RECEIVED cm 2 2015 GPENEQN CGWITTEE R0 - GOVERNOR GREG Memorandum To: Virginia K. Hoelscher, Chair, Opinion Committee, Of?ce of the Attorney General From: Andrew Oldham, Deputy General Counsel, Of?ce of the Governor Jimmy Blacklock, General Counsel, Of?ce of the Governor Re: Please consider this memorandum on behalf of the Of?ce of Governor Greg Abbott in response to the opinion requests by the District Attorneys of Hays County (RQ- and Tom Green County DISCUSSION As of September 1, 2015, it is unlawful for ?a state agency or a political subdivision of the state? to post a ?30.06 notice?? or ?any Sign? that prohibits a concealed handgun license holder ?from entering or remaining on a premises or other place owned or leased by the governmental entity.? TEX. CODE The only exceptions in Subsection 411.209(a) are for premises where weapons are statutorily prohibited by Sections 46.03 and 46.035 of the Penal Code. Put differently, if the - Legislature has made a statutory judgment to exclude CHL holders from carrying handguns on a particular type of premises, then that exclusion does not disappear simply because the premises are owned by a state agency or political subdivision. But unlike private property owners, state agencies and political subdivisions cannot make their own decisions to exclude CHL holders. Thus, state agencies and political subdivisions can bar CHL holders only from those premises identi?ed by the Legislature. Generally, the Legislature has prohibited CHL holders from carrying their weapons on the premises of schools, polling places on election day, racetracks, the secured areas of airports, bars, prisons, hospitals (with proper signs), amusement parks (with proper signs), and established houses of worship (with proper signs). See TEX. PENAL CODE 46.03, 46.035. In addition, the Legislature has prohibited CHL holders from carrying handguns on the premises of ?government c6urt[s]? and governmental TEX. PENAL CODE A ?30.06 notice? must contain the following text in one-inch block letters, with contrasting colors, in English and in Spanish, and be displayed in a conspicuous manner clearly visible to the public: ?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.? TEX. PENAL CODE Virginia K. Hoelscher October 9, 2015 Page 2 The latter two terms have caused some confusion when a state agency or political subdivision uses a single, multi-purpose building to hold ?court? proceedings or governmental ?meetings? (which obviously are mentioned in Sections 46.03 and 46.035 of the Penal Code), as well as perform other governmental functions that are not mentioned in the Penal Code. It is our Of?ce?s View that Texas law does not permit a state agency or political subdivision to prohibit a person carrying a handgun and a CHL from entering such a multi?purpose governmental building. It does not matter whether the state agency of political subdivision attempts to accomplish its ban by posting a ?30.06 notice,? by posting ?Weapons Free Zone? signs, by postingrother signs that tell CHL holders in whatever terms not to bring their ?rearms inside, by providing oral notice that concealed handguns are prohibited, or by any other means. The newly enacted Section 411.209 of the Government Code makes it unlawful?upon pain of civil penalties?for a state agency or political subdivision to completely bar entry to a governmental building unless the entire building is dedicated to one or more of the purposes described in Sections 46.03 and 46.035 of the Penal Code. While entry into the portions of the building that constitute the premises of a government court or government meeting is prohibited by Sections 46.03 and 46.035, preventing entry into other portions of the building would violate Section That is so for three reasons. First, a multi-purpose government building as a whole does not qualify as ?the premises of any government court.? Second, a multi? purpose government building as a whole does not qualify as the premises of a governmental ?meeting.? And third, the Legislature?s statutory prescriptions on CHL holders are the ceiling of regulation; state agencies and political subdivisions are not free to add more. I. A MULTI-PURPOSE BUILDING Is NOT A A. First, the Legislature has statutorily prohibited handgun licensees from carrying on ?the premises of any government court or of?ces utilized by the court.? TEX. PENAL CODE When the ?court? is located inside a multi-purpose government building, however, Texas law allows a state agency or political subdivision to ban handgun licensees from only the portion of the building that quali?es as the ?premises? of the ?court.? The plain text of the Penal Code de?nes the ?premises? of a court and its of?ces to mean the ?building or [the] portion ofa building? utilized as a court or court of?ces. TEX. PENAL CODE The italicized portion of that de?nition plainly means that only the ?portion? of a multi-purpose building that is used for as a court or court of?ce can qualify as an excluded place? under Section 46.03. Thus, under the plain meaning of the statute, when a state agency or political subdivision uses a single building to do multiple things, it can exclude handgun licensees from only those ?portion[s] of a building? where the 46.03 and 46.035 activities are ongoing. Ibid. Virginia K. Hoelscher October 9, 2015 Page 3 That result comports with the broader structure of the handgun licensing statute. The handgun licensing statute, found in Subchapter of Texas Government Code Chapter 411, generally authorizes licensees to carry their ?rearms anywhere in Texas. That general authorization, then, is subject to speci?c and enumerated statutory exceptions?most notably those in Chapter 46 of the Texas Penal Code. As the Attorney General already has concluded, that structure shows that the Legislature conceived of limitations on licensees as the exception that proves the rule of freedom to carry.? See Tex. Att?y Gen. Op. No. JC-0325, at 2 (Jan. 5, 2001). Moreover, it is a well-established rule of statutory construction that ?where a general rule has been established by statute with exceptions, the courts will not curtail the rule, or add to the exceptions, by implication.? Wallace v. Stevens, 12 SW. 283, 283 (Tex. 1889). Thus, a state agency or political subdivision cannot curtail the rule (of licensed carry) or add to the exceptions (of prohibited carry) by implying a broader de?nition of ?premises? than the one adopted by the Legislature. That means a state agency or political subdivision cannot exclude CHL holders from multi-purpose buildings by virtue of the mere fact that the premises contain a court. Rather, it is the state agency?s or political subdivision?s burden to identify the particular ?portion of [the] building? where it wants to ban CHL holders and to explain how that ?portion is either a ?court? or an ?of?ce[] utilized by court.? B. Some general rules are apparent. Courtrooms certainly qualify as the ?premises of any government court.? TEX. PENAL CODE The question then becomes, what is an ?of?ce[] utilized by court?? In our View, the latter phrase means an of?ce that is part of the court and is used by the court 100% of the time. Thus, the diStrict court judges? chambers, the county courts-at?law judges? chambers, and the clerk?s of?ce qualify as the ?of?ces utilized by the court.? Ibid. In our view, however, the Legislature has not banned CHL holders from carrying in a district attorney?s of?ce, in a county treasurer?s of?ce, the tax assesscr?s office, the auditor?s of?ce, the elections of?ce, the human resources of?ce, the IT of?ce, and any other government of?ce that is not part of the court. To be sure, some or all of those of?ces might serve the courts in some sense. But the legislative proscription on handgun licensees does not extend to any of?ce that merely serves the court. If the Legislature wanted to ban handgun licensees from any of?ce that ?served? the court, it surely would have said sowbut it did not. See, e. g, Bloate v. United States, 559 US. 196, 211 n.13 (2010) (?Had Congress wished courts to [apply a statutory exclusion], it could have said so. . . . Congress did not do so, and we are bound to enforce only the language that Congress and the President enacted?). The Legislature instead prohibited handgun licensees from carrying in ?of?ces utilized by the court.? TEX. PENAL CODE (emphasis added). That means neither the Attorney General nor a court can interpret the exclusion for ?offices utilized by the court? to mean ?of?ces that serve the court.? A state agency or political subdivision might urge a broad reading of ?utilized by the courts,? but that argument should fail. For example, in Public Citizen v. DOJ, 491 Virginia K. Hoelscher October 9, 2015 Page 4 US. 440 (1989), the Supreme Court of the United States recognized that the word ?utilize? in the Federal Advisory Committee Act ?is a wooly verb,? and ?one common sense of the term? is merely to ?make[] use of.? Id. at 452. But the Court held that such a broad reading Of the word ?utilize? must yield to the broader statutory context. See id. at 452-67 (rejecting a broad reading of ?utilize?). So here; especially when coupled with the Legislature?s recognition that the ban on handgun licensees must be limited to the ?portion of a building? that constitutes the court or the court?s of?ces, it would be unreasonable to interpret ?of?ces utilized by the court? to extend to any of?ce that the court uses. See also Cannon v. Univ. of Chicago, 441 US. 677, 696 (1979) (legislatures presumably are aware of previous judicial decisions construing ?critical language? in statutes, and legislatures impliedly incorporate these judicial glosses when they reenact that ?critical language? in other statutes). C. Finally, because both of the pending opinion requests were submitted by district attorneys, it bears particular emphasis that the district attorney?s of?ce cannot be considered an ?of?ce[] utilized by the court? under any reasonable interpretation of that phrase. It is true that ?[t]he district attorney represent[s] the majesty of the people,? ?ha[s] no responsibility except fairly to discharge his duty,? and is consequently held to higher ethical standards than other lawyers. People v. Greenwall, 22 NE. 180, 182 (N .Y. 1889). And given those higher standards, it is true that the district attorney is not ?an ordinary party to a controversy.? Berger v. United States, 295 US. 78, 88 (1935) (emphasis added). But it is equally true that the district attorney remains a party to a controversy on behalf of the People Of this State; and as such, he is most de?nitely not the equivalent Of a ?court? or a court?s ?of?ces.? II. THE PROVISION DOES NOT APPLY TO THE ENTIRETY OFA MULTI-PURPOSE BUILDING The same bill that generally prohibits state agencies and political subdivisions from keeping out handgun licensees?Senate Bill 273, 84th Regular Session?contains a second statutory change that further con?rms the unlawfulness of excluding CHL holders at the entrance to a multi?purpose government building. In particular, after adding 411.209 to the Texas Government Code, Senate Bill 273 also amended the so-called ?governmental meeting? exception. Under previous law, the Legislature prohibited a handgun licensee from carrying a weapon to ?any meeting of a governmental entity.? TEX. PENAL CODE 46.035(c) (2013?). That created some confusion amongst governmental entities that regularly hold ?meetings,? at least under a common understanding of that term. And at least some governmental entities interpreted the Old version of Section 46.03 5(0) to allow the entities to ban handgun licensees whenever government of?cials ?met? amongst themselves or with members of the public. Effective September 1, 2015, however, the Legislature has clari?ed that the exclusion for handgun licensees is dramatically narrower than that. In particular, the Virginia K. Hoelscher October 9, 2015 Page 5 amended text makes clear that handgun licensees are statutorily prohibited from carrying weapons only when the governmental meeting satis?es the strictures of the Texas Open Meetings Act, and even then, the prohibition on handguns applies only ?in the room or rooms where a meeting of a governmental entity is held.? TEX. PENAL CODE 46.035(c) (emphasis added). A That statutory change has two important implications for multi-purpose government buildings. First, it underscores that the Legislature?s proscriptions on handgun licensees extend only to the ?room or rooms? where the statutorily designated activity is ongoing; it does not extend to the entire building. And second, it con?rms that ordinary ?meetings? between government of?cials or with the public are not enough to trigger the statutory prohibition on handgun licensees. Rather, to get the bene?t of Section governmental meeting exception, the governmental entity must ?rst comply with the Open Meetings Act and, even then, apply the prohibition only to the room or rooms where the open meeting takes place. STATE AGENCIES AND POLITICAL SUBDIVISIONS CANNOT IMPOSE HANDGUN RESTRICTIONS BEYOND THOSE IMPOSED BY THE LEGISLATURE AS explained above, state agencies and political subdivisions can post .?30.06 notices? only for governmental activities that the Legislature has identi?ed in Sections 4603 and 46.035 of the Penal Code, and even then, only in the portion of the building where those activities are ongoing. A natural question might be whether the state agency or political subdivision can nonetheless go beyond Section 30.06 and impose their own rules, regulations, signs, or handgun policies that affect CHL holders. They plainly cannot. The Attorney General already has concluded that the restrictions imposed by th Legislature impose the ceiling on governmental regulation: ?3 In our opinion, a unit of government has no authority, merely by promulgating rules, regulations, or policies, to prohibit entry by concealed handgun licensees carrying their weapons. As we have noted, subchapter of chapter 411 of the Government Code enacts a comprehensive scheme for licensing the carrying of concealed handguns. [Given that] subchapter H, chapter 411 of the Government Code authorizes a concealed handgun licensee to carry his weapon wherever a statute does not af?rmatively prohibit his doing so, it follows that a unit of local government may not, by ordinance, rule, regulation, or policy, place restrictions on the licensee?s authority to do so. Tex. Att?y Gen. Op. No. JC-0325, at 2 (Jan. 5, 2001). Put differently, the restrictions in Texas Penal Code 46.03 and 46.035 are the only relevant restrictions on handgun licensees who want to carry in a multi-purpose government building. Any desire by a state agency or political subdivision to impose additional restrictions is legally irrelevant. Virginia K. Heelscher October 9, 2015 Page 6 Moreover, in the case of political subdivisions, the Local Government Code Section further con?rms that the Legislature has established the ceiling of regulation on CHL holders. For example, municipalities can regulate the carrying of handguns by non- CHL holders at public parks; public meetings of municipal, county-level, or other governmental bodies; political rallies, parades, and of?cial political meetings; and certain athletic events. See TEX. LOC. CODE And counties can ?regulate the discharge of ?rearms and air guns on lots that are 10 acres or smaller and are located in the unincorporated area of the county in a subdivision.? TEX. LOC. CODE 235.022. But by carving out these areas for municipal and county?level regulation, the Legislature impliedly prohibited political subdivisions from regulating in other ways? including by imposing regulations on where CHL holders can carry. See, e. Tyson v. Brirton, 6 Tex. 222, 224 (1851). Thus, it does not matter how a state agency or political subdivision tries to prohibit CHL holders from entering a building with a ?rearm because the Legislature has occupied that ?eld of regulation. With respect to signs, the Legislature has prohibited state agencies and political subdivisions from ?provid[ing] notice by a communication described by Section 30.06, Penal Code, or by any sign expressly referring to that law or to a concealed handgun license, that a license holder carrying a handgun under the authority of this subchapter is prohibited from entering or remaining on a premises.? TEX. CODE 41 .209(a) (emphasis added). The italicized language plainly means that the governmental entity cannot post ?any sign? that has the effect of banning a concealed handgunmregardless of what language, picture, or other means it might use. Nor can the state agency or political subdivision rely on oral notice to the CHL holder. It is true that, under Section 30.06 of the Penal Code, private property owners can provide effective oral notice to exclude handgun licensees. See TEX. PENAL CODE But since 2003, it is also true that a governmental entizys notice, whether oral or otherwise, does not trigger that section?s exclusion of handgun licensees. See id. And if there was any doubt on the latter score, the Legislature has now further con?rmed that governmental entities?as opposed to private property owners? cannot invoke Section 30.06. See TEX. CODE 411.209. In sum, the Legislature has preempted any effort by state agencies or political subdivisions to add to the restrictions on where CHL holders can carry concealed weapons. Moreover, those restrictions must be interpreted narrowly and in the broader context of the CHL law. In our Of?ce?sview, both the plain text and broader statutory context of the CHL laws indicate that state agencies and political subdivisions cannot ban CHL holders from entering multi-purpose government buildings?unless the state agency or political subdivision can prove that the entirety of the building is dedicated to one or more of the purposes identi?ed in Sections 46.03 and 46.035 of the Penal Code.