Concealed carry in a school parking lot

[SW-14]

Is it legal to have a pistol in the car while I'm working at school? I know that I can't carry it inside, but I'm not sure what the law says about it being in the parking lot. If you could provide the actual penal code that addresses this, I would very much appreciate it.

[whumble]

FEDERAL
The Gun-Free School Zones Act of 1990 was enacted as section 1702 of the Crime Control Act of 1990 (Pub.L. 101-647, 18 U.S.C. § 922(q)) on November 29, 1990.

It was subsequently declared to be an unconstitutional exercise of Congressional authority under the Commerce Clause of the United States Constitution by the United States Supreme Court, and was therefore voided. This case, United States v. Lopez (1995), was the first time in over half a century that the Supreme Court limited Congressional authority to legislate under the Commerce Clause.

See also United States v. Morrison (2000), in which the U.S. Supreme Court also ruled that Congress lacked the authority to enact such laws even when there was evidence of aggregate effect.

Congress re-enacted the law in the GFSZ Act of 1996, following the Supreme Court's ruling, correcting the technical defects identified by the Court by adding wording placing the burden on the prosecutor to prove an additional element, that the "firearm has moved in or otherwise affects interstate commerce."

STATE
§ 46.03. PLACES WEAPONS PROHIBITED. (a) A person commits
an offense if the person intentionally, knowingly, or recklessly
possesses or goes with a firearm, illegal knife, club, or
prohibited weapon listed in Section 46.05(a):
(1) on the physical premises of a school or
educational institution, any grounds or building on which an
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
(3) "Premises" means a building or a portion of a
building. The term does not include any public or private driveway,
street, sidewalk or walkway, parking lot, parking garage, or other
parking area.

Not illegal but check your employee handbook it will most likely say no guns. You may not go to jail but i bet you wont be working there anymore either if they find out.

[SW-14]

Thanks for your reply. How does that relate to this law?

§ 46.11. PENALTY IF OFFENSE COMMITTED WITHIN WEAPON-FREE
SCHOOL ZONE. (a) Except as provided by Subsection (b), the
punishment prescribed for an offense under this chapter is
increased to the punishment prescribed for the next highest
category of offense if it is shown beyond a reasonable doubt on the
trial of the offense that the actor committed the offense in a place
that the actor knew was:
(1) within 300 feet of the premises of a school; or
(2) on premises where:
(A) an official school function is taking place;
or
(B) an event sponsored or sanctioned by the
University Interscholastic League is taking place.
(b) This section does not apply to an offense under Section
46.03(a)(1).
(c) In this section:
(1) "Institution of higher education" and "premises"
have the meanings assigned by Section 481.134, Health and Safety
Code.
(2) "School" means a private or public elementary or
secondary school.

Does this only mean that there are increased penalties if you are in a "gun free school zone" and commit an offense? Does the federal GFSZ Act of 1996 have anything that overrides Texas PC 46.03?

[whumble]

IANAL, but my assumption would be 46.11 is for any offense other than that specified by 46.03

[srothstein]

Does this only mean that there are increased penalties if you are in a "gun free school zone" and commit an offense?

Yes, that is exactly what this means. Only if there is already a violation under the Texas Penal Code does this section apply.

Does the federal GFSZ Act of 1996 have anything that overrides Texas PC 46.03?

Yes, any federal law will override state law if there is a conflict. So, the state cannot pass a law that says you can do something when the feds haev a law saying you cannot (see the current political fights over medical marijuana as one example). In this case, the federal law makes it illegal to have the weapon in your car UNLESS you have a Texas CHL (in Texas). If you have a CHL, then the federal law does not apply and the state law kicks in.

But, the reality of the situation is that local cops enforce Texas law. They get very little if any training on federal law. They also get very little training on other Texas laws than the Penal Code (like the sections of the Education Code that pertain to firearms). In real life, the new version of the federal law has not been challenged and possibly not even used. I do not see the feds getting involved in a mere possession case, as they tend to use laws like this as add-ons for cases with other charges, like drugs dealing.

When I talk with people, I like them to be fully informed of what I know about a subject. I will give them the Texas and Federal laws, so they can make their own decision on what to do. My information may not be full or accurate, so i will also wanr you not to rely on it extensively. But I do the best I can. I think you will find that most of the people in this forum are the same way. Sometimes, it can result in more information than you wanted to know, but rarely are these types of questions a simple yes or no answer.

[Keith B]

IF you have a resident CHL from the state you live in, you are exempt from the GFSZA. However, you have to follow the rules of the state on carry on school premise. In Texas, you can have them on the school grounds, UNLESS there is a school sponsored activity taking place (football game, sports practice, band concert, etc.), as premise in Texas has been defined as the building.

Now, as a school employee, if your employee manual says you can't have firearms on SCHOOL PROPERTY, then you would be subject to dismissal, but not criminal prosecution.

If you DON'T have resident CHL, then you are bound under the GFSZA guidelines to the 1000' boundary.

IANAL.

Edited to add: srothstein beat me to most of this.

[whumble]

Thanks srothstein i forgot about the CHL part

[SW-14]

Ok, that clarifies it all. I've checked with the school district handbook, and it states:

Employees, visitors, and students are prohibited from bringing firearms, illegal knives, or other weapons onto school premises or any grounds or building where a school-sponsored activity takes place.

This just leads to more questions - what is "school premises or any grounds" defined as?

[Keith B]

Ok, that clarifies it all. I've checked with the school district handbook, and it states:

Employees, visitors, and students are prohibited from bringing firearms, illegal knives, or other weapons onto school premises or any grounds or building where a school-sponsored activity takes place.

This just leads to more questions - what is "school premises or any grounds" defined as?

Read back in 46.03 and 46.11 and sounds like they are following the states definition that premise is building. Disclaimer, IANAL (I Am Not A Lawyer.)

[SW-14]

I would think the same thing.

[howdy]

I was a part time teacher last year, and my district (Katy) just says that employees have to follow "state law" when it comes to firearms. Remember your written test for your CHL. One of the T/F questions is similar to "You have an appointment at school with your child's teacher. It is ok to leave your handgun locked in your car." T/F If you have a CHL, the answer is true. Also, in the back of the handbook that you received with your packet, there is an example that is almost identical to the above question.

[ELB]

...In real life, the new version of the federal law has not been challenged and possibly not even used...

A technical quibble. The "new improved" GFSZA has indeed been used and challenged, on the grounds that Congress exceeded its authority under the commerce clause. None of the challenges I know of have made it past the Federal Circuit courts -- all have unanimously ruled that that little "jurisdictional element" that congress added to the original GFSZA cured its constitutional defects. I summarized a couple of these, with links, in another thread around here someplace.

In general, feds have charged GFSZA violations as add-ons to something else. There is one case where a CHL holder (in Alabama) was charged with having a gun within 1000' of an Alabama school under the GFSZA, and the circuit court overturned his conviction because he did have a valid CHL (or whatever Alabama calls it). That did not "overturn" the GFSZA; it confirmed it, because one of the exceptions is for a person who has a CHL from the same state that the school is in.

Basically, if Congress mumbles something about "used in interstate commerce" in a law, commerce clause restrictions go away. Congress's ability to regulate anything is pretty much unchecked.

[srothstein]

Thanks, ELB. I was not aware that it had ever been challenged, even at the District court level, let alone Circuit Court.

[RPB]

Page 71 of the publication LS-16, printed August 2008, by the DPS says "A License holder is not proibited from having a handgun in his or her vehicle in a school parking lot"


BUT THERE ARE: 2 definitions of "premises" for 2 purposes

Penal Code 46.03 refers to Penal Code § 46.035 (f)(3) for a definition BUT
PENAL CODE § 46.11(1) "Institution of higher education" and "premises"
have the meanings assigned by Section 481.134, Health and Safety
Code.



Whereas regarding Penal Code 46.03 refers to Penal Code § 46.035 (f)(3)
(3) "Premises" means a building or a portion of a
building. The term does not include any public or private driveway,
street, sidewalk or walkway, parking lot, parking garage, or other
parking area.


Here's a difference, and different defiinition pointed to regarding 46.11

Note that PENAL CODE § 46.11 PENALTY IF OFFENSE COMMITTED WITHIN WEAPON-FREE
SCHOOL ZONE(1) "Institution of higher education" and "premises"
have the meanings assigned by Section 481.134, Health and Safety
Code.

Texas Health & Safety Code - Section 481.134. Drug-Free Zones
§ 481.134. DRUG-FREE ZONES.
(a) In this section:
(4) "Premises" means real property and all buildings
and appurtenances pertaining to the real property.
(b) This section does not apply to an offense under Section
46.03(a)(1).

(For example, it's a 3rd degree felony to threaten to exhibit it or exhibit it in a school parking lot, which is NOT a Penal Code 46.03(1) offense, (carrying in a school building, or portion of a building) but is an offense under Texas Education Code 37.125 ... (and for enhancement of penalty purposes, for licensed or unlicensed, the definition expanded to the "within 300 feet of the premises (real property) of a school " and could possibly be a second degree felony, instead of third degree, with the enhancement)

http://www.statutes.legis.state.tx.us/D ... /ED.37.htm" onclick="window.open(this.href);return false;
EDUCATION CODE
TITLE 2. PUBLIC EDUCATION
SUBTITLE G. SAFE SCHOOLS
CHAPTER 37. DISCIPLINE; LAW AND ORDER
Sec. 37.125. EXHIBITION OF FIREARMS. (a) A person commits an offense if, in a manner intended to cause alarm or personal injury to another person or to damage school property, the person intentionally exhibits, uses, or threatens to exhibit or use a firearm:
(1) in or on any property, including a parking lot, parking garage, or other parking area, that is owned by a private or public school; or
(2) on a school bus being used to transport children to or from school-sponsored activities of a private or public school.
(b) An offense under this section is a third degree felony.

Added by Acts 1995, 74th Leg., ch. 260, Sec. 1, eff. May 30, 1995.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 704, Sec. 1, eff. September 1, 2007.



I'm no lawyer

[ELB]

One further technical quibble:

IF you have a resident CHL from the state you live in, you are exempt from the GFSZA...

Actually, the exception in the GFSZA says possession of a firearm is not illegal:

(ii) if the individual possessing the firearm is licensed to do so by the State in which the school zone is located ...

Thus it appears you do not need to be a resident of the state, but rather you must have a license issued by the same state (or political subdivision thereof) that the school is in. If you have Utah license, and you are in a school zone in Utah, it appears being a Texas resident would not matter.