CONSTITUTIONAL CARRY, OPEN MEETINGS, AND THE MUNICIPAL COURTROOM PROBLEM

Five years ago, our firm wrote about the Firearm Carry Act of 2021 and predicted that constitutional carry would make Texas firearm laws even more complicated. Unfortunately, we were proven right.

In that blog, one of the questions addressed was whether a city could prohibit licensed handgun carry at an open meeting of its governing body. The issue arose from the interplay between Government Code Section 411.209, which prohibits governmental entities from wrongfully excluding handgun license holders from places they are otherwise entitled to enter, and Penal Code Section 46.03(a)(14), which generally prohibits the possession of a firearm in the room where an open meeting subject to Chapter 551 of the Government Code is being held. See Tex. Gov’t Code § 411.209; Tex. Penal Code § 46.03(a)(14).

The gears grind because Penal Code Section 46.15(b)(6) provides that Section 46.03(a)(14) does not apply to a person who holds a license to carry a handgun and carries the handgun either in a concealed manner or in a holster. In other words, the Legislature appears to have created an exception to the open-meeting prohibition for licensed carriers.

Recently, the Attorney General weighed in on the issue. In response to citizen complaints, the Attorney General sent letters to several Texas cities taking the position that licensed individuals carrying handguns in a concealed manner or openly in a holster must be allowed to attend open meetings. The Attorney General reasoned that because Penal Code Section 46.15(b)(6) renders the prohibition in Section 46.03(a)(14) inapplicable to licensed carriers, cities may not post signs or adopt policies excluding those individuals without potentially violating Government Code Section 411.209.

The result is an uneven landscape; a citizen possessing a License to Carry may attend a city council meeting while armed, while another citizen carrying the same handgun in the same room may commit an offense if relying solely on constitutional carry. See Tex. Penal Code §§ 46.03(a)(14), 46.15(b)(6).

Many Texas municipalities use their facilities for dual purposes, especially smaller municipalities with fewer resources. On one day, a room may host a city council meeting and on another, it may serve as a municipal courtroom. Courtrooms are governed by Penal Code Section 46.03(a)(3), which generally prohibits civilians from carrying firearms “on the premises of any government court or offices utilized by the court” unless authorized by written regulations or written authorization of the court.

The issue is determining exactly what constitutes the “premises” of a court. In AG Opinion KP-0047, the Attorney General concluded that the phrase generally encompasses government courtrooms and offices essential to the operation of the court, not an entire building that serves multiple purposes.

The City of Austin’s Community Court illustrates the practical problem. Because the Community Court operated within Austin City Hall, litigation arose regarding whether firearms could be prohibited throughout the building. Ultimately, on appeal, the issue of “premises” was not addressed. See Paxton v. City of Austin, No. 03-19-00501-CV, slip op. at 18 (Tex. App.—Austin July 22, 2021, pet. denied). Accordingly, municipalities are left without a definitive appellate answer as to how firearm restrictions apply in buildings that serve multiple purposes, including court functions.

Now, an even more complicated issue is rearing its ugly head: if a room is a courtroom on Wednesday morning and a council chamber on Wednesday night, when exactly does it stop being one and become the other?

The lesson for municipalities is simple: constitutional carry did not simplify Texas firearm law. Instead, it created a framework in which the legality of carrying a handgun may depend on whether the individual is licensed, whether an open meeting is occurring, whether the room is also used as a courtroom, and perhaps even whether the court is actually in session. As is often the case with Texas gun law, the closer one looks, the more moving parts one uncovers.

Please do not take this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice.