Texas Open Carry Law

and Commercial Real

Estate

December 9, 2015

Rob Harlow

Jackson Walker L.L.P.

RHarlow@jw.com

713-752-4237

Let’s see what we can do to prevent this from

happening on your property

• Do you need a license to Open Carry?

Yes.

• When does Open Carry go into effect?

January 1, 2016

• Can you legally carry anywhere?

No. All of the same previous restrictions apply with a

few changes. Basically the word “concealed” was

deleted wherever it appeared before the word

“handgun”.

Texas Penal Code – Places where carrying continues to be

prohibited

• Bars - A place of business that derives 51% or more of its income from the sale or

service of alcoholic beverages for on premises consumption (may require the so-

called “51% signage”).

• Jails or prisons

• K-12 Schools and vehicle/bus or grounds of an event; educational institution

• High school, collegiate or professional sporting event (unless the license holder

is a participant in the event and a handgun is used in the event).

• Polling place - on the day of an election or while early voting is in progress.

• Racetrack

• Secured area of an airport

• Courts - In any government court or offices utilized by the court, unless pursuant to

written regulations or written authorization of the court.

• Place of worship - On the premises of a church, synagogue, or other established

place of religious worship.

• Hospital - On the premises of a hospital licensed under the Health and Safety Code.

• Nursing Facility - On the premises of a nursing home licensed under the Health and

Safety Code.

• Amusement parks - Amusement parks means a permanent indoor or outdoor facility

or park where amusement rides are available for use by the public that is located in a

county with a population of more than one million, encompasses at least 75 acres in

surface area, is enclosed with access only through controlled entries, is open for

operation more than 120 days in each calendar year, and has security guards on the

premises at all times. The term does not include any public or private driveway,

street, sidewalk or walkway, parking lot, parking garage, or other parking area.

• Governmental Meeting - regardless of whether the handgun in concealed, in the

room or rooms where a meeting of a governmental entity is held and if the meeting is

an open meeting subject to Chapter 551, Government Code.

These items still require notice or a 30.06/30.07 sign to be installed in accordance with

the statute for prohibition to be effective.

IMPORTANT DEFINITIONS

• HANDGUN - Penal Code §46.01(5) any firearm that is designed,

made, or adapted to be fired with one hand.

• PREMISES - Penal Code §46.035(f)(3)

A building or portion of building DOES NOT include any public or

private driveway, street, sidewalk, or walkway, parking lot, parking

garage, or other parking area.

There are currently 3 signs that affect concealed handgun

license (“CHL”) holders

• Penal Code 30.06 Sign – No trespassing (Concealed)

• Red Sign – 51% Alcohol

• Blue Sign – Alcohol sales

Beginning January 1, 2016 a fourth sign will go into effect

• Penal Code 30.07 Sign – No trespassing (Open)

THE “CHL RULE” Revised Texas Penal Code § 30.06 for Concealed Handguns (Effective January 1,

2016):

General Rule: A concealed handgun license holder commits a criminal offense if:

1. He/she carries a concealed handgun “on property of another without effective

consent,” TEX. PENAL CODE § 30.06(a)(1);

2. Such property is not “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 [Texas Penal Code] Section 46.03 or 46.035,” TEX. PENAL

CODE § 30.06(e);

3. He/she received notice that his/her entry on the property “with a concealed

handgun was forbidden,” TEX. PENAL CODE § 30.06(a)(2);

4. Such notice was provided by “the owner of the property or someone with

apparent authority to act for the owner,” TEX. PENAL CODE § 30.06(b); and

5. Such notice was provided “by oral or written communication,” TEX. PENAL CODE

§ 30.06(b).

The written notice issue falls under Element No. 5 above, i.e., the

“written communication” requirement. To comply with the statute, a

written notice prohibiting concealed handguns on certain premises (i.e.,

the “written communication”) must either:

1. Be on “a card or other document” that states exactly the following language:

“Pursuant to Section 30.06, Penal Code (trespass by license holder with a concealed

handgun), a person licensed under Subchapter H, Chapter 411, Government Code

(handgun licensing law), may not enter this property with a concealed handgun,” TEX.

PENAL CODE § 30.06(c)(3)(A); or

2. Be on “a sign posted on the property” that: a. states the following language: “Pursuant to Section 30.06, Penal Code (trespass by license holder with a

concealed handgun), a person licensed under Subchapter H, Chapter 411, Government Code (handgun

licensing law), may not enter this property with a concealed handgun,”

b. states such language in both English and Spanish,

c. states such language in contrasting colors with block letters at least one inch in height, and

d. is displayed in a conspicuous manner clearly visible to the public, TEX. PENAL CODE § 30.06(c)(3)(B).

PENAL CODE 30.06 CONCEALED CARRY SIGN

• PURSUANT TO SECTION 30.06, PENAL CODE (TRESPASS BY

LICENSE HOLDER TO CARRY A CONCEALED HANDGUN), A

PERSON LICENSED UNDER SUBCHAPTER H, CHAPTER 411,

GOVERNMENT CODE (HANDGUN LICENSING LAW), MAY NOT

ENTER THIS PROPERTY WITH A CONCEALED HANDGUN.

• CONFORME A LA SECCIÓN 30.06 DEL CÔDIGO PENAL

(TRASPASAR PORTANDO ARMAS DE FUEGO) PERSONAS

CON LICENCIA BAJO DEL SUB-CAPITULO H, CAPITULO 411,

CODIGO DE GOBIERNO (LEY DE PORTANDO PISTOLA

ABIERTAMENTE), NO DEBEN ENTRAR A ESTA PROPIEDAD

PORTANDO UN ARMA DE FUEGO.

OPEN CARRY RULE New Texas Penal Code § 30.07 for Open Carry Handguns (Effective January 1,

2016):

General Rule: An open carry handgun license holder commits a criminal offense if:

1. he/she openly carries a handgun “on property of another without effective

consent,” TEX. PENAL CODE § 30.07(a)(1);

2. such property is not “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 [Texas Penal Code] Section 46.03 or 46.035,” TEX. PENAL

CODE § 30.07(e);

3. he/she received notice that his/her entry on the property “[while] openly

carrying a handgun was forbidden,” TEX. PENAL CODE § 30.07(a)(2);

4. such notice was provided by “the owner of the property or someone with

apparent authority to act for the owner,” TEX. PENAL CODE § 30.07(b); and

5. such notice was provided “by oral or written communication,” TEX. PENAL CODE

§ 30.07(b).

To comply with the statute, a written notice prohibiting open carry

handguns on certain premises (i.e., the “written communication”) must

either:

1. Be on “a card or other document” that states exactly the following language:

“Pursuant to Section 30.07, Penal Code (trespass by license holder with an openly

carried handgun), a person licensed under Subchapter H, Chapter 411, Government

Code (handgun licensing law), may not enter this property with a handgun that is

carried openly,” TEX. PENAL CODE § 30.07(c)(3)(A); or

2. Be on “a sign posted on the property” that: a. states the following language: “Pursuant to Section 30.07, Penal Code (trespass by license holder with an

openly carried handgun), a person licensed under Subchapter H, Chapter 411, Government Code (handgun

licensing law), may not enter this property with a handgun that is carried openly,”

b. states such language in both English and Spanish,

c. states such language in contrasting colors with block letters at least one inch in height, and

d. is displayed in a conspicuous manner clearly visible to the public at each entrance to the property,

TEX. PENAL CODE § 30.07(c)(3)(B).

PENAL CODE 30.07 OPEN CARRY SIGN

• PURSUANT TO SECTION 30.07, PENAL CODE (TRESPASS BY

LICENSE HOLDER WITH AN OPENLY CARRIED HANDGUN), A

PERSON LICENSED UNDER SUBCHAPTER H, CHAPTER 411,

GOVERNMENT CODE (HANDGUN LICENSING LAW), MAY NOT

ENTER THIS PROPERTY WITH A HANDGUN THAT IS CARRIED

OPENLY.

• CONFORME A LA SECCIÓN 30.07 DEL CODIGO PENAL

(TRASPASAR DE PERSONA CON LICENCIA PORTAR PISTOLA

ABIERTAMENTE), PERSONAS CON LICENCIA BAJO DEL SUB-

CAPITULO H, CAPITULO 411, CODIGO DE GOBIERNO (LEY DE

PORTANDO PISTOLA ABIERTAMENTE), NO DEBEN ENTRAR A

ESTA PROPIEDAD PORTANDO PISTOLA ABIERTAMENTE.

NON-CODE SIGNAGE

ENFORCEABLE SIGNS

OTHER TRANSLATIONS

• 30.06 Sign Only……... No Conceal Carry

• 30.07 Sign Only……... No Open Carry

• Both Signs Posted…...Cannot carry Open or Concealed

• PC 30.07 goes into effect January 01, 2016

Red Sign must be posted at any place were 51% of their

revenue comes from the sale of alcohol for on-site

consumption.

Blue Sign must be posted at:

• Convenience Stores

• Grocery Stores

• Liquor Stores

• Restaurants with a Food and

Beverage certificate from TABC

• Any place where alcohol is sold

that does not fit the 51% criteria

for a Red Sign

VIOLATIONS FOR TRESPASS

• It is a Class C misdemeanor punishable by a fine not to exceed $200.

• If license holder is personally given the notice by oral communication and

refuses to leave, it becomes a Class A misdemeanor.

• Class A misdemeanor is punishable by up to a year in the county jail and/or

a $4,000 fine.

PARKING LOT RULE

Labor Code Subchapter G 52.061. Restrictions on Prohibiting

Employee Access to or Storage of Firearm or Ammunition.

• Employer may prohibit employees from carrying handguns on the

premises.

• However, an employer can’t prohibit an employee, if the employee

is a licensed gun holder, from keeping the employee’s gun and

ammunition locked in the employee’s vehicle while parked at the

employer’s place of business.

SEC. 52.062. EXCEPTIONS

Section 52.061 does not:

1. Authorize a person who holds a license to carry a concealed

handgun under Subchapter H, Chapter 411, Government Code, who

otherwise lawfully possess a firearm, or who lawfully possess

ammunition to possess a firearm or ammunition on any property

where the possession of a firearm or ammunition is prohibited by

state or federal law; or

2. Apply to:

A. A vehicle owned or leased by a public or private employer and used by an

employee in the course and scope of the employee’s employment, unless the

employee is required to transport or store a firearm in the official

discharge of the employee’s duties;

B. A school district;

C. An open-enrollment charter school, as defined by Section 5.001, Educate

Code;

D. A private school, as defined by Section 22.081, Education Code;

E. Property owned or controlled by a person, other than the employer, that is subject

to a valid, unexpired oil, gas, or other mineral lease that contains a provision

prohibiting the possession of firearms on the property; or

F. Property owned or leased by a chemical manufacturer or oil and gas refiner with an

air authorization under Chapter 382, Health and Safety Code, and on which the

primary business conducted is the manufacture, use, storage, or transportation of

hazardous, combustible, or explosive materials, except in regard to an employee

who holds a license to carry a concealed handgun under Subchapter H,

Chapter 411, Government Code, and who stores a firearm or ammunition the

employee is authorized by law to possess in a locked, privately owned motor

vehicle in a parking lot, parking garage, or other parking area the employer provides

for employees that is outside of a secured and restricted area:

1. That contains the physical plant;

2. That is not open to the public; and

3. The ingress into which is constantly monitored by security personnel.

SEC. 52.063 – IMMUNITY FROM CIVIL LIABILITY

(a) Except in cases of gross negligence, a public or private employer, or the employer's

principal, officer, director, employee, or agent, is not liable in a civil action for personal

injury, death, property damage, or any other damages resulting from or arising out of

an occurrence involving a firearm or ammunition that the employer is required to

allow on the employer's property under this subchapter.

(b) The presence of a firearm or ammunition on an employer's property under the

authority of this subchapter does not by itself constitute a failure by the employer to

provide a safe workplace.

(c) For purposes of this section, a public or private employer, or the employer's

principal, officer, director, employee, or agent, does not have a duty:

(1) to patrol, inspect, or secure:

(A) any parking lot, parking garage, or other parking

area the employer provides for employees; or

(B) any privately owned motor vehicle located in a

parking lot, parking garage, or other parking area

described by Paragraph (A); or

(2) to investigate, confirm, or determine an employee's compliance with laws

related to the ownership or possession of a firearm or ammunition or the

transportation and storage of a firearm or ammunition.

POTENTIAL SITUATIONS

#1 PROPERTY OWNER DOES NOT PROHIBIT GUNS UNDER

EITHER OPEN OR CONCEALED CARRY.

Issues:

a. Resolution is left to Tenants – therefore, could be a variety of

restrictions on property.

b. May make Tenants and invitees less comfortable.

c. No enforcement policy to develop.

#2 PROPERTY OWNER WANTS TO PROHIBIT GUNS

Issues:

a. Must post requisite signage or be prepared to provide notice

depending upon prohibition desired.

b. Need to establish and train property personnel on protocols

(i) what to do if someone enters property with gun?

- call police?

- management or security approach and enforce?

(ii) Ability to answer questions or respond to inquiries.

c. Could lack of proactive enforcement of policy lead to liability?

d. Could prohibition lead to liability?

SUGGESTIONS • Property owners should consider discussing the issue with tenants regarding

how each wants to proceed in regards to banning or permitting weapons on

site.

• Consider adopting a lease amendment that sets out the landlord and

tenants’ agreement regarding who may determine if guns, open or

concealed, will be permitted on premises.

• Property owners may wish to include a provision in their lease form which

requires the tenant to indemnify the owner against any incidents which may

occur on the property.

SUGGESTIONS (continued)

• Property owners may wish to discuss with their insurance agents the

possible impact of prohibiting handguns on the premises (or even the failure

to prohibit handguns) on the insurance coverage for the property or

business.

• Insurance provisions in leases delineating insurance requirement of tenants

must be reevaluated to insure tenant’s insurance does not have exceptions

in coverage for handgun incidents (Many secondary insurer policies have

such exceptions buried deep in the fine print).

• Property owners should consider updating the employee handbook

establishing clear guidelines for employees regarding guns on the premises.

Remember that “premises” does not include locked, personal vehicles in a

property’s parking lot, garage, or other parking area.

SAMPLE TENANT INSURANCE REQUIREMENT

PROVISION

Landlord’s Insurance Requirements of Tenant

1. Insurance Coverage To Be Provided by Tenant. These requirements (the “Insurance Requirements”) are attached as an Exhibit as part of the Lease Agreement. In the event of conflict between any of the following Insurance Requirements and any provision in the Lease Agreement, these Insurance Requirements control, amend and supplement the conflicting provision. Subject to review and revision by Landlord from time to time, in Landlord’s good faith judgment, the following insurance shall be maintained by Tenant with limits of not less than those set forth below at all times during the term of this Lease and thereafter as required. COURTESY – Charles Comiskey of Brady, Chapman, Holland & Associates, Inc.

No. Specifications Coverages, Limits and Other Requirements A. LIABILITY

1. Commercial General Liability. Tenant is to maintain commercial general liability (“CGL”) insurance and, if necessary, commercial excess insurance, issued on an Occurrence Basis meeting at least the following specifications.

1.1 Minimum Limits The limits of coverage shall not be less than the following amounts:

$5,000,000 Per Occurrence $5,000,000 General Aggregate $5,000,000 Products and Completed Operations Aggregate $5,000,000 Personal and Advertising Injury

1.2 General Aggregate A Designated Location(s) General Aggregate Limit shall be provided on ISO form CG 25 04 05 09.

1.3 Form This insurance is to be issued on the most recent reasonably available and unmodified ISO form CG 00 01 or equivalent and shall cover liability arising from use or occupancy of premises, ongoing and completed operations.

1.4 Insured Contracts Coverage shall include but not be limited to liability assumed by Tenant under the Agreement, including the tort liability of another assumed in a business contract, and shall include unmodified Separation of Insureds coverage.

1.5 Additional Insureds Additional Insured status shall be provided in favor of Landlord Parties on ISO form CG 20 11 04 13.

1.6 Personal Injury Contractual Liability

The personal injury contractual liability exclusion shall be deleted.

1.7 Primary and Noncontributory This insurance shall be endorsed to provide primary and noncontributing liability coverage by ISO CG 20 01 04 13. It is the specific intent of the parties to the Agreement that all insurance required herein shall be primary to and shall seek no contribution from any other insurance (primary, umbrella, contingent or excess) maintained by Landlord Parties, with Landlord Parties’ insurance being excess, secondary and noncontributing.

1.8 Waiver of Right of Recovery and Subrogation

Tenant agrees to waive its rights of recovery and shall cause this insurance to be endorsed to waive all rights of subrogation in favor of Landlord Parties on ISO form CG 24 04 05 09.

1.9 Notice of Cancellation This insurance shall be endorsed to provide a 30 day notice of cancellation to Landlord.

1.10 Prohibited Exclusions and Limitations

Prohibited exclusions/limitations or their equivalents include but are not limited to:

a. Amendment of Insured Contract Definition ISO CG 24 26

b. Classification or Business Description

c. Contractual Liability Limitation ISO CG 21 39

d. Endorsement modifying the Employer’s Liability exclusion or deleting the exception to it

e. “Insured vs. Insured” except Named Insured vs. Named Insured

f. Limitation of Coverage to Designated Premises or Project ISO CG 21 44

g. Punitive, Exemplary or Multiplied Damages

SAMPLE HANDBOOK POLICY

Employees are not permitted to carry (either openly or in a concealed manner) any firearms while on

the premises, while at client work locations on owner’s business, while in owner vehicles, or while

acting as an owner representative at any work-related activities, meetings, or functions. This

prohibition against the possession or carrying of firearms applies even if the employee is licensed to

carry a concealed handgun or to openly carry a handgun by the state of Texas. Texas state law

permits employees to transport and store in a safe and discrete manner a legal firearm and

ammunition in a personal vehicle while the vehicle is in the premises parking lot. This policy is

intended to comply with all applicable state laws concerning employee rights to possess and carry

firearms and shall be interpreted and enforced accordingly.

Employees are prohibited from making any statements or actions that draw attention to the presence

of a lawfully transported weapon or that threaten or intimidate other employees, clients, or visitors with

regard to the employee’s lawful possession of a weapon.

Q & A