DAN MORALES

AlTORX’ Ey tENEaAl. 

## @ffice of the Qttotnep @eneraI &State of Cexas
August 3q 1995
HonorableRodney Ellis chair lntergovemmentalRelations Texas State Senate P.O. Box 12068 Austin,Texas 78711 Opinion No. DM-363

Re: Whetha the recently enacted concealed handgun law, Senate Bii 60, partiadarly the provision to be cod&d as V.T.C.S. article 4413(29ee), section 32, permits a business owner or opa-ator .to post notices prohiiig license holda-s caqing concealed handguns f?om the pmnises Of the business, and related questions (RQ-821)

DearsenatorEk

You ask several questions about the wnded handgunlaw, Senate Bg 60, which
was mcdy enacted by the Seveaty-fbuth Legislature. See Act of May 16,1995,74th Lq., RS., ch. 229.1995 To; Sess. Law Sav. 1998. Saute Bii 60 establishes an exkmve and detailed qulatory scheme, which will be codified as V.T.C.S. article 4413(29ee), whatby a person may apply to the Dcparmrentof Public safety for a licutse tocarryrconceakdhandgun. &ekf.~l,at1998. Youaskseveralquestionsaboutthe rights Of such license holdas to cany concealed hand- and the rights of bus&as
ownas and opaators to exclude license holders carrying concealed handguns tirn their premises.

Pii you ask, r)oes Senate Bii 60 give the holder of a concealed [handgrm license] the afhmive right to cany a concealed [handgun] anywhere [he or she chooses]? Exactly what are the restrictions?” Senate Bill 60 does not contain a provision which expressly delineatesthe rights of a kense holder nor does it expressly provide that
a licenseholder may carry a conceakd handgunwhereve-r he or she chooses. On the other hand, it does amend the Penal Code provisions regarding the unlati-canying of weapons. Section 46.02(a) of the Penal Code generallyprotides,that a person commitsac offense if he or she car&s a handgun or other prohibited weapon. An offense under section 46.02 is a class A misdemeanor, id. 8 46.02(e). unless it is committed on “any premiseskensedorissuedapermit... for the sale of alcoholicbeverages,”in which case it is a third degree felony, id. 6 46.02(f); see also i&i note 1 (disaking recently enacted Penal Code $46.11). Subsection (b) provides various defenses to prosecution under sub&on (a). Senate Bill 60 adds subsection(b)(7), whichprovidesthat it is a defenseto prosation under subsection (b) if the p-n was “carr$ng a concealed handgun and a valid license issued under Article 4413(29ee).

. . to carty a concealed handgun of theHonorableRodney Ellis - Page 2 @M-363)

same category as the handgunthe person is carrying.” Act of May 16, 1995, 74th Leg., RS.. ch. 229, 5 2. 1995 Tex. Sess. Law Serv. 1998.2013. Thus, Senate Bill 60 excepts licenseholdersfrom the genera)prohibition against carryinghandguns.

Senate Bill 60 also clearlyprovides that a licenseholder is not petmitted to carry a concealed handgun in certain places. Section 46.03 of the Penal Code specitically prohibits the carrying of a handgun (or other prohibitedweapon) in certain places. An offense under section 46.03 is a third degree felony. Pet+ Code 8 46.03(g). Senate Bill 60 renumbers subsection (r) of section 46.03 as subsection(g) and inserts new language into subsection (f) providing that it is not a defense to prosecution under section 46.03 thattheaaorpossesseda~~~waslicensedtocarryaconcealedhandgununder article 4413(29ee). Act of May 16, 1995.74th Leg.. RS.. cb. 229. § 3. 1995 Tex. Sess. Law Serv. 1998.2013. Section46.03 prohibitsthe carrying of a handgun

(1) on the physical premises of a school or educational insdtution, any grounds or building on which an actkity sponsored by a school or educational instiition is being conduU&1 or a passenger transportation vehicle of a school or educational institution, whether the schcol or educationalinstitutionis public or private. mless pursuant to written regulations or written lluthonzaton of the institution; (2) on the premises of a pollingplace on the day of an election
or whileearly voting is in progress; (3)inanygovermnentcomtorofficeautilked~+ecour& unlesspursuanttowrittenregulaGonsorwrittenauthonzaaonofthe court; (4) on the premisesof a mcetrack or (5) into a secured area of an airport. [Footnote added.]
Act of May 27,1995,74th Leg., R.S.~ch. 260.0 42.1995 Ten Sess. Law SW. 2207. 2490. Thus, it is clear from Senate Bill 60 that a licenseholder is not permittedto carry a concealed handgunin the foregoingplaces.

‘ The language “any grmn& 01 building en which an activity @ona’cd by B schcol or edacationslinstitution

is being a&W was addedto section46.03 by the Sev%nty-fomth Legistature in SenateBill 1. Set-Act of May27, J995.74th Leg., KS., ch. 260.@ 42,86 (actetfective immediately accept ss o(henrricprovided). 1995 Tex. !ks. Law Serv. 2207,249O. 2505. Senate Bii 1 also added s&on 46.1I to the Penal Code,which provides thal the pcnakyfor mostot%nses muler chapter 46 of the Peaal Code “is increased to ~the punishmentprescribed

for the next highest category of sense” ifit is shown thattie actor

committed

the offeosewithin s weapon-free schoolzone. Id. 0 43. at 2490-91.

p. 1957HonorableRodney Ellis - Page 3 @M-363)

In addition, SenateBii 60 adds section 46.035 to the Penal Code. AU of May 16, 1995.74thLeg.. RS.. ch. 229.p4.1995 Tex. Sess. Law Serv. 1998.2013-14. Subsettion (b) of section 46.035 provides that a license holder commits an offense if he or she intentionaUy,

knowingly, or recklessly carries a handgun under the authority of article 4413(29ee)in certain places.2 Such conduct is prohibited

(1) on the premises of a business that has a permit or license issued under Chapter2528.32, or 69. AlcoholicBeverage Code, if the businessderives 51 percent or more of its incomefrom the sale of alcoholic beveragesfor on-premisesconsumption; (2) on the premises where a high schooL collegiate. or professional sporting event or htterscholastic event is taking place, unlessthe licenseholder is a participantin the event and a handgunis used in the event; (3) on the pmises of a correctionalihcilim (4) on the premises of a hospital licensed under Chapter 241, HcalthandSafayCodc,orontheprrmisesofarmrsingbome licensed under Chapter 242. Health and Safq Code, unless the license holder has written authorization of the hospital or nursing home admimstration,

as appropriate; (5) inanamusementpark3;or (6) on the papises of a church, synagogue, or other established place of religiousworship. [Footnote added.]

23hcclinll (a)cf seelicn

46.035 also govans lhenlmmer inwhiehaliwmeholderrrmycmya llandgtm. 1tpmvidgchatrliccnscholdercarryingrhand~mda~ruthoritydrrticle~l309a) eommttsannffenseifhccrshcintentionauyfailsmeonceallhehandgulL Iltsrdefensemprosecolion ~~~(a)irthC~dirpl~theh-trdaunlmdaciraunslanccsin~~horcbcwoutd havebeenjmitiedintheweofdeadlyfotc.eunderchaptcr9dthePenalCodc Fmlalcode~46.03xll). ~~46.035(d)pmvides~aliccnsebol~wmmilsmoffcnscifhcorrhc~rbandgununder the authority

of section 4413(29ee)

while intoxkated.
%eIeml-sm useme park” is defined by F’enal code section

46.035(f)(l) 8s follows: apamanuuiaQororoutdoortacitityorparlrwhercamusemcntrider~ ovailableforurebyth~~ctba(klocatedinImuntywithapopJationof morcthanonemiltion,~~atlcad7Sacrrrinwtaceuca.isendoscd with aaes5 only thruugh

e0nUulb.lentries.is ripen for opxation morethan 120 daysin each calendar

year.and has security

guardson the prendstsat all times. The term does not include any public or privatedfiveway, stree& sidewalk or walkmy, parking

lol, puking garage.,

orother parking atea. Act ofMay 16,1995,74th Leg.,KS., ch. 229.8 4.1995 Tex. Sess. Law Serv. 199% 2014.

p. 1958HonorableRodney Ellis - Page 4 (UM-363)

Id. In addition, subsection(c) of section 46.035 provides that a licenseholdercommitsan &JLW if he or she intentionally,knowingly. or recklessly carries a handgun under the U~~OI’@ of article4413(29ee) at any meeting of a governmentalentity. Subsection(g) of section 46.035 providesthat it is a class A misdemeanor to carry a concealedhandgunat the foregoingplaces, with the exceptionofthe premisesof businesses that have permitsto SCU alcoholicbeverages and correctional facilities. Canying a concealedhandgun on the latter two types of premises constitutes a third degree felony. See uLr0supra note 1 (discussing

recently enactedPenal Code 0 46.11).

The term “premises”

as used in section 46.035 “means a buildingor a portion of a building. The term does not include any public or private driveway, street, sidewalkor Walkway, parking lo&

parkinggarage, or other parking area.” Penal Code 5 46.035(f)(3k
see u&o id. 0 46.035(f)(l) (providing that the term “amusementpark” does not include

“any public or private driveway, street, sidewalkor walkway,parking lot, parking garage, or other parking area. “). This detinition of “premises”was added after a witness testified in committee hearings on Senate Bii 60 that case law defmes “premises” broadly, to include parking lots, driveways, and land adjacent to a building. Hearings on S.B. 60 Before the House Comm. on Public Safbty, 74th Leg.. RS. (March 21. 1995) (testimony of Charles Cotten) (tape avaiile f?om House Video/Audio Services Office). He was concaaed that an individual who went Som~tplace

where concealedm were prohibited would commit a crime by driving into the driveway. Id He felt that the legislature intendedthatMindivi~cwldleavehisguninthcuuwhenheorshewcntinsosucha building. Id Thus, while section 46.035 prohibits the carrying of a handgun at the foregoing places, it does not prohibit the carrying of a handgun in the driveway. street, sidewalk or walkway, parkinglot, parking garage, or other parking area of a businessthat sells alcoholic beverage+ a high school, collegiate, or professional sporting event or intertxholastic evaa, comctional hility, hospital or nursing home, amusementpark, or church, synagogue,or other established place of religiousworship.4

Your next questions arise from the provision of Senate Bill 60 which enacts section 32 of article 4413(29ee) as follows:

‘As lhc witncis slstcd,the term“pmmises” is osuaIly definedmore

broadly to includenc4only a buildingb\ltIllsothe~olOrlandunda(heconirolofthebusinepowneroruponwhiehche~~~ bxated. See, cg., J.B. Adwtising, Inc. Y. ,Srgn Ed. o/Appols. 883 S.W.2d U3, U7 (-Rx. App.- EasUaad 1994, writ denied);Ako. Bev. Code p 11.49 ‘ (defining “premises”

for pmpca of Alcoholic Beamage Code); AttorneyGeneralOpinion H-22 (1973) 8t 3. Although the legislaturegave term >mmises” 8 different

meaning for pmposesof section46.035. as discus& below we believethat Senate Bill 60 does not affectthe rightsofa primteproperty owner10pmhiit the carrying of handgunson their private properly. Thiscould includeprivately owned drkway$ star& sidewalksor w&ways, paclring lots, parkinggarages,and otherparking areas. For this rracon,conductwhich is not an offense tmder section 46.035 of the Penal Codebecauseit occurs al 8 pke excludedfrom the definitionof the term

“pm&es”may

beanoffcnsc

under section30.05 of the Penal code. See in/a pages5-9.

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This article does not prevent or otherwise limit the right of a publicor private employer to prohibitpersonswho are licensedunder thk article from carryinga conceakd handgunon the premises of the business.
Act of May 14 1995. 74th Leg., RS., ch. 229, Q 1, 1995 Tex. Sess. Law Serv. 1998, 2012. YOU

ash whether this provision gives business owners and operators the right to post notices prohibitingpersons 6om carrying concealedhandgunson the premisesof the btt.hes.~, or whether it is limitedto permittingemployersto restrict their employeesfrom canying conceakd handgunson the premises. You also ask, “Does this bii prevent any business owner [or] operator from regulating the canyhtg of conceakd [handguns] on the

. . . premises [ofthe owner’ sor operator’ sbusiness]?”

On its face, the intent of section 32 is ambiguous. While it refers to an

“empkyer~”it uses the term ‘person” rather than the term employee. Thus, it is not dear dether the purpose of section 32 is to permit all businessesowners and operators, orjust employers, to knit all persons, or just employees, from carrying concealed handguns on the premises of their businesses. As explained below, the legislativehistory of SenateBii 60 suggests that section 32 is intended to apply only to the employer-employee mktkn&ip. We beJim it is also -clear from the kgisktive history of Senate Bii 60, however, that the kgiskture did not intend the act to Prechtde private propetty owners from exckding license.holders carrying concealed handguns from their premises under certain circumstances

regardkss of their status as employeesor nonemployees.

Before turning to the kgkktive history of Senate Bill 60, ‘ we begin our analysk wahabrief~onofthekw~gtherightsofpropatyownentoexclude others. As a general mattes, ‘ [t]he power to excludehas tradiionsJly been consideredone of the most treasured strands in an owner’ s bundle of property rights.” Loretio v. Teleprompter

Manhattan CAlVGxp.., 458 U.S. 419,43536 (1982) (citingZ&r&r Aernta
v. United Dares, 444 U.S. 164, 179-80 (1979); ,Restatement of Property 8 7 (1936)).

“‘ At common law, proprietors of private entetprises such as .places of amusement and entertainment can admit or excludewhomsoeverthey please, and their common-kw right continues until. changed by legislative enactment. ‘” Bred& v. Be&h Purk Ltd. Partner&p, 617 N.E.Zd 1096.1097 (Ohio 1993) (quotingFletcher v. ConeyZskznd, Inc., 134 N.E.Zd 371 (1956)). “Nothing is more ekmentary than [the] right [of) a private corporation to admit or exclude any persons it pleases from its private property, absent
some definite legal compulsion to the contrary.” Martin v. Monmouth Park Jockey CZub, 145 F. Supp. 439 (D.N.J. 1956). Texas cases are in accord. Terrell WellsSwimming Pool v. Rodriguez, 182 S.W.Zd824, (Tex. Civ. App.-San Antonio 1944. no writ) (“The law in this State is well settled that in the absence of Cii Rights Legislation to the contrary the proprietor of a place of amusementwhich is privately operated can refuse to sell a ticket to and msy thereby exclude any person he desires from the use of his facilities for any reason sufficientto him, or for no reason whatever. “);Jordan v. Conch0 ? ‘heutres, Inc., 160 S.WSd 275,276 (Tex. Civ. App.-El Paso 1941, no writ) (“Theatre businessis a

p. 1960HonorableRodney Ellis - Page 6 @M-363)

private business, subject to such restrictions as the legislative authority may impose; it
owes no public dury; it is not compelled to admit any who may apply, but may deny admission to any it desires. “).

The principlethat a property owner may excludepersons from his or her premises is tmbodkd in the Texas criminal trespass statute, section 30.05 of the Penal Code, which provides as foUows:

A person commitsan offenseif he enters or remains on property or in a buildingof anotherwithout effective consent and he: (1) had notice that the entry was forbiddm; or (2) receivednotice to depart but failedto do so. An offense under section 30.05 is generally a class B misdemeanor but is a class A misdemeanorif “the actor carries a deadly weapon on or about his person during the commission

of the offense.” Penal Code 8 30.05(d).

For purposes of this statute, “notice” includes“oral or written rxxmmmication by the omer or someonewith apparentauthority to act for the owner,” id. 5 30.05(b)(2)(A), and -a sign or signs posted on the property or at the entrance to the building reasonably likely to come to the attention of brtruders, indic&ng that entry is fotbidda” id. # 30.05(b)(2)(C). ‘Effective consent” means %onsent by a person legally authorized to act fbr the ownerw Id. 4 1.07(19). Y.hvt& means a person who, in the case of real property, “has title to the prom, possessionof the property, whether lawrid or not. or a greater right to posse&on of the property than the actor.” Id. 8 1.07(35)(A). To be an uo~ under this provision, one need not possess title to the property but must merely have a greater right to possession of the property than the actor. See, e.g., GoZZinger v. Saute, 834 S.W.2d 553, 557 (Tex. Cii. App.-Houston [14th Dist.] 1992, no writ) (employeewho was in charge of operating employer’ sficilities was owner of Premkes for purposes of criminaltrespass statute); Bustillos v. StWe, 832 S.W.Zd668,672 (Tex. Cii. App.-El Paso 1992, writ refd) (building managerin actual possessionof the property and who had greater right of possession than protesters was owner of buildingfor purposes of crimhml trespass statute). Thus, a business owner or operator who does not possess title to the business premises would still generally qualify as an “owner” under the cdminal trespass statute. Clearly, under Texas law as it existed prior to the passage of Senate Bii 60, a business owner or operator could Sle a criminalcomplaint against a person who came on to the business premises contrary to the terms of a posted notice. The question we must next consider is the extent to which Senate Bill 60 is intendedto change existing law.

The language in section 32 was not in Senate Bill 60 as introduced. See S.B 60 74th Leg., R.S. 29 (1995) (as introduced) (copy on file at Texas Legislative Reference Library). Rather, Senate Bill 60 as introduced contained a limited list of places where

p. 1961HonorableRodney Ellis - Page 7 @M-363)

licenseholderswere expresslyprohiied from carryingconcealedhandgunsto be cod&d in section 13 ofartide 4413(29ee). Id. at 18. The wmmittee substitute for SenateBii 60 added the fogowingplace to that list: “privatelyowned premises wmmon~y used by the public, ifthe owner of the premisesprominently d&plays at each entranceto the premises
a noti= that it is unlawrirl to carry a handgunon the premises.” C.S.S.B. 74th Leg., RS., 60.8 1, (1995). At the Senate Criminal JusticeCommittee

hearing Senator Pattersoh the sponsor of the bii testified as follows: Any person can prohibit somwne from carrying on their residence premises-their businesspl-mks-w that is a right they already have in law, by V&UC

of privatepropertyrights
He indicated that the committee substitute was hrtendedto retlect existing kw, with the addition of the posting requirementin the case of privately owned premisea commonly used by the public. Hearings on S.B. 60, Senate Criminal Justice Comm., 74th Leg. (Februay 28, 1995) (testimony of Senator Patterson) (tape availablefrom Senate Staff services oftiw).

Section 13 was deleted in its entirety fromthe committee substitute for Senate Bill 60 on the Senatefloor. S.J. 0FTM, 74th Leg., RS. 597 (1995). It was replaced with a provision adding sectioa 46.035 to the Penal Code. That amendment set tbrth a list of places & a license bolder would be prohibited corn carrying a handgun, hrcluding

‘privately owned premises commonly used by the public, if the owner of the premks prominanlydisplays~S~entrancctothepranisesrnotice~itis~~tocarrya handgun on the pmmises.” See S.B. 60.74th Leg., RS.. 8 4, at 37 (1995) (as engrossed) (copyon6lewithTexasLegiUveRef~Lii). Asnotedabove,anoffenseunder this provision is gencdy a class A misdemeanor. Senator Brown exphrinedthat the purpose of this amendmentwas to coordinate the list of prohibited places with the Penal Code. Debate on S.B. 60 on the Floor of the Senate, 74th Leg. RS.. (h4arch 15. 1995) (testimony of Senator Brown regarding tloor amendment no. 6) (tape available from senate staffstices Office).

The House Committee on Public Safkty deleted the provision which would have been codiied in section 46.035 of the Penal Code making it a class A misdemeanor to carry a concealed handgun on posted “privately owned premises commonly used by the public” and added the “rights of employers”provision that is now wdiied as se&on 32 of article 4413(29ee) in the house committee substitute for Senate Bill 60. Representative Allen, a house sponsor of Senate Bill 60, explained that the latter provision “provides that nothing in this act shall be construed or interpretedas preventing or otherwise limitingthe right of any private or public employer from lawfully barring license holders from carrying concealed handgunson their own premises.” Hearingson H.B. 72 and S.B. 60 Before the House Corn. on Public Safety, 74th Leg., RS. (April 4, 1995) (testimony of RepresentativeAllen) (tape availablethrough House Video/Audio Services Office);

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The diizmes betweenthe senateversion of SenateBill 60, wntsining the Penal Code provision regarding “privately owned premiseswmmonly used by the public,” and the house version of the bii wntainhrg the “rights of employers” provision. were reconciled in wnferenrc~ committee. With respect to the latter provision, the wnference committee discussion reveals that the legislators thought that employers had the right under acisting law to preclude employees from carrying handguns on their business premises, but that the provision had been included anyway to satisfy the wncerns of certain employers. Representative Carter, for example, explained that the Legislative Council had opined that although an employerhad the right to prohibitan employeet+om carrying a handgun on the premises of the businessunder existing law, “there was some gray area in there, so this isjust an a&native statementthat an employer,without doubt,
can tell his employeesthat they can’ t carry on the premises.” ConferenceCommitteeon Senate Bii 60,74th Leg. RS. (May 7.1995) (tape availablefrom Senate St& Services Oftice). On the basis of this evidence of legislative intent, we ~wnclude

that section 32 is intendedto apply only to the.employer-employee relationship.

The provision in the senate version of Senate Bill 60 regard@ “privately owned premiseswmmonly used by the public,”was the topic of extensive discussionlater in the wnfbnce wnnnittee. RepresentativeAllenexplained that this provisionwas deliitely omitted from the House version [the house wrmnittee substitute for SenateBill~601 for the following‘reason[:]If the sign is posted in acwrdanw with other provisions in the bill, in the Senate Bill it is enforced by stand-alone, Class A misdemeanor simply for the fact of walkinginto that prohii[edj place. In the House version ~prohibi~placeunotlisted,butifyoupostasigntheeffedof existing law is that you trespass, which is a Ciass B misdemeanor

. . . .The House version ri] intended to give you the opportunity to inadvertently enter a place if a sign had fallen or the posted notice was not visible. The Senate version does not contain such a provision.

. . . Under the House provisionyou would always have, if you had the sign up, a Class B misdemeanor...under uiminaltrespass.

. . . . mf a person posts a sign that says no one.

. . is allowedto enter with a weapon, and you.

. . violate that person’ s wishes,

. . . then you’ ve committed a trespass. Conference Comm. on S.B. 60,74th Leg., RS. 35-36 (May 7. 1995) (transcript available through Senate Staff Services Office). The wnference wmmittee voted to delete the senate provision from the bill. Id. at 37-38.

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From the foregoing discussion. we conclude that the legislature deleted the provision in the senate veraion of Senate Bill 60 regarding “privitely owned prem& commonfy

used by the public”~because the legislaturepreferredfor the cuminal trespass statute. with its @kit notice requirement and separate system of penalties, to apply. Thus, even though the legislatureomitted the senate provisionregarding“privately owned premises commonly used by the public,” the legislaturevery clearly intended to permit private property owners, including business owners and operators, to exclude license holders carrying wncealed handgunsfrom their premises unda existing law, namely the aiminal trespass statute in the Penal Code.

In answer to your specific question, although section 32 applies only to the employ~-employee relationship, Senate Bill 60 does not prevent a business owner or operator from excludingpersons, includingboth employees and nonemployees,carrying wncded handguns. Under section 30.05 of the Penal Code, any person, inch&g a license holder, who enters or rem&s on property or in a buildingof **~0th~** canying a wncealed handgun without effbctive consent to carry and who has had notice that concealed handguns am prohiied commits a crhnhA offense. ’ ,Senate Big 60 is not intended to and does not permit a license holder to carry a wncealed handgun on the premisesof a private businesswntrary to notice as defined by the crhniwl trespass statute prohibiting

the carrying of a wncealed handgun

We believethat the above diion also addressesyour next question: “Ifthe bill ~prohiiauch,doesitprovideanyspeci6crq&mwtathatthebuaiwss owner/operator must wmply with in **orda** to restrict [a ihxnse holder] from canying concealed [handguns] on [the owner’ s or operator’ s] pmmises?” We would tbrther note that although Senate Big 60 does not set forth any specificrequirementsthat a busmess
owner or operator must comply within order to restrict a license holder from carrying wncealed handgunson the premises of the business,we believethat the businessowner or operator must provide notice, as defined by the criminaltrespass statute, that wncealed handguns ‘ areprohibited. Given that a business owner or operator should not be able to ~nthataperroniscarryingawn~edhandgufi,makingoralcommunication impractical,a posted sign would be the most effective notice.

We would also stress that section 31. of article 4413(29ee) expressly requires a business that has a permit or license under **chapter** 25, 28, 32, or 69 of the Alcoholic Beverage Code and that derives 51 percent or more of its income from the sale of alcoholic beverages for on-premises consumption to display a notice at each of its entrances that it is unlawful to carry a handgun on the premises. See V.T.C.S. art. 413(29ee), 5 31(a), (c). This requirement also applies to a hospital licensed unde-r

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chspter 241 of the Health and Safety Code and a nursinghome licensed under **ChaptK** 242 ofthe Health and SafbtyCode. Id. 0 31(b), (c).6

Next YOU ask, wfr business **OWnK/O~Or** can restrict the carrying of concealed [handgum] on thepr] premises, what [type of) authority do they have to insure wmpiiice7” In a related question, you ask about the potential tiabiity of a business
owner or operator Vor removing somwne for non-compliance.” As is clear from the above discussion, a business owner or operator can insure wmpliice through enforcement of the criminaltrespass statute by reporting the trespass to the proper law enforcementauthorities and tiling a criminsl complaint agsinst an aheged trespasser. A brief discussion of business owners ’ and operators ’ other possible options and the potentialliabilityinherentin those options follows7

Article 14.01(a) of the Code of Criminsl Procedure permits private citir.ensto make arrests only if the offense is classed as a felony or as an offense against the public peaces Criminaltrespassis~rsdthesaclasEAoradassBmisdamanor,sce Penal Code 5 30.05(d), and thus is not classed as a felony. Nor is crhninaltrespass in and. of itself a breach of the peace. He&b v. Byrd, 175 S.W.Zd 214. 216-17 vex. 1943) (Trespassing is not a felony or a breach of the peace. It is not one of those offensesfor which the s&Me defining it gives the peace officerthe tight to arrest the **offmd~** without warrant. “). Itmay,howewr,beabreachofthepeacetodisplayahandgunincatain ckmstances. See, eg., Bell v. Stafe, 256 S.W.2d 108 (Tar Crim. App. 1953) (rude display of pistol may constitute breach of peace); C&es v. Srate, 256 S.W.2d 855 (Tex. Grim. App. 1953) (same); see ulso Penal Code Q 42.01(10) (providing that a person wmmits an offense if he or she intentionrdly or knowingly-displays a tirearm or other deadlyweapon in a publicplace in a rmumer calculatedto alarm”). We further note that it is a felony to carry a wncealed handgun on any of the premiseslisted in section 46.03 of the Penal Code as well as the premises of certain businessesthat have a permit to sell alcoholic ‘beveragesand wrrectional facilities, as provided by subsection (g) of section 46.035. For this resson, a business owner or operator is generallynot authorized to arrest
a mere trespasser and may be subject to liiity in tort, psrtiwlsriy an action for f&e

%nate Bill 60 pmkiirs the can@g of a concealal handgun on such pruuisss rc$srdless of w&hern&e is sausltyposted. The prohibition againsl carrying a conaaled

handgun onsuch pruntses in section 46.035(b)of the PenalCodeis not amditionedon the postingofa notice.

ISz oh fnpu page 12-13 and note 10 qarding possible liability in civil acdon in tozl for malicious prose&ion

*ticic 14.01 of tie C&e of Criminal Procedure

provides in pettinent

part: “A pcaa oEicu or any other person, may, without a warm& amst an offender,when lh6 nffensc is amnilled in his presence or tilhin hi view, if the c&me is one classedas a felony or as an offew sgainsl the ppblic pa.” code Ctim.Fmc~art.14.01(a).

p. 1965HonorableRodneyEllis - Page 11 @M-363)

meG9 for attemptingto make a citiwn’ s arrest of a mere trespasser. A business oor operator on the categories of premises listed in section 46.03, premises of catain businesses

that have a permitto sell alwholic beverages,or wmctional facilities wouldbe luIthorizadto make a citimfs arrest. See also supra note 1 (discwing recently mued Penal Code 0 46.11). A business **OWIIK** or operator might ah be authorizedto &e a citizen’ sarrest if the trespasser displaysa handgun.

We **fiutha** note that a business owner or operator who attempts to physically
remove a trespasserfromthe premisesrisks prosecutionfor criminal assault and habiity in
a civil action in tort for assault Src Penal Code 5 22.01 (setthrgforth elanents of uiminal assault);Hogenson v. Williams,542 SW&l 456,458 (Tex. Cii. App.-Texarkws 1976,
no writ) (wndua described in Penal Code 0 22.01 also wnstitutes civil tort). Under section 9.41 of the Penal Code, however, the use of force may bejustified to prevent or twninate a trespass. Section 9.41 provides in patinent part:

A~nnin~possasionofland...isjustifiedinusing force agsinst another when and IOrhe &pee #re a&r reasonably believes thefovce is immeciateb neces.ra?y to prevent or terminate theother’ strespassontheland....
Panal Code Q

9.41(a) (emphasis added). A business owner or operator who attempts to Plnlsically remove a tmspwer from the premises must use no more force than is -*y===v. The degree of force which is reason&y mcessary~varysitu&on to situation and will involve issues of f&t. Campere Wliams v. Sate, 279 s.w.2d 335 (bX. cl ’h. &S. 19%) (StOE OWIIK’S hdiCfth68 WStOlllK Was bltKfKil& with other custonws did notjustify use of force) wit% Hampfonv. Shmp, 447 S.W.2d754 (Tex. Civ. App.-Houston [lst Dii.] 1969, writ refd are.) (club OWIIK’ S physical temovd of phrimitf

from premises, although an assault, was just&d use of force where club owns had previouslybarred plaintiff .fromthe premises“to protect and maintainhis businessinterests”).

You also ask about the potential liability of a business owner or operator “for a third party who is injured by a @iwnse holder] who has failed to comply” with a notice prohibitingthe carrying of wncealed handguns on the premises. Generally, an ordinary business owner or operator, as opposed to a proprietor of a restaurant. inn, or similar establishment, is under a duty to exercise reasonable care for the safety of his or her i&tees. An occupier of business premises is not an insurer of the s&y of his or her inviwes. Gumer v. MeGin& 771 S.W.Zd 242, 246 (Tex. Cii. App.-Austin 1989, no writ). “A businessinvitor owes a duty to his business inviteesto t&e reasonable steps to

Vhe elements

of the tortof false amesl orimprisonment

arcasfollows:

(1)willful detention ofa penon; (2) against thewucnt oftheperson

detained; and (3)thedetention

is without authority oflaw. Moore’ s Inc.Y. Gorcio. 604S.W.2d

261,263 (Tot. Civ.AptvCoqmsChristi1980,. writr&d nr.e.) (c&g cases).

p. 1966HonorableRodney Ellis - Page 12 @M-363)

Protect them from intentional injuriescaused by third parties if he knows or has reason to know, from what he has observed or from past experience, that criminalacts are likelyto W. dtha gKWdly or at some particulartime.” Id. at 246; cprrifo v. h?rs, Ruehc& &CO.. 663 S.W.2d60.66 (Tex. Cii. App.-San Antonio 1983,writ refd n.r.e.) (“thereis
no duty UpOn

the owners or opaators of a shopping **CmtK**

. . . or upon merchants and shopkeepers gemAy. whose mode of operation of their premises does not attract or provide a climate for crime, to guard against criminal acts of a third party, unless they know

. . . that acts are occurringor are about to occur on the premisesthat pose imminent probability of harm to an invitee;whereupona duty of reasonablecare to protect against such act arises. “). Thus, a plaintiff in a case against an ordinary business owner or operator willhave to demonstrate that the business owner or operator knew or had reason to know that criminalacts were likely to occur in order to establish that the business
**OWIIK** or operator had a duty to take reasonable steps to protect invitees from injuries caused by third parties. By contrast, the duty of a proprietor of a restaurant, inn, or similar establishmentgenerally includes the duty to exercise reasonable care to protect patrons from assaults of third persons while on the premises. Lzrrep v. Jrrckjrrlhe-Ba*, Inc., 546 S.W.2d 116 ( ‘ I&. Cii. App.-Houston 114th Dist.] 1977.writ refd n.r.e.).

Once a duty to protect patrons from the intentional acts of third parties is established, whether a business owns or operator will be held liable for injuries to cusbmem inflicted

by third persons appearsto dependin great part upon the foreseeability of the assault and whether the business **OWIK** or operator took reasonable measuresto pmmt the assault. Ctmpre id. (res&rant was negligent for failing to demand that perpetmton of knifefight leave premisesbefore fight began and to warn plaintiffsof acts and wndiions of per~araiors before fight began) tilh Gmrpoa v. Sourh~ Tex.Beverage Co., 679 S.W.2d 739 (Tex. Civ. App.-El Paso 1984, no writ) (restaurant did not breach itsdutyofcaretobusimssimitec~owasshottodeathduringrobbayinrrstaurant where restaurant had no knowledgeof potential danger). We believe it is unlikelythat a trier of fact would conclude that a business owner or operator who posted a sign prohibitingthe carrying of concealedhandgunson the premiseswas liablefor injuriesto a patron inflicted by a Iicense holder carrying a concealed handgun. Fii it would be difficultfor a business **OWIIK** or operator to foresee an injury indictedby a person carrying
a conceuled handgun. Furthermore, we believe that a trier of fact would likely conclude that the business owner or operator had taken reasonable steps to prevent the injury by posting the sign prohibiting the carrying of wncealed weapons on the premises. Finally, you ask the following: “In the past courts have held that public officials acting on the basis of an Attorney General’ s Opinion, regardless of whether the opinion
was found to be correct or not, were immunefrom liability. Does this principleextend to private persons?” This opinion concludesthat a business owner or operator may exclude b~ense holders carrying wncealed handguns from their business premises under criminal trespass statute. If our construction of the relationshipbetween Senate Bill 60 and the criminaltrespass statute is found to be incorrect by a wurt, then the person who is alleged to have trespassed will not be wnvicted. It is ditlicult for us to imagine,however,that the

p. 1967HonorableRodney Ellis - Page 13 @M-363)

husin~.~ O&K or operator could be found civilly or criminally liable for posting his premises and reporting alleged violations of the statute to uiminal law enforcement authorities by ~filing

a &minal complaint. Thus, we are reluctant to speculate on What weight a court might give the fact that a person acted on the basis of this opinion. We do note, however, that a person could try to use this opinion to demonstrate absence of malice in a civil suit for malicious prosecution.

lo We express no opinion as to whethexa tria of fact would find such a showing meritorious.

SUMMARY

Section 46.03 of the Penal Code, as amendedby Senate Bill 60, prohibits the cariying of a concealed handgun on the physical premises of a school an education institution, or a passenger transportation vehicle of a school or an educational institution whether the school or educational institution is public or private, unIes.9 pmauantto written regu~ons or written authorization of the diMion; on the premises of a polling place on the day of an electionor While

early voting is in progress; in any governmentcourt
or otlices utilixd by the court, unless pursuantto written regulations
or written authorizatiion

of the wurt; on the ,premises ofarawtra&
or into a secured area of an airport.

Section 46.035 to the Penal Code, as added by Senate Bii 60, prohibits a person from intentionally, knowingly, or recklessly carrying a handgununder the authority ofarticle 4413(29ee): on the prcmisesofabusineuthathasapamitorlicmseissuedunda **chapta** 25. 28. 32. or 69 of the Alcoholic Beverage Code, if the business derives 51 percent or more of its income from the sale of alcoholic beverages for on-premises wnsumption; on the premises v&exe a high school, collegiate. or professional sporting event or interscholastic event is taking place, unless the license holder is a participant in the event and a handgun is used in the event; on the premises of a correctional facility; oti the -premises of a hospital licensedunder chapter 241 ,of the Health and S&y Code, or on the premises of a nursinghome licensedunder chapter 242 of the Health and Safety Code, unless the license holder has Writtenauthorization

1%~ e&menu

oftheton ofmalicious

p-tion arcas follows:

(1)the commencement

ofa criminal prosecution

a* theplaintier;

(2)thatthedefendant

iniliated orpro?arcd

theproseattion;

Q) thatthep-tion terminated in favor of theplaintiff,

(4)thattheplainlilT

was innocent (5)thatthere wasnoprobable

cause forthe proceeding.

(6) that the defendant

acted withmalice;

and (7) dams8Cs. Browning-Ferris Indusfries, Inc. Y. Lieck, 881 S.W.Zd 288 (Tex. 1994)

(modifying semnd element); Me~gcrv.Sebek,892S.W.2d20,41-41&n.10~~.App.-Houston[lstDin.]1994),pcr./orccrl.~lcd, 64U.S.L.W.

3086 (U.S. July26,1995))

(No 95-169).

p. 1968Honorable Rodney Ellis - Page 14 @M-363)

of the hospital or nursing home, as appropriate; in an amusement p* on the premises of a church, synagogue, or **0th~** established place Of Eli@US worship; or at any meeting of a governmental entity. While section 46.035 prohiits the carrying of a handgun at the foregoingplaces,it does not p&ii the carry& of a handgunin the driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area of a business that sells alcoholic beverages, a high school collegiate,or professionalsporting event or interscholasticevent, wrrectional facility, hospital or nursing home, amusementpark, or church, synagogue,or other establishedplace or

Senate Bill60 does not preclude private property owners from excluding license holders carrying concealed handguns from their premises under the crimimdtrespass statute, Penal Code, section 30.05. A license holder who enters or remains on property or in a building of another carrying a wncealed handgun without effective consent to carry and who has had notice that wncealed handgunsare prohibitedcommitsa criminal offense.

DAN MORALES

Attomej Gmerd of Texas

JGRGRVEGA Fii Assistant Attorney General

SARAHJ. SHJRLEY Chair, Gpiion Committee Prepared by Mary R Crouter Assistant Attorney General

p. 1969