Attorney General Opinions

January 08, 2016

Legislative News

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TAC has highlighted recent Attorney General Opinions and Requests for Opinions of interest to counties.

Attorney General Opinions

KP-0047 The extent to which firearms may be excluded from buildings that contain courts, offices utilized by the courts, and other county officials. (RQ-0040-KP) Summary: 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. 

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. (RQ-0051-KP) Summary: 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.

KP-0050 Application of Penal Code sections 30.07 and 46.03, relating to the open carry of handguns, to school districts. (RQ-0054-KP) Summary: 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. 

KP-0051 Authority of an institution of higher education to establish certain rules regarding the carrying of handguns on campus. (RQ-0076-KP) Summary: 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.

KP-0052 Authority of a commissioners court, after adoption of the budget, to adopt a standing budget policy that automatically reduces the salary line item of an employee of an elected official upon the employee's departure from the position. (RQ-0033-KP) Summary: Chapter 111 of the Local Government Code does not prohibit as a matter of law the adoption of an order that automatically transfers funds to reduce compensation for a position when the position has been vacated and filled by a new employee. Whether a commissioners court may implement such an order with respect to a specific position depends on the particular circumstances, including any law that specifically governs compensation for the position.

Section 74 .104 of the Government Code does not permit a commissioners court to reduce a court coordinator's salary by automatic operation of standing commissioners court orders without a determination of reasonable compensation by the judge who selected the court coordinator.

KP-0054 Whether the common-law doctrine of incompatibility prohibits simultaneous service as a county sheriff and a member of the board of trustees of a school district. (RQ-0036-KP) Summary: A court would likely conclude that, under the facts you describe, the common-law doctrine of incompatibility does not prohibit an individual's simultaneous service as the Red River County Sheriff and as a board trustee of the Clarksville Independent School District.
 

Requests for Attorney General Opinions

 

RQ-0082-KP: The Honorable Jane Nelson, Chair, Committee on Finance, Texas State Senate, Whether a school district, municipality, or county may reduce or repeal the local option homestead exemption from the amount that was adopted for the 2014 tax year through the 2019 tax year.

RQ-0087-KP: The Honorable Carlos Omar Garcia, 79th Judicial District Attorney, Requirements for a municipality’s posting of a notice regarding the carrying of handguns.

RQ-0089-KP: The Honorable Rod Ponton, 83rd District Attorney, Whether the display of a cross with a thin blue line on a sheriff patrol vehicle violates the First Amendment to the U.S. Constitution.