New Texas Open Carry Law: Gun Arrests and Weapons Charges in 2016

It’s only a matter of days until Texans will be able to carry firearms in a holster on their belt: the new Texas Open Carry Law goes into effect on January 1, 2016. However, lots of folk are confused about what this law will and will not allow them to do. They aren’t the only ones: law enforcement isn’t clear on things either.

And this is serious because an arrest on a Texas weapons charge is a big deal. In Texas, firearms violations can come with serious criminal time. Weapons charges here can involve illegal use or possession of handguns, knives, and other tools of violence.

For more detail on weapons charges and arrests for firearms possession, go here.

All around the state, people are asking questions and searching for answers on what they can and cannot do once the new Texas Open Carry law goes into effect. They’re confused. And they’re not the only ones.

Police departments are holding public meetings on the new gun laws; counties are seeking guidance from the Attorney General’s Office (more on that later).

What Does Texas Open Carry Gun Law Mean?

In Texas, beginning January 1, 2016, you will be able to carry your handgun on your person, in a holster of some sort. Shoulder holster, belt — that’s up to you.  Out in the open, where people can see it.  

Gun laws are still in effect insofar as to who has the right to have that gun. You still have to be 21 years old or older, for example.

And you may not be able to pack, or carry, everywhere you go. There are still going to be limits — like school classrooms and open court.

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Four New Attorney General Opinions Issued This Week On Texas Gun Laws

On Monday, Texas Attorney General Ken Paxton released four official AG Opinions that deal with the new open carry law. They are:

• KP-0047: The extent to which firearms may be excluded from buildings that contain courts, offices utilized by the courts, and other county officials;
• KP-0049: Questions regarding a notice prohibiting entry with a handgun onto certain premises under section 30.06 of the Penal Code and section 411.209 of the Government Code;
• KP-0050: Application of Penal Code sections 30.07 and 46.03, relating to the open carry of handguns, to school districts; and
• KP-0051: Authority of an institution of higher education to establish certain rules regarding the carrying of handguns on campus.

Now, an opinion issued from the state’s top prosecutor isn’t the law of the land; it’s announcing the official position of the Attorney General’s office on the issue.

The State of Texas Office of the Attorney General’s position on Texas Open Carry Law

Which does give a heads-up on what someone can expect as the law enforcement view on open carry and Texas gun laws in 2016 — until the AG Opinion gets challenged in court, for example, and booted down.  These are opinions, not court rulings or legislative statutes.

What does AG Paxton give us in these four opinions as his office’s position on open carry?  So far, we know this much:

1. Open Carry on School Grounds or College Campus

A. Anyone Can Carry Holstered Gun If No School Activities (Including Classes) But Not In Classrooms

From KP-0050: If school is not in session, and there aren’t any other school activities in progress, then a Texas gun owner is able to carry his gun in a holster on the sidewalks, driveways, and parking lots of the school district under the new Texas Open Carry law. Not okay inside the buildings and classrooms.

As summarized by AG Paxton: Subsection 46.03(a)(l) of the Penal Code prohibits handguns from places on which a school-sponsored activity is occurring, which places can include grounds otherwise excluded from the definition of “premises” such as public or private driveways, streets, sidewalks or walkways, parking lots, parking garages, or other parking areas.

B. Students Can Have Guns; Colleges Cannot Ban Concealed Carry in Classrooms or Dorms

From KP-0051: A public college or university cannot ban concealed carry in its classrooms or dorms, nor can its professors stop folk from carrying in individual classrooms. Banning handguns owned by licensed gun owners living in on-campus residential facilities cannot be done because they have a legal right now to carry in Texas.

As summarized by AG Paxton: 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.

2. Open Carry in Courthouses

A. Notices That Guns Are Not Allowed in Courtroom or Courtroom Offices

From KP-0047: It is allowed to post notices in courthouses that guns are not allowed in certain areas of the courthouse, but guns can be barred only in those areas where there is “government court or office utilized by the court.” A determination must be made by the officials as to what parts of the building are essential to the operation of the government court.

As summarized by AG Paxton: For purposes of section 411.209 of the Government Code, the phrase “premises of any government court” used in Penal Code subsection 46.03(a)(3) generally means either (1) a structure utilized by a court created by the Texas Constitution or the Legislature, or (2) a portion of such a structure. The premises of a “government court or office utilized by the court” means a government courtroom or those offices essential to the operation of the government court. The responsible authority that would notify license holders of their inability to carry on the respective premises must make the determination of which government courtrooms and offices are essential to the operation of the government court, in consultation with the government court.

B. Open Carry in Courthouses Other Than Courtrooms or Courtroom Offices

From KP-0049: A county can bar concealed handguns from part of the courthouse: i.e., the courtrooms and the offices needed for the operation of those courtrooms and offices needed for the operation of those courtrooms. If the county oversteps those boundaries, then it is a civil violation of the Government Code as an improper prohibition of handgun carry laws.

If someone carrying a concealed handgun is notified they are doing so in a legally barred section of the courthouse, they can be arrested for a misdemeanor if they refuse to exit the premises. However, if the gun owner refuses to give up his gun or to exit the building after notice by a “governmental entity,” he is within his rights if the building is not one expressly listed in Texas Penal Code Sections 46.03 or 46.035 as barring concealed guns.

As summarized by AG Paxton: Pursuant to Opinion KP-0047, it is only the courtrooms, and those offices determined to be essential to their operations, from which Hays County may prohibit concealed handguns without risk of incurring a civil penalty under section 411.209 of the Government Code. A court would likely conclude that section 411.209 of the Government Code can be implicated by a governmental entity that seeks to improperly prohibit handguns from a place where handguns may be lawfully carried through oral notice or by a written notice that does not conform to section 30.06 of the Penal Code. By the terms of section 30.06 of the Penal Code, a license holder carrying a concealed handgun who refuses, after notice by the governmental entity, to exit premises from which Penal Code sections 46.03 or 46.035 prohibit handguns commits an offense punishable as a misdemeanor. Conversely, a licensee who refuses to relinquish any concealed handgun or refuses to exit the building after being given notice by a governmental entity does not commit an offense if the building is not one from which sections 46.03 and 46.035 prohibit concealed handguns.

It’s Gonna Get Messy in 2016 – Expect More Gun Arrests

The Bottom Line:  You can open carry starting New Year’s Day. It’s your Second Amendment right to do so.

This doesn’t mean that the police aren’t going to stop you if they see you with a gun. Doesn’t mean that they aren’t going to arrest you, either on gun law violations and firearms charges or something else.  We can expect gun law arrests that are wrong and bogus in 2016, and big defense fights for the right of Texans to bare arms under the new open carry laws.

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For more about gun laws and firearms crimes, visit our resources page.  Also see Michael Lowe’s Case Results.