By Charles L. Cotton
Occasionally it is necessary to pass a bill not to change the law, but to clarify it so that it is not abused. This is the case with Sen. Creighton’s (R, A+) SB349 dealing with possession of certain weapons, including firearms, on school “activity grounds.” The Penal Code sections discussed below apply not only to primary and secondary schools (K through 12th grade), but to colleges and universities as well. However, the college and university prohibitions do not apply to people who hold a license to carry a handgun. Licensees are subject to the so-called campus-carry law set out in Tex. Penal Code §46.035(a-1), (a-2) & (a-3), but those sections are not relevant to SB349 or this article.
Tex. Penal Code §46.03(a)(1) makes it unlawful to carry a firearm, illegal knife, club, or prohibited weapons that are listed in Section 46.05(a) on the premises of a school, school transportation vehicles or on activity grounds when a school-sponsored activity is ongoing. “Premise” is statutorily-defined in Tex. Penal Code 46.035 (f) to be a “building or portion of a building,” so the school grounds are not off-limits for firearms, except when a school-sponsored activity is ongoing. However, pursuant to Tex. Penal Code §46.03(a)(1)(A), all schools have the authority to allow anyone to carry firearms on their campus, including in the buildings and on activity grounds when school-sponsored activities are ongoing. In short, schools have the authority to exempt anyone they wish from the prohibitions set out in Tex. Penal Code §46.03(a)(1).
In terms of school activity grounds, this Code Section has always been understood to apply only to school grounds that are located on the school’s property. Playgrounds, football, baseball and soccer fields, and athletic tracks are examples of the activity grounds at issue. Unfortunately, intellectually dishonest people have recently claimed that the scope of “activity grounds” is not limited to school property. They claim that any location in the State of Texas is an “activity ground” subject to Tex. Penal Code §46.03(a)(1), if students are present for a school-sponsored activity.
This interpretation not only ignores the express language of the Code, it would lead to absurd results. For example, if a person were having lunch at a McDonald’s and a high school bus with the school band stopped for lunch at the same location, everyone with a Texas License to Carry a Handgun (LTC) who is legally carrying a handgun would have to get up and leave the restaurant. If one were to be staying in a hotel and a school debate team checked in, LTC guests carrying self-defense handguns would not be able to eat in the hotel’s restaurant when students are present. Indeed, this strained interpretation could lead to arrest and prosecution merely for walking through the hotel lobby when a student is present. If an LTC were in a gas station refueling their car, they would have to leave or face arrest if a school bus carrying students stopped for fuel at the same location. There is virtually no end to the examples of absurd results that such an unreasonable interpretation of the phrase “school activity grounds” could bring about. SB349 clarifies existing laws to protect law-abiding Texans and to preserve legislative intent.
To understand that SB349 clarifies current Texas law rather than changing it, one need only to look at the express language in the Code. First, the entirety of Tex. Penal Code §46.03(a)(1) deals with schools, not locations off school property as are set out in Tex. Penal Code §46.03(a)(2) – (6). Further, the carrying of firearms and other weapons at off-campus school activities such as high school and collegiate sporting events and interscholastic events are prohibited by another Code Section, i.e. Tex. Penal Code §46.035(b)(2). If the overly-broad definition of “school activity grounds” were correct, then §46.035(b)(2) would be both unnecessary and redundant.
There is further proof in the Penal Code that “school activity grounds” must be located on school property in order to come within the scope of Tex. Penal Code §46.03(a)(1). This proof is found in the statutory language that grants authority to schools to allow the possession of firearms anywhere on the school campus, including activity grounds on which school-sponsored events are ongoing. (SeeTex. Penal Code §46.03(a)(1)(A).) A school would not have authority to allow people to carry firearms on property it does not own and control. For example, if a person were to allow their home and swimming pool to be used by a school baseball team for an after-season party, the school certainly would not have the legal authority to let people carry firearms into the host’s private residence. The same would be true for any private property made available by the owner for an off-campus school event.
A recent Texas Attorney General opinion (KP-0047) addressed this control and authority issue, though dealing with courts and court offices rather than schools. Tex. Penal Code §46.03(a)(3) prohibits the carrying of certain weapons “on the premises of any government court or offices utilized by the court, unless pursuant to written regulations or written authorization of the court.” As with schools, courts have the authority to allow firearms and other weapons to be carried in a location that is otherwise off-limits. This authority is granted to courts using the identical language used to authorize schools to allow weapons on activity grounds during school-sponsored events.
In 2015, SB273 passed creating Tex. Gov’t Code §411.209 that established civil fines for governmental entities and agencies that post unenforceable Tex. Penal Code §30.06 signs. On July 14th of that year, a request for an attorney general opinion was submitted asking if the prohibition on carrying handguns applied to an entire building housing courts and court offices. The Attorney General responded in the negative noting that only the areas within a building that are under the court’s control would be off-limits for handguns. The Attorney General’s opinion was based on the same authorization language found in both Tex. Penal Code §46.03(a)(1) and (3) dealing with a school’s authority, ie. “unless pursuant to written regulations or written authorization.” The AG noted that courts cannot authorize the possession of handguns outside the area of a building that they can control. The operative language in KP-0047 reads as follows:
Further,when considering the statute as a whole, under subsection46.03(a)(3)a court may issue written regulations or provide authorization concerning the allowance of firearms on its premises. SeeTEX.PENALCODE§46.03(a)(3) (establishing an offense for carrying a prohibited weapon"on the premises of any government court or offices utilized by the court, unless pursuant to written regulations or authorization of the court"). A court's authority with regard to such regulations or authorization would not include areas of the building that are beyond the operations of the court. This is some indication that the Legislature intended the prohibition in subsection 46.03(a)(3) to have a limited reach.
KP-0047, Pg. 4 (emphasis added)
The authority of a school to allow possession of firearms in otherwise prohibited areas and the authority of a court to do likewise, is based upon the identical language. The limitation of that authority is the same for a school as for a court and the analysis used in KP-0047 is on point.
SB349 clarifies current law by adding the phrase “owned by and under the control of a school or postsecondary educational institution.” In this manner, no law-abiding Texans will be at risk of arrest and prosecution for an act that is not unlawful.
SB349 addresses another area of concern. Tex. Penal Code §46.03(a)(1) uses the undefined term “educational institution” which is also being misapplied in contravention of clear legislative intent. Those who claim a school activity ground can include property not owned and under the control of a school contend that the term “educational institution” is any location where someone can learn something. Nowhere in the Education Code or elsewhere in Texas law can this strained concept be substantiated. The Legislature clearly used the term “educational institution” to mean colleges and universities. Otherwise, carrying firearms on those campuses would not have been prohibited by Tex. Penal Code §46.03(a)(1).
SB349 clarifies legislative intent and prevents this misuse of the Code by replacing “educational institution” with “postsecondary educational institution,” then defining “postsecondary educational institution” to include public and private colleges. This is accomplished by using the statutorily-defined terms “institution of higher education” for public colleges and universities and “private or independent institution of higher education” for private colleges. (SeeTex. Ed. Code §61.003 §§(8) & (15).)
By filing SB349, Sen. Creighton has done an excellent job of preserving the intent of the Legislature regarding areas of schools that are prohibited for the possession of firearms. His Bill also prevents unsuspecting law-abiding Texans from falling into a legal trap that could lead to their arrest, prosecution and the expenditure of thousands of dollars defending against bogus criminal charges. Well done Sen. Creighton, well done indeed!