Published on Thursday, 18 August 2016 14:20
On Friday, August 12th, the editorial board of the Austin American Statesman published an opinion piece titled “Don’t let Paxton make mockery of AG office; show him the exit.” The fact that the Texas version of the National Inquirer would attack a Republican officeholder is not surprising, but the Statesman’s call to allow local government officials to violate Texas law with impunity is shocking even for the Statesman.
At the heart of the article is criticism of the lawsuit filed by the AG against the City of Austin for blatant violation of Tex. Gov’t Code §411.209, “Wrongful Exclusion of a License Holder”, or what is commonly referred to as the “Fines for Signs” law. This law prohibits the posting of unenforceable Tex. Penal Code §30.06 signs on government buildings, unless those buildings are already off-limits under one of two specific Penal Code Sections. (Section 46.03 or 46.035) Before getting into the specific contents of the Editorial, let me give some historical background on the “Fines for Signs” law.
Government property off-limits by statute.
The Texas Concealed Handgun License statute was created in 1995 with the passage of Senate Bill 60. Among the provisions in SB60 was the designation of certain governmental property that would be off-limits to Texas Concealed Handgun Licensees (CHLs) carrying self-defense handguns. In 1997, HB2909 passed that, among other things, created Tex. Penal Code §30.06, Trespass by a Holder of a License to Carry a Concealed Handgun, with its clear and unambiguous requirements for property owners to follow if they wished to bar entry to their property by CHLs carrying self-defense handguns. This was made necessary by the practice of posting small generic “no guns” decals on locations that could easily go unseen by CHLs entering property.
Use of trespass laws to bar entry by CHLs carrying self-defense handguns.
As of the time the 2015 Texas Legislative Session began, Tex. Penal Code §30.06 had worked very well for property owners and CHL’s for eighteen years, with one glaring exception. Some units of local government and state agencies had taken it on themselves to ignore the intent of the Texas Legislature and make additional government-owned or leased property off-limits to CHLs carrying handguns. They had done so by posting so-called 30.06 signs on property that the Legislature chose not to make off-limits.
This was don’t in spite of the fact that, in 2003, the Legislature addressed this issue by passing SB501 that created Subsection 30.06(e) rendering unenforceable any 30.06 sign that was posted on property owned or leased by a governmental entity, unless that location was already off-limits by Tex. Penal Code §§46.03 or 46.035. So the problem was solved, right? Wrong!
Intimidation and extortion by local officials.
One would expect that cities, counties and other units of local government and state agencies would have finally honored the Legislature’s intent concerning which government-owned or leased property would be off-limits to CHLs. After all, why post a 30.06 sign that was not enforceable? Unfortunately, some intellectually dishonest local officials were more than willing to achieve by intimidation and extortion that which had been denied to them by the Legislature. Thousands of unenforceable 30.06 signs could be seen on government property and many thousands of law-abiding CHLs were fearful to enter property with their self-defense handgun even though it was perfectly legal to do so. Reports indicated that some cities had gone so far as to instruct their police officers to arrest CHLs who enter government property that is posted with an unenforceable 30.06 sign. While such reports are anecdotal and their number and/or accuracy could not be confirmed because of fear of retaliation against the whistleblowers, it was undeniable that unenforceable 30.06 signs were posted throughout the State. Some still are posted, as evidenced by the AG’s suit against the City of Austin.
2013 – First Legislative attempt to end misuse of Tex. Penal Code §30.06.
In 2013, House Bill 508 (HB508) was filed by Rep. Guillen. As initially filed, it would have made it a criminal offence (Class C Misdemeanor) for a governmental official or employee to post an unenforceable 30.06 sign, punishable for a $250 fine. Each day the sign was posted constituted a separate violation.
As was expected, the Texas Municipal League (TML) a lobbying organization funded by taxpayer dollars to lobby against taxpayers, went crazy! The very idea that governmental employees or officials could be held criminally responsible for intimidating and perhaps even arresting law-abiding citizens was repugnant to these government lobbyists. At TML’s suggestion, a committee substitute for HB508 was voted favorably from the House Criminal Jurisprudence Committee. This substitute ditched the criminal offense provisions and substituted a civil fine that called for a fine of either $1,000 or $1,500 per day, per sign for the first violation. This fine increased to $10,000 or $10,500 per day per sign for all subsequent violations. The amount of the fines was suggested by the TML lobbyist who candidly admitted that cities should not be posting unenforceable signs.
HB508 passed the House with 142 yeas, 0 nays and 1 present not voting. Every single Representative knew it was wrong to allow local officials to intimidate law-abiding CHLs. HB508 went to the Senate where it passed with 26 yeas and 5 nays, but with an amendment that ultimately proved to be a killer amendment in the House. When the House refused to concur with the Senate amendment to HB508, the Bill went to a conference committee where the killer amendment was actually made worse ultimately dooming it in the House.
2015 – Senator Campbell and Rep. Guillen try again.
During the 2015 Texas Legislative Session, Senator Campbell filed SB273 and Rep. Guillen has filed HB226 to address this ongoing problem. As with HB508 from 2013, both Bills created a civil fine rather than a criminal offense and the fines are in the same account recommended by the TML lobbyist in 2013. Sen. Campbell’s SB273 moved quickly and ultimately became law on Sept. 1, 2015.
SB273 did not reduce current government authority.
It is important to note that SB273 did not reduce any authority units of local government and state agencies previously had to control their property. Contrary to widespread false or misleading reports by the media, the new “Fines for Signs” law did not make any changes as to where a Licensee can and cannot carry their self-defense handguns. Only unenforceable 30.06 signs are impacted meaning the only opposition to SB273 came from people and organizations that wanted to be able to continue intimidating law-abiding Texans and thumb their noses at clear Legislative intent.
Procedural steps required by law
The “Fines for Signs” law has specific procedural steps that must be followed in order to force government officials to obey the law. A citizen must first give written notice to the governmental entity giving them three days to stop violating Texas law and remove the unenforceable signs. If governmental officials ignore this three-day warning, as did the City of Austin, then that citizen can file a complaint with the Attorney General. The AG will investigate the complaint and if a violation is occurring, issue a warning letter to the governmental officials giving them fifteen days to comply with the law. If they do not, then and only then can a lawsuit be filed by the AG seeking to collect the statutory fines and force dishonest local officials to abide by Texas law.
AG notice to City of Austin & subsequent lawsuit
The first complaint letter about the unlawful posting of 30.06 signs by the City of Austin was sent to the AG’s office sometime prior to March 30, 2016. The AG’s office investigated the complaint and was informed by an email from the City of Austin Legal Dept. that the sign had been removed. This was confirmed by a letter dated March 30, 2016 from the AG to the City of Austin.
Apparently, the City of Austin either misrepresented the status of the signs to the AG, or the signs were posted again after receiving the AG letter stating that the AG was “closing this complaint.” In response to a second citizen’s written complaint, the AG again investigated the City of Austin and found that it was unlawfully posting unenforceable 30.06 signs on city hall. The lame excuse is that there is a courtroom in the building. On July 5, 2016, the AG notified the City in writing that it was in violation, that the courtroom excuse has already been covered in an Attorney General Opinion KP-0047, and that suit would be filed if the City did not stop violating Texas law within fifteen days. The City ignored the statutorily-required warning and suit was filed on July 27, 2016.
Austin American Statesman article
Back to the Statesman article. It’s clear that the Statesman and its Editorial Board don’t like the “Fines for Signs” law. They don’t like the fact that the AG is enforcing Texas law as is his duty. The Statesman goes so far as to claim that, when local officials like those with the City of Austin violate Texas law, they are merely “exercising their local control.” Seriously? Since when does the Statesman believe that violating Texas law is a legitimate exercise of “local control.” If a parent decides they don’t want their son or daughter to go to school, would the Statesman defend the parent by claiming they were merely exercising “their parental control” over their children? Of course not, but since we are dealing with self-defense handguns, then the Statesman obviously believes that anyone and everyone should be able to ignore the law.
The Statesman doesn’t discuss any of the details of the law I have set out. In fact, the majority of the article is devoted to trying to divert attention away from the City of Austin’s blatant violation of Texas law by attacking Paxton’s on issues totally unrelated to the lawsuit and the “Fines for Signs” law. It points out that Paxton has been indicted, then expends precious few words pointing out that an indictment isn’t proof of guilt and that he gets his day in court.
A call for Republican leaders to force Ken Paxton out of office
The Statesman’s hypocrisy gets even worse when it calls for Republican officials, the Governor and the Lt. Governor to oust Paxton. It is interesting that the Statesman did not make the same demand of Travis County officials to remove convicted criminal and drunk driver Rosemary Lemberg as Travis County District Attorney. Unlike Paxton, she has pled guilty to drunk driving, yet refuses to resign. Thousands of innocent people are killed by drunk drivers every year, so where is the outcry from the Statesman for Travis County officials to force Lemberg out of office?
Bottom Line: Austin American Statesman calls for local officials to be allowed to violate Texas law.
I have a question for the Editorial Board. Where would you draw the line? Who would you allow to ignore any laws they don’t like? Is your “We’re Above the Law” club limited only to local officials, or does it apply to state and federal officials as well? Is your Club limited to elected officials, or can government employees join also? How about citizens? Can we pick and choose which laws we will obey and those we will ignore? Of course you will scoff at the suggestion, but this is precisely what you suggest for the City of Austin.
There is a silver lining to the Statesman editorial. No one outside of the City of Austin cares one whit about anything the Austin American Statesman publishes! Nevertheless, this editorial earns the Statesman a seat in the Hall of Shame.
Ken Paxton’s response
Ken Paxton wrote a response to the Statesman’s call to allow local officials to violate Texas law, but the Statesman refused to publish it. If you would like to read his response, CLICK HERE.