations for Texas Employers
In addition to the signage requirements discussed above, Texas employers must also consider how the Open Carry Law will impact the employer/employee relationship.
The Open Carry Law allows public and private employers to prohibit a handgun licensee from carrying a handgun (concealed or openly) on the premises of the business, with “premises” being defined as “a building or a portion of a building,” not including “any public or private driveway, street, sidewalk or walkway, parking lot, parking garage or other parking area.” (Tex. Penal Code Ann. § 46.035(f)(3)). Most notably, an employer may not prohibit an employee with a valid handgun license from transporting or storing a firearm in a locked, privately owned motor vehicle in a parking lot, parking garage or other parking area that the employer provides for employees.
It’s worth noting that the Texas Labor Code provides employers immunity from civil liability (except in cases of gross negligence) for cases involving a firearm or ammunition that the employer is required to allow on the employer’s property.
Open Questions
The practical implications of the Open Carry Law for property owners and employers leave many unanswered questions. Some examples follow:
“At each entrance:” It is unclear if the requirement that signage be posted “at each entrance to the property” includes small entrances for service personnel, entrances from parking lots, garages, sky bridges and/or tunnels, or if signage at the main public entrances at street level will be sufficient. If the owner of an office park with multiple buildings would like to prohibit both concealed and openly carried handguns, will signage be required at the main entrance to the office park (such as the entrance from the public street to any private road or parking garage), or only at entrances to individual buildings or all of the above? Unless and until law provides otherwise, best practices may be to post additional signs if and when in doubt.
Spanish translation: While signage must include the exact language as statutorily provided to be effective, a Spanish translation is not statutorily provided. Will an “improper” Spanish translation deem a sign ineffective? What constitutes an “improper” translation? If a handgun licensee cannot speak Spanish, how is liability impacted if the English translation is correct but the Spanish translation is incorrect?
How to properly give employees notice: While the Open Carry Law allows employers to prohibit handguns on the “premises,” it does not provide guidance on how an employer should convey the company handgun policy to employees. For example, is an employer better protected by posting a sign in a break room, emailing the new policy or updating the company handbook and having all employees sign an acknowledgement of the policy?
Conflicting policies: It remains unclear if an employer has the right to prohibit concealed and openly carried handguns on its premises by third parties if the landlord has not prohibited the same for the entire building. (Note that employers will need to consider employees, visitors, vendors, guests and other third parties separately with respect to such parties’ rights to carry.)
Distribution of liability: How will liability be allocated as between a property owner who allows handguns and an employer/tenant who prohibits them? Should property owners amend existing leases to include a broad indemnity provision for incidents involving handguns? Will a property owner have more or less liability if such owner does not post “30.06” and “30.07” signage (or perhaps posts non-compliant signage) and an incident occurs on its property?
Although there are many hypothetical scenarios that highlight the outstanding questions, such scenarios all boil down to one central question: are property owners and employers better protected (both physically and as against liability) by posting the “30.06” and “30.07” signage?
While the full impact of the Open Carry Law for property owners and employers has yet to be determined, we likely will see how specifics of the Open Carry Law are implemented once precedent is established.
In the interim, Texas property owners and employers should work with property managers, security personnel, administrators, insurers and counsel to prepare a comprehensive weapons policy specific to individual needs.
In doing so, Texas property owners should consider (to the extent not already addressed in a tenant’s lease, including any attached building rules and regulations) addressing the issue by amending the building rules and regulations to add language providing that the landlord has the right to prohibit anyone from entering the premises with a handgun and to post signs prohibiting the same.
In addition, Texas employers should consider revisiting policies regarding both third parties and employees and possibly updating their employee handbooks to establish clear guidelines in light of the Open Carry Law, keeping in mind that employers can only establish policy regarding employee handguns on the “premises.”
Laura Hannusch is a partner and Zeeshan Malik is an associate, both in Pillsbury’s Real Estate practice. They are both based in the firm’s Houston office.
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