Untitled Texas Attorney General Opinion

KEN PAXTON

ATTORNEY GENERAL OF TEXAS

December 21, 2015

The Honorable Brian Birdwell Opinion No. KP-0051

Chair, Committee on Nominations

Texas State Senate Re: Authority of an institution of higher

Post Office Box 12068 education to establish certain rules regarding

Austin, Texas 78701-2068 the carrying of handguns on campus

(RQ-0076-KP)

Dear Senator Birdwell:

You ask six questions related to the authority of a public institution of higher education to

establish certain rules regarding the carrying of handguns on campus. 1 Your questions arise from

the Eighty-fourth Legislature's passage of Senate Bill 11, commonly referred to as the "campus

carry" law, which will take effect August 1, 2016. Request Letter at 1.2 S.B. 11 generally

authorizes individuals licensed to carry concealed handguns to "carry a concealed handgun on or

about the license holder's person while the license holder is on the campus of an institution of

higher education." 2015 Tex. Gen. Laws at 1723 (to be codified at TEX. Gov'T CODE §

411.2031 (b)). In addition, it authorizes the president or other chief executive officer of an

institution of higher education to "establish reasonable rules, regulations, or other provisions

regarding the carrying of concealed handguns by license holders" on campus. Id. (to be codified

at TEX. Gov'T CODE§ 411.2031(d-1)). S.B. 11 also provides that "the president or officer may.

not establish provisions that generally prohibit or have the effect of generally prohibiting license

holders from carrying concealed handguns on the campus of the institution." Id.

Your first question asks whether an institution of higher education will violate the

provisions of S.B. 11 if it "designates a meaningful number of classrooms as areas in which the

possession of concealed handguns by Licensees is not allowed." Request Letter at 4. S.B. 11 does

not expressly address the extent to which the carrying of concealed handguns can be regulated

specifically within classrooms. The carrying of concealed handguns in certain types of classrooms

may pose heightened safety concerns such that the regulation of concealed handguns is authorized

under S.B. 11. As an example, some institutions of higher education have grade school classrooms

1

See Letter from Honorable Brian Birdwell, Chair, Senate Comm. on Nominations, to Honorable Ken Paxton,

Tex. Att'y Gen. at (Nov. 18, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request

Letter"). You note that the "authority granted to public Colleges and private colleges are different," and you limit

your request to "deal solely with public Colleges." Id. at 1.

2

See Act of May 31, 2015, 84th Leg., R.S., ch. 438, § 1, 2015 Tex. Gen. Laws 1723 (hereafter "S.B. 11").

The Honorable Brian Birdwell - Page 2 (KP-0051)

on their campuses. Given that the Legislature has made it a criminal offense to carry a firearm on

the physical premises of such a school, rules regulating the carrying of concealed handguns in such

grade school classrooms would be consistent with the Legislature's intent. See TEX. PENAL CODE

§ 46.03(a)(l ). That said, attending or teaching class is the primary reason most individuals are on

campus. If an institution prohibited. the carrying of concealed handguns .in a substantial number

of classrooms, a court would likely conclude that the effect would be to "generally prohibit" license

holders from carrying concealed handguns on campus, contrary to the Legislature's express

req~irements. 3

Also related to regulation of handguns in the classrooms, your second question asks

whether an institution of higher education will violate the provisions of S.B. 11 if it "allows

individual professors to designate their classrooms as areas in which the possession of the

concealed handguns by Licensees is not allowed." Request Letter at 4. While the Legislature has

required that faculty be consulted prior to establishing the rules, S.B. 11 places the authority to

make rules regarding the carrying of concealed handguns on campus with the "president or other

chief executive officer." 2015 Tex. Gen. Laws at 1723 (to be codified at TEX. Gov'T CODE

§ 411.2031 (d-1) ). No provisions within S.B. 11 authorize a president or chief executive officer to

delegate this authority to individual professors, and reading S.B. 11 as a whole suggests that the

Legislature did not intend to allow such piecemeal regulation of handguns on campus. See TGS-

N OPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011) (explaining that courts

construe statutes as a whole rather than in isolation). Institutions of higher education are required

to "widely distribute the rules ... to the institution's students, staff, and faculty, including by

prominently publishing the provisions on the institution's Internet website." 2015 Tex. Gen. Laws

at 1723-74 (to be codified at TEX. Gov'T CODE § 41 l.2031(d-3)). Requiring that the rules be

.distributed to faculty suggests that the Legislature did not intend for the faculty members

themselves to establish those rules. And, as a practical matter, if each faculty member could

establish individualized rules, adequately publishing such rules and providing the notice required

by S.B. 11 would be unmanageable. 4 Thus, a court would likely conclude that S.B. 11 does not

authorize a president or chief executive officer of an institution of higher education to delegate to

3

See Univ. of Tex. atAustin, Campus Carry Policy Working Group Final Report, at 6, Dec. 2015, available

at http://campuscarry.utexas.edu/CCWorkingGroup-FinalReport.pdf ("The primary on-campus activity for most of

our more than 50,000 students is going to class. Excluding handguns from classrooms would have the effect of

generally prohibiting license holders from carrying their handguns and so would violate S.B. 11.").

4

S.B. 11 requires institutions of higher education to "give effective notice under Section 30.06, Penal Code,

with respect to any portion of a premises on which license holders may not carry." 2015 Tex. Gen. Laws at 1723 (to

be codified at TEX. Gov'TCODE § 411.203 l(d-l)). Penal Code section 46.035(a-3) also provides that notwithstanding

subsection (a) or section 46.03(a), "a license holder commits an offense if the license holder intentionally carries a

handgun" in a location on campus where the institution has by rule prohibited the carrying of concealed weapons,

"provided the institution gives effective notice under Section 30.06." 2015 Tex. Gen. Laws at 1726; see TEX. PENAL

CODE § 30.06(b) (providing that notice under section 30.06 may be "oral or written communication"), (c)(3)(B)(iii)

(providing that a sign displayed on the property constitutes notice if it "is displayed in a conspicuous manner clearly

visible to the public").

The Honorable Brian Birdwell - Page 3 (KP-0051)

individual professors the decision as to whether possession of a concealed handgun is allowed in

the individual professor's classroom.

Your third question asks whether an institution of higher education would violate S.B. 11

if it prohibited or effectively prohibited the possession of handguns in "dormitories and/or other

college-owned or leased residential housing." Request Letter at 5. S.B. 11 expressly prohibits an

institution of higher education from adopting any rule, regulation, or other provision prohibiting

license holders from carrying handguns on campus, except in limited circumstances. 2015 Tex.

Gen. Laws at 1723 (to be codified at TEX. Gov'T CODE§ 41 l.2031(c)). One of those exceptions

is found in subsection (d), which provides that "[a]n institution of higher education ... may

establish rules, regulations, or other provisions concerning the storage of handguns in dormitories

or other residential facilities ... located on the campus of the institution." 2015 Tex. Gen. Laws

at 1723 (to be codified at TEX. Gov'T CODE § 411.2031 (d) ). This provision allows an institution

to establish reasonable requirements related to the location and manner in which handguns are

stored within its residential facilities on campus. What is reasonable in any given circumstance

will involve questions of fact. 5 If an institution placed a prohibition on handguns in the

institution's residential facilities, however, it would effectively prohibit license holders in those

facilities from carrying concealed handguns on campus, in violation of S.B. 11. 6 This is because

"rules, regulations, or other provisions concerning the storage of handguns in dormitories"

presupposes their presence in dormitories. 2015 Tex. Gen. Laws at 1723 (to be codified at TEX.

Gov'T CODE § 41 l.203l(d)) (emphasis added); see BLACK'S LAW DICTIONARY (10th ed. 2014)

(defining "storage" to mean "[t]he act of putting something away for ,future use; esp., the keeping

or plaCing of articles in a place of safekeeping, such as a warehouse or depository").

Your fourth question asks whether an institution of higher education would violate S.B. 11

if it temporarily prohibited the carrying of handguns by license holders on either "all or most of

the campus" or, alternatively, "on certain portions of the campus." Request Letter at 5. The

distribution and notice requirements discussed above suggest that the Legislature did not intend to

allow frequent, temporary restrictions on the carrying of concealed handguns. S.B. 11 does,

however, allow a president or officer to "amend the provisions as necessary for campus safety,"

and to consider "specific safety considerations, and the uniqueness of the campus environment."

. 2015 Tex. Gen. Laws at 1723 (to be codified at TEX. Gov'T CODE§ 411.203 l(d-1)). Pursuant to

this language, a court could conclude that occasional, reasonable temporary restrictions that are

prominently posted on the institution's website clearly notify license holders of the restrictions,

and do not amount to a general prohibition on the carrying of concealed handguns on campus.

Your fifth question asks whether a concealed handgun licensee has "standing to bring an

action" if the licensee reasonably believes that the institution "has exceeded its authority ... , or

that it has taken regulatory action without meeting the procedural requirements" under S.B. 11.

Request Letter at 5. While sovereign immunity protects the state from lawsuits for money

5

See Campus Carry Policy Working Group Final Report, supra note 3, at 21 (establishing restrictions for gun

safes used by license holders).

6See id. at 20-21 ("With three exceptions, the concealed carry of handguns should be prohibited in all on-

campus residence halls.").

The Honorable Brian Birdwell - Page 4 (KP-0051)

damages, "suits to require state officials to comply with statutory or constitutional provisions are

not prohibited by sovereign immunity." City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex.

2009). "Private parties may seek declaratory relief against state officials who allegedly act without

legal or statutory authority." Tex. Nat. Res. Conservation Comm 'n v. IT-Davy, 74 S.W.3d 849,

855 (Tex. 2002). Thus, an individual whose legal rights have been infringed due to a president or

chief executive officer of an institution adopting regulations that exceed the authority granted in

S.B. 11 would have standing to bring an ultra vires cause of action against the president or chief

executive officer. See Heinrich, 284 S.W.3d at 372; see also TEX. C1v. PRAC. & REM. CODE

§ 37.004(b) (providing that an individual whose legal rights are affected by a statute "may have

determined any question of construction" of tQ.at statute). The remedy for such action would be

limited to injunctive relief. See Heinrich, 284 S.W.3d at 376 ("[A] claimant who successfully

proves an ultra vires claim is entitled to prospective injunctive relief.").

Your final question asks whether the offense found in subsection 46.035(a-3) of the Penal

Code would apply to a licensee carrying a concealed handgun if an institution of higher education

has failed to comply with S.B. 11. Request Letter at 5. S.B. 11 amended section 46.035 of the

Penal Code to add subsection (a-3), which will become effective August 1, 2016. 2015 Tex. Gen.

Laws at 1726. At that time, subsection 46.035(a-3) will provide:

Notwithstanding Subsection (a) or Section 46.03(a), a license holder

commits an offense if the license holder intentionally carries a

concealed handgun on a portion of a premises located on the campus

of an institution of higher education in this state on which the

carrying of a concealed handgun is prohibited by rules, regulations,

or other provisions established under Section 411.2031 (d-1 ),

Government Code, provided the institution gives effective notice

under Section 30.06 with respect to that portion.

Id. (to be codified at TEX. PENAL CODE § 46.035(a-3)). 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." Tex. Dep 't ofState Health Servs. v. Balquinta, 429 S.W.3d 726,

751 (Tex. App.-Austin 2014, no pet.). 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).

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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.

Very truly yours,

KEN PAXTON

Attorney General of Texas

The Honorable Brian Birdwell - Page 6 (KP-0051)

CHARLES E. ROY

First Assistant Attorney General

BRANTLEY STARR

Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER

Chair, Opinion Committee