Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

April 17, 2014

The Honorable Joseph C. Pickett Opinion No. GA-1051
Chair, Committee on Homeland Security
and Public Safety Re: Whether a school district may authorize an
Texas House ofRepresentatives employee or trustee to carry a concealed handgun at
Post Office Box 2910 any meeting of a governmental entity or on the
Austin, Texas 78768-2910 premises of school property where a sporting event
or interscholastic event is taking place
(RQ-1158-GA)

Dear Representative Pickett:

You ask whether a school district may authorize an employee or trustee to carry a
concealed handgun at any meeting of a governmental entity or on the premises of school
property where a sporting event or interscholastic event is taking place. 1 You inform us that
several school district boards of trustees have adopted policies allowing designated employees to
carry handguns on school premises pursuant to subsection 46.03(a)(1) of the Penal Code.
Request Letter at 1-2. You further state that a typical policy, commonly called a "Guardian
Plan," requires the designated employee to have a current concealed handgun license ("CHL").
!d. at 3--4. You note that section 46.035 of the Penal Code, however, prohibits a CHL licensee
from carrying a handgun "on the premises where a high school . . . sporting event or
interscholastic event is taking place" or "at any meeting of a governmental entity." !d. at 3-4
(quoting TEX. PENAL CODE ANN. § 46.035(b)(2), (c) (West Supp. 2013). In your first two
questions, you ask whether a board of trustees' written authorizations to allow a trustee or
employee to carry a handgun on school premises under subsection 46.03(a)(1) of the Penal Code
"overrides" section 46.035's prohibitions as applied to a school sporting or interscholastic event
or school board meeting. Request Letter at 6.

The goal in statutory construction is "to determine and give effect to the Legislature's
intent." Am. Zurich Ins. Co. v. Samudio, 370 S.W.3d 363, 368 (Tex. 2012). Courts rely on the
plain language of the statutes because "the truest measure of what [the Legislature] intended is
what it enacted." In re Office of Att'y Gen., 2013 WL 854785, at *4 (Tex. 2013). Words and
phrases are "read in context and construed according to the rules of grammar and common

1
See Letter from Hon. Joseph C. Pickett, House Comm. on Homeland Sec. & Pub. Safety, to Hon. Greg
Abbott, Tex. Att'y Gen. at I, 6 (Oct. 21, 2013), http://www.texasattomeygeneral.gov/opin ("Request Letter").
The Honorable Joseph C. Pickett - Page 2 (GA-1051)

usage." TEX. Gov'T CODE ANN. § 311.011 (West 2013). When the words of a statute are clear,
courts "take the Legislature at its word [and] respect its policy choices." Christus Health Gulf
Coast v. Aetna, Inc., 397 S.W.3d 651, 654 (Tex. 2013); see also Entergy Gulf States, Inc. v.
Summers, 282 S.W.3d 433, 437 (Tex. 2009) ("Where text is clear, text is determinative[.]").

Subsection 46.03(a)(1) of the Penal Code provides the general rule prohibiting a person
from carrying a firearm on school premises:

(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;

TEX. PENAL CODE ANN. § 46.03(a)(l) (West 2011) (emphasis added). The phrase "unless
pursuant to written regulations or written authorization of the institution" is written as an
exception to the offense described earlier in the sentence. !d.

Section 46.035 of the Penal Code lists places where a CHL licensee acting under
authority of the concealed handgun statutes may not carry a concealed handgun. See id. § 46.035
(West Supp. 2013). As pertinent here,

(b) A license holder commits an offense if the license holder
intentionally, knowingly, or recklessly carries a handgun under the
authority of Subchapter H, Chapter 411, Government Code,
regardless of whether the handgun is concealed, on or about the
license holder's person:

(2) on the premises2 where a high school, collegiate, or
professional sporting event or interscholastic event is taking

2
In section 46.035, "'[p]remises' 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." TEX.
PENAL CODE ANN. § 46.035(f)(3) (West Supp. 2013).
The Honorable Joseph C. Pickett - Page 3 (GA-1051)

place, unless the license holder is a participant in the event
and a handgun is used in the event;

(c) A license holder commits an offense if the license holder
intentionally, knowingly, or recklessly carries a handgun under the
authority of Subchapter H, Chapter 411, Government Code,
regardless of whether the handgun is concealed, at any meeting of
a governmental entity.

!d. § 46.035(b)(2), (c) (footnote added). Section 46.035, subsections (b) and (c) are violated only
when the handgun is carried "under the authority of Subchapter H, Chapter 411," the concealed
handgun statutes. !d. When a person is authorized by other law to carry a handgun or other
firearm, the person is not carrying the weapon "under the authority of Subchapter H, Chapter
411, Government Code." !d. Thus, to answer your first two questions, Penal Code section
46.035, subsections (b) and (c) are not violated when a person is lawfully carrying a handgun
pursuant to a school board's written regulations and authorization because such a person is not
carrying the weapon "under the authority of Subchapter H, Chapter 411, Government Code."

Your third question is whether "serving as a 'Guardian' under a school district's
'Guardian Plan' [promulgated pursuant to section 46.03(a)(l)] fall[s] within the scope of official
duties of a school board trustee under Texas Education Code§ 11.151l(b)(15)." Request Letter
at 6. Because the issue of scope of official duties may arise in different legal contexts, it is
difficult to give a categorical answer. Subsection 11.1511 (b)(15) of the Education Code
provides that a "board shall ... carry out other powers and duties as provided by this code or
other law." TEX. Enuc. CODE ANN. § 11.151l(b)(15) (West 2012). A board of "trustees as a
body corporate [has] the exclusive power and duty to govern and oversee the management of the
public schools of the district." !d. § 11.151 (b) (setting forth the authority of "trustees as a body
corporate"). Under Education Code subsection 11.151 (b), a board may promulgate written
regulations and authorization as provided by Penal Code subsection 46.03(a)(1). A person acting
according to a school board's written regulations and authorization would likely be acting within
the scope of official duties. 3

Your fourth question concerns House Bill 1009, which creates a new category of law
enforcement officer designated as a school marshal. See Act of May 22, 2013, 83rd Leg., R.S.,
ch. 655, 2012 Tex. Gen. Laws 1742, 1742--46 ("House Bill 1009"). You wish to know if school
district trustees may appoint one employee to serve as a school marshal under House Bill 1009
and authorize another person to serve as a Guardian under a district Guardian Plan pursuant to
subsection 46.03(a)(1) of the Penal Code. Request Letter at 6. As discussed above, subsection
46.03(a)(1) creates an exception to the prohibition of carrying firearms on school premises for

3
Because of the legal issues that could arise in particular contexts, a school board may wish to seek the
assistance of legal counsel in developing a Guardian program involving a trustee. Cf Tex. Att'y Gen. Op. No. GA-
O127 (2003) at 2 (discussing aspects of the common-law doctrine of self-employment incompatibility).
The Honorable Joseph C. Pickett - Page 4 (GA-1051)

persons acting pursuant to a school district's written regulations and authorization. TEX. PENAL
CODE ANN.§ 46.03(a)(l) (West 2011). House Bill1009 authorizes a school district to appoint a
licensed, trained employee as a school marshal and affirmatively authorizes a school marshal to
carry a concealed handgun on school premises according to district policy. See House Bill1009,
§§ 2-7, at 1742-45 (adding TEX. CODE CRIM. PROC. art. 2.127, TEX. EDUC. CODE § 37.0811,
TEX. Gov'T CODE§ 411.1871, TEX. Occ. CODE§§ 1701.001((8), .260, .301). No provision in
House Bill 1009 conflicts with or is in any way inconsistent with subsection 46.03(a)(l) of the
Penal Code. Accordingly, a school board may appoint one person to serve as a school marshal
under section 37.0811 of the Education Code and authorize another person to serve under the
district's regulations and authorization under subsection 46.03(a)(1) of the Penal Code.
The Honorable Joseph C. Pickett - Page 5 (GA-1051)

SUMMARY

Penal Code section 46.035, subsections (b) and (c) are not
violated by a person who is lawfully carrying a handgun pursuant
to a school board of trustees' written regulations and authorization
under subsection 46.03(a)(l). A person acting according to such
regulations and authorization would likely be acting within the
scope of official duties. A school board may appoint one person to
serve as a school marshal under section 37.0811 of the Education
Code and authorize another person to serve under the district's
regulations and authorization under subsection 46.03(a)(l) of the
Penal Code.

Very truly yours,

Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee