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Texas - Update on Texas House Public Safety Committee Interim Hearings

Monday, March 11, 2002

On February 26th, the Texas House Public Safety Committee held a hearing on Interim Charge #1: "Study current laws relating to the possession of weapons, including but not limited to the administration of the concealed handgun laws, and interactions among state, local and federal laws concerning firearms. Make any appropriate recommendation to enhance the efficiency, consistency and clarity of the laws." The committee was particularly interested in discussing the need for any "clarifications" to Texas’ "Right To Carry" law.

NRA-ILA and TSRA representatives recapped the history of evolution of the law and highlighted recent problems with it for the committee. They pointed out that when the Texas Legislature passed the law in 1995, it repeatedly rejected gutting amendments to the bill which would have allowed state agencies and local governments to ban carrying by license holders in government buildings. Instead, the Legislature opted to specifically enumerate places where concealed handgun license holders could not lawfully carry in Penal Code Sections 46.03 & 46.035. Copies of the specific amendments and relevant sections of the code were presented to the committee.

However, NRA-ILA and TSRA also pointed out that changes made to the law in 1997, and an ensuing opinion from Attorney General John Cornyn (Opinion No. JC-0325) had highlighted a "loophole" which state agencies and local governing entities are using to ban lawful carry on their premises.

The 1997 amendments created Penal Code Section 30.06 (Trespass By Holder of License to Carry Concealed Handgun) to establish uniform posting requirements in statute. General Cornyn’s opinion stated that although local government entities have no authority under the "Right To Carry" law to promulgate rules, regulations or policies that prohibit carrying by permit holders on their premises, these entities may be considered "owners" of such public property under Texas law and may ban carrying by posting a sign in accordance with criminal trespass law. Copies of Section 30.06 of the Penal Code and General Cornyn’s opinion were also provided to the committee.

We pointed out that during the 2001 session of the Texas Legislature, Sen. Ken Armbrister & Rep. Ron Wilson carried legislation (SB 819) which sought to close this "loophole", and clarify two important points: (1) that the Legislature has exclusive authority to regulate where and when license holders may lawfully carry; and (2) that Penal Code Section 30.06 applies to private property owners only -- not governmental property.

This legislation would have ensured uniformity in Texas’ "Right to Carry" law for both license holders and law enforcement. It also would have resolved apparent conflicts between the actions of some state agencies and local government entities with both the original intent of the Legislature on this issue, and with Article 1, Section 23 of the State Constitution, which gives the Legislature the sole authority to regulate "the wearing of arms."

In preparation for the interim hearing, NRA-ILA and TSRA sent out an email alert to members requesting digital photographs of state agency and local government signs banning the carrying of handguns by license holders. We wanted assistance in documenting: (1) the extent to which state agencies and local governments are circumventing the Legislature and effectively using this "loophole" to ban carrying on premises not listed in Penal Code Sections 46.03 & 46.035; and (2) illustrate examples of such posting which does not even comply with the language required in Penal Code Section 30.06.

The lobby team was flooded with pictures from all parts of Texas. It was a confusing array of signs -- some of which followed the proper 30.06 wording, some of which didn’t even come close. Color photos were included in a large group of composite posters that were placed around the committee room and distributed on several legal size sheets of paper to the committee. It made quite a visual impact!

In addition, testimony was heard from Mr. Gene Hamm of Dallas, a lawyer who could possibly have been denied access to Dallas City Hall with his valid CHL when he went to renew his driver’s license. Testimony was also given by Kathryn Graham and John Tarsikes of San Antonio, who are both CHL instructors and licensed private investigators. They informed the committee on the difficulty in instructing their CHL students on where they may lawfully carry, created in part by improper signage throughout the city. All did an excellent job presenting their concerns to the committee.

The House Public Safety Committee will not issue a final report on its interim charges until November. We received very positive feedback from the committee and will continue working closely with them throughout the interim. However, they are only nine of 181 Senators and Representatives who need to hear from you over the balance of the year on this important issue!

There are a number of things you can do right now to lay the groundwork for passage of legislation to close the CHL "loophole" in the 2003 session of the Texas Legislature.

(1) If you are attending your local party precinct convention on the evening of Tuesday, March 12 (Primary Election Day!), please consider bringing a copy of the draft resolution below for consideration and adoption at the precinct level.

Several members have contacted NRA-ILA expressing an interest in getting a resolution supporting legislation to close the CHL "loophole" adopted as part of a State Party Platform. It is our understanding that if a resolution is adopted at a precinct convention on Tuesday evening, it will then go to the appropriate Senatorial district convention platform committee and possibly the State Platform Committee from there. Feel free to use the draft language provided below.

Draft Resolution

Subject: Close Concealed Handgun Law Loophole

Whereas the Article 1, Section 23 of the Texas Constitution states "the Legislature shall have the power, by law, to regulate the wearing of arms, with a view to prevent crime...";

And whereas Section 215.001 of the Local Government Code preempts local regulation of firearms, including the carrying of firearms by persons licensed to carry concealed handguns under Subchapter H, Chapter 411 of the Government Code;

And whereas the Legislature specifically enumerated certain locations where license holders were prohibited from carrying in Sections 46.03 & 46.035 of the Penal Code;

Therefore be it resolved that the X Party of Texas supports Legislation which closes a loophole in the current criminal trespass law (Penal Code Section 30.06) and clarifies that (1) the Legislature has the exclusive authority to regulate where and when license holders may lawfully carry; and (2) that Penal Code Section 30.06 applies to private property only -- not governmental-controlled property, with a view to maintain consistency and uniformity in Texas` concealed carry law for both license holders and law enforcement;

And be it further resolved that a copy of this resolution be sent to the Senatorial XX Convention Resolution Chairman from Precinct X of the X Party with the recommendation that it be passed and sent to the State Convention of the X Party of Texas.

(2) Contact your State Senator and your State Representative and urge them to "help close the CHL loophole."

Some of you have State Senators and Representatives who will be returning to represent you next January; others will have brand new lawmakers representing them. Many of those will be determined by the outcome of tomorrow’s March 12 primary. Once you figure out who your state lawmakers are or will be, it is important that you contact them and let them know how important this issue is to you -- a voting constituent.

Your digital photos of signs that either comply with the 30.06 requirements, or those that don’t even come close, BOTH illustrate a clear problem that needs solving: that local governments are using the criminal trespass "loophole" either accurately, or inaccurately, to circumvent the authority of the Legislature under the Texas Constitution, the Local Government Code and the Penal Code to regulate where license holders can and cannot lawfully carry. In this case, a picture IS worth a thousand words!

Send a letter or email to your state lawmakers and enclose or attach a copy of your favorite 30.06 complying or non-complying sign. Information on how to contact your state lawmakers can be found at www.senate.state.tx.us or www.house.state.tx.us or our "Write Your Reps" feature.

Model Letter

Dear Sen. or Rep. XXXXX:

As a valid concealed handgun license holder in the State of Texas, I am concerned that local governments are circumventing the authority of the Texas Legislature and using a "loophole" in the state’s criminal trespass law to ban the otherwise lawful carrying of firearms on their premises.

The Texas Constitution, the Local Government Code and the Concealed Handgun Law itself all clearly state that the Legislature -- not city or county government -- has the authority to regulate where license holders may lawfully carry. The idea of having a consistent, uniform state law is to eliminate confusion for both license holders and law enforcement.

I strongly urge you to support legislation in the 2003 session which will close this "loophole".

Sincerely,

XXX XXXXX

cc: enclosures

(3) Send a copy of this email alert to at least three other CHL holders and urge them to participate in their local party precinct convention and contact their state lawmakers as well!

The Texas Municipal League and gun control groups like Americans for Gun Safety can be expected to fight any proposal to close the CHL "loophole" tooth-and-nail next session. But the grassroots power of nearly 300,000 CHLs in the state cannot be ignored! Share this information far and wide with fellow gun owners and sportsmen.

Thank You!

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NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.