                                          KEN PAXTON
                                      ATTORNEY GENERAL OF TEXAS




                                            August 9, 2016



The Honorable Lisa Pence                                Opinion No. KP-0108
Erath County Attorney
100 West Washington                                     Re: Whether a nonprofit entity that has
Stephenville, Texas 76401                               offices on land owned by a municipality may
                                                        restrict the licensed carrying of handguns on
                                                        the property (RQ-0097-KP)

Dear Ms. Pence:

        You explain that in -your county "at least two non-profit agencies ... have offices located
on land owned" by a city. 1 You further explain that those agencies are the only entities located on
the specific properties in question, that no governmental offices are located on the properties, and
that the city "has no authority as to the operation of the non-profit and all decisions are made by
an independent board of directors." Request Letter at 1. Given these facts you ask whether
handguns may be prohibited by a nonprofit entity when the entity's offices are located on property
owned by a city or governmental entity. Id .at 2. You base your questions on section 411.209 of
the Government Code and sections 30.06 and 30.07 of the Penal Code, and we will address each
of these provisions in tum.

         The Eighty-fourth Legislature enacted section 411.209 of the Government Code, which
prohibits state agencies and political subdivisions from providing notice that a licensed handguri
carrier is prohibited from entry to a location other than those articulated in the Penal Code:

               A state agency or a political subdivision of the state may not provide
               notice by a communication described by Section 30.06, Penal Code,
               or by any sign expressly· referring to that law or to a concealed
               handgun license, that a license holder carrying a handgun under the
               authority of this subchapter is prohibited from entering or remaining
               on a premises or other place owned or leased by the governmental
               entity unless license holders are prohibited from carrying a handgun
               on the premises or other place by Section 46.03 or 46.035, Penal
               Code.




         'Letter from Honorable Lisa Pence, Erath Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at I
(Feb. 11, 2016), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").
The Honorable Lisa Pence - Page 2               (KP-0108)



TEX. Gov'T CODE§ 411.209(a). A state agency or political subdivision found in violation of this
provision is 'liable for a civil penalty administered by the attorney general. Id. § 41 l .209(b)-(h).

         Relevant to your request, the prohibition in subsection 41 l.209(a) applies only to "a state
agency or political subdivision of the state." Id. § 41 l.209(a). Section 411.209 does not address
whether a private entity, including an independent nonprofit entity, may provide notice to license
holders that the carrying of handguns is prohibited in its offices. If a private entity is operating
jointly with a governmental entity or has been hired by the governmental entity to perform certain
governmental functions, fact questions could arise about which entity effectively posted a notice
prohibiting the carrying of guns. However, under the facts you describe, the private, nonprofit
entity appears to have an arms-length agreement to lease city property and is not otherwise
affiliated with the city. See Request Letter at 1. "As a general rule, a lessor relinquishes possession
or occupancy of the premises to the lessee." Levesque v. Wilkens, 57 S.W.3d 499, 504 (Tex.
App.-Houston [14th Dist.] 2001, no pet.). In such circumstances, section 411.209 does not apply
to a city that leases property to a nonprofit entity that provides notice that a license holder carrying
a handgun is prohibited from entry. As long as the state agency or political subdivision leasing
the property to the nonprofit entity has no control over the decision to post such notice, the state
agency or political subdivision lessor would not be the entity responsible for the posting and would
therefore not be subject to a civil penalty under section 411.209. See TEX. Gov'T CODE
§ 41 l.209(a).

        Whether sections 30.06 and 30.07 of the Penal Code make it an offense for a person
carrying a handgun to enter property leased by a nonprofit entity from a state agency or political
subdivision is a separate question. See Request Letter at 1. Subsections 30.06(a) and 30.07(a)
make it an offense for a license holder to carry a handgun, either concealed or openly, "on property
of another without effective consent," when the license holder "received notice that entry on the
property by a license holder . . . was forbidden." TEX. PENAL CODE §§ 30.06(a), .07(a).
Subsections 30.06(e) and 30.07(e) create exceptions to the application of those sections if "the
property on which the license holder ... carries a handgun is owned or leased by a governmental
entity and is not a premises or other place on which the license holder is prohibited from carrying
the handgun under Section 46.03 or 46.035." Id.§ 30.06(e); see id.§ 30.07(e). We must therefore
determine whether these exceptions to the offenses apply to property that is owned by a
governmental entity but leased to a private, nonprofit organization.

        When the Legislature enacted subsection 30.06(e), its stated focus was on local
governmental entities that were prohibiting concealed handguns from public places. See House
Research Org., Bill Analysis, Tex. S.B. 501, 78th Leg., R.S. (May 9, 2003) at 4 ("A city's ban on
concealed handguns in public buildings could make it needlessly difficult for a person lawfully
carrying a concealed handgun to perform necessary tasks such as paying a utility bill or renewing
a car registration."). Nothing in the text of the statute itself nor in the legislative history suggests
that the Legislature considered whether private entities that leased property from a governmental
entity were required to allow the carrying of handguns on the property that they lease. The fact
that the Legislature created a civil penalty in section 411.209 of the Government Code only for
state agencies and political subdivisions provides some contextual support for the idea that the
Legislature may not have intended to require private lessees of governmental property to allow
 handguns on that property. See TEX. Gov'T CODE§ 41 l.209(a).
The Honorable Lisa Pence - Page 3                     (KP-0108)



        Nevertheless, when construing statutes, courts recognize that the words the Legislature
chooses are "the surest guide to legislative intent." Fitzgerald v. Advanced Spine Fixation Sys.,
Inc., 996 S.W.2d 864, 866 (Tex. 1999). When possible, courts will discern legislative intent from
the plain meaning of the words chosen, and only when words are ambiguous will courts "resort to
rules of construction or extrinsic aids." Entergy Gulf States, Inc., 282 S.W.3d 433, 437 (Tex.
2009). The plain language of subsections 30.06(e) and 30.07(e) make an exception ifthe property
on which the license holder carries a gun "is owned or leased by a governmental entity." TEX.
PENAL CODE§§ 30.06(e), .07(e). These statutes make no exception to that exception for property
owned by a governmental entity but leased to a private entity, and to conclude that carrying a
handgun on such property is prohibited would therefore require reading language into the statute
beyond what the Legislature included. See Entergy Gulf States, Inc., 282 S.W.3d at 443 (noting
that courts "refrain from rewriting text that lawmakers chose"). Thus, a court would likely
conclude that a license holder carrying a handgun on property that is not a premises or other place
from which the license holder is prohibited from carrying under sections 46.03 or 46.035 of the
Penal Code and that is owned by a governmental entity but leased to a private entity is excepted
from the offenses in 30.06(a) and 30.07(a). 2




         2
          Such a conclusion would not necessarily preclude a private entity's claim for civil trespass. "Generally, an
owner of realty has the right to exclude all others from use of the property[.]" Severance v. Patterson, 370 S.W.3d
705, 709 (Tex. 2012). "[E]very unauthorized entry upon land of another is a trespass[,] even if no damage is done
or injury is slight." Coastal Oil & Gas Corp. v. Garza Energy Tr., 268 S.W.3d I, 12 n.36 (Tex. 2008) (quotation
marks omitted). Thus, while criminal enforcement may not be available, we find no authority that prohibits the
private entity from restricting entry onto that leased property for individuals carrying handguns.
The Honorable Lisa Pence - Page 4             (KP-0108)



                                       SUMMARY

                      Section 411.209 of the Government Code creates a civil
              penalty for a state agency or a political subdivision that provides
              notice that a license holder carrying a handgun is prohibited on
              property owned by the governmental entity unless carrying a
              handgun in such locations is expressly prohibited under the Penal
              Code. Section 411.209 applies only to a state agency or political
              subdivision of the State and does not address whether a private
              entity, including an independent nonprofit entity, may provide
              notice to license holders that the carrying of handguns is prohibited
              in the private entity's offices. As long as the state agency or political
              subdivision leasing the property to the private entity has no control
              over the decision to post such notice, the state agency or political
              subdivision lessor would not be the entity responsible for the posting
              and would therefore not be subject to a civil penalty under section
              411.209.

                      A court would likely conclude that a license holder who
              carries a handgun on property that is owned by a governmental
              entity but leased to a private entity and that is not a premises or other
              place from which the license holder is prohibited from carrying a
              handgun under sections 46.03 or 46.035 of the Penal Code is
              excepted from the offenses in subsections 30.06(a) and 30.07(a) of
              the Penal Code.

                                              Very truly yours,




                                              KEN PAXTON
                                              Attorney General of Texas



JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee
