AG opinion on SB11

[dhoobler]

https://www.texasattorneygeneral.gov/op ... kp0051.pdf

SUMMARY
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.

[locke_n_load]

Pretty much just regurgitated what the legislature has stated.

how does one look for and find these opinions? I could not find this opinion by searching the AG site at all, only by news articles.

[dhoobler]

how does one look for and find these opinions? I could not find this opinion by searching the AG site at all, only by news articles.

https://www.texasattorneygeneral.gov/op ... o-opinions

[ELB]

Kirk Watson has a sad.

[ELB]

Footnote 7:

7 You do not ask whether institutions of higher education may establish policies regarding the manner in
which license holders carry on campus, such as holster requirements or policies regarding the presence of a chambered
round. See Campus Carry Policy Working Group Final Report, supra note 3 at 16 (preventing license holders from
carrying a gun with a chambered round, requiring license holders to carry in a holster that completely covers the
trigger and trigger guard area, and requiring sufficient tension on the handgun to retain it in the holster when subjected
to unexpected jostling). Analyzing such restrictions would involve whether S.B. 11 delegated to public institutions
of higher education the ability to restrict the manner in which license holders carry and whether state law restrictions
on the manner of carrying preempts the field of such regulations. See, e.g., S. Crushed Concrete, L.L.C. v. City of
Houston, 398 S.W.3d 676, 678 (Tex. 2013) (recognizing that state law may preempt local ordinances).

Am I wrong in thinking that the AG is signaling that Senator Birdwell should ask this question, and if he does, the AG's opinion will be "no they can't regulate how to carry" ?

[TVegas]

For those that may not want to read the entire opinion, I added some information to provide a bit more context to the summary. I do suggest that everyone read the opinion, and keep in mind that an AG opinion does not guarantee the opinion of the courts.

https://www.texasattorneygeneral.gov/op ... kp0051.pdf

SUMMARY
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 (referencing classrooms which are occupied by grade school classes) 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. (the code states that institutions can only regulate how firearms are stored in residential facilities)

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. (my thoughts: if the institution is required to post 30.06 on prohibited buildings, then I don't see how an online notice of a temporary prohibition is sufficient)

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. (sovereign immunity would limit any cause of action to providing only injunctive relief (the institution would have to fix the issue), no money damages)

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.(same as above)

Thanks to the OP for posting about the opinion!

[TVegas]

Footnote 7:

7 You do not ask whether institutions of higher education may establish policies regarding the manner in
which license holders carry on campus, such as holster requirements or policies regarding the presence of a chambered
round. See Campus Carry Policy Working Group Final Report, supra note 3 at 16 (preventing license holders from
carrying a gun with a chambered round, requiring license holders to carry in a holster that completely covers the
trigger and trigger guard area, and requiring sufficient tension on the handgun to retain it in the holster when subjected
to unexpected jostling). Analyzing such restrictions would involve whether S.B. 11 delegated to public institutions
of higher education the ability to restrict the manner in which license holders carry and whether state law restrictions
on the manner of carrying preempts the field of such regulations. See, e.g., S. Crushed Concrete, L.L.C. v. City of
Houston, 398 S.W.3d 676, 678 (Tex. 2013) (recognizing that state law may preempt local ordinances).

Am I wrong in thinking that the AG is signaling that Senator Birdwell should ask this question, and if he does, the AG's opinion will be "no they can't regulate how to carry" ?

It looks like that's exactly what he's saying. It's good that he had the foresight to add that in.

[casp625]

how does one look for and find these opinions? I could not find this opinion by searching the AG site at all, only by news articles.

https://www.texasattorneygeneral.gov/op ... o-opinions

Also, here are the pending opinions, which you can subscribe to when they are updated:
https://www.texasattorneygeneral.gov/op ... recent.php

[locke_n_load]

Is there no opinion requested for police demanding ID for Open Carriers without any other suspicion/cause?

[dhoobler]

Is there no opinion requested for police demanding ID for Open Carriers without any other suspicion/cause?

No. That question relates to HB 910, not SB 11.

There was an amendment added to HB 910 that would have prohibited police officers from asking for ID of someone who was openly carrying a handgun. It had support from democrats, who feared profiling, and from libertarians. It was removed from HB 910 prior to passage because of push-back from law enforcement.

[locke_n_load]

Is there no opinion requested for police demanding ID for Open Carriers without any other suspicion/cause?

No. That question relates to HB 910, not SB 11.

There was an amendment added to HB 910 that would have prohibited police officers from asking for ID of someone who was openly carrying a handgun. It had support from democrats, who feared profiling, and from libertarians. It was removed from HB 910 prior to passage because of push-back from law enforcement.

I know it relates to OC, but I thought someone here who has read through the requests might know.
I am also aware of the Dutton amendment, but the legislature said it was not needed because the 4th amendment gave that protection. I thought someone may have asked for clarification by the AG if police could ask for a license with no other suspicion other than an openly carried handgun.

[mreed911]

Is there no opinion requested for police demanding ID for Open Carriers without any other suspicion/cause?

Carrying a handgun, concealed or openly, is a crime in Texas. That's RS/PC enough for the stop.

An LTC makes the law not apply (which is NOT the same as an exception in terms of the penal code), but you can't know that until after the stop.

Sucks, but that's the way it is.

[ScottDLS]

Is there no opinion requested for police demanding ID for Open Carriers without any other suspicion/cause?

Carrying a handgun, concealed or openly, is a crime in Texas. That's RS/PC enough for the stop.

An LTC makes the law not apply (which is NOT the same as an exception in terms of the penal code), but you can't know that until after the stop.

Sucks, but that's the way it is.

That is not settled law. It's illegal to drive a car on a public highway unless you have a valid driver's license, and Texas law says that that it's OK for a cop to stop you to verify that you have a license, but SCOTUS disagrees in Delaware v. Prouse (1979). This is probably the closest analogy to licensed open carry in Texas. So I expect it will be sorted out in the New Year.

[TexasJohnBoy]

This is great news. I just finished reading the entire opinion and I can just feel the rage of the gun-free folks. Pretty much everything that we thought it said. Oh, and everything that the legislature said it had in it.

[locke_n_load]

Is there no opinion requested for police demanding ID for Open Carriers without any other suspicion/cause?

Carrying a handgun, concealed or openly, is a crime in Texas. That's RS/PC enough for the stop.

An LTC makes the law not apply (which is NOT the same as an exception in terms of the penal code), but you can't know that until after the stop.

Sucks, but that's the way it is.

That is not settled law. It's illegal to drive a car on a public highway unless you have a valid driver's license, and Texas law says that that it's OK for a cop to stop you to verify that you have a license, but SCOTUS disagrees in Delaware v. Prouse (1979). This is probably the closest analogy to licensed open carry in Texas. So I expect it will be sorted out in the New Year.

What Scott said Mike. I don't consider it settled until I hear an AG opinion or case law is made. Too much grey area for me.