DAN MORALES 

AlTORXtENEaAl. ’Ey 

@ffice of the Qttotnep @eneraI 

&State of Cexas 

August 3q 1995 

Honorable Rodney Ellis 

chair 

lntergovemmental Relations 

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 handgun law, 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 Dcparmrent of 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 delineates the rights of a kense holder nor does it expressly provide that 

a license holder may carry a conceakd handgun whereve-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 generally protides,that a person commits ac 

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 alcoholic beverages,” 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), which provides that it is a defense to 

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 the 
Honorable Rodney Ellis - Page 2 @M-363) 

same category as the handgun the 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 

license holders from the genera) prohibition against carrying handguns. 

Senate Bill 60 also clearly provides that a license holder 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 prohibited weapon) 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. Section 46.03 prohibits the 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 educational institution is public or 

private. mless pursuant to written regulations or written 

lluthonzaton of the institution; 

(2) on the premises of a polling place on the day of an election 

or while early voting is in progress; 

(3)inanygovermnentcomtorofficeautilked~+ecour& 

unlesspursuanttowrittenregulaGonsorwrittenauthonzaaonofthe 

court; 

(4) on the premises of 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 license holder is not permitted to carry a 

concealed handgun in the foregoing places. 

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

edacationsl institution is being a&W was added to section 46.03 by the Sev%nty-fomth Legistature 

in Senate Bill 1. Set- Act of May 27, J995.74th Leg., KS., ch. 260.@ 42,86 (act etfective immediately 

accept ss o(henrric provided). 1995 Tex. !ks. Law Serv. 2207,249O. 2505. Senate Bii 1 also added 

s&on 46.1 I to the Penal Code, which provides thal the pcnaky for most ot%nses muler chapter 46 of the 

Peaal Code “is increased to ~the punishment prescribed for the next highest category of sense” ifit is 

shown that tie actor committed the offeose within s weapon-free school zone. Id. 0 43. at 2490-91. 

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

In addition, Senate Bii 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 Chapter 2528.32, or 69. Alcoholic Beverage Code, if 

the business derives 51 percent or more of its income from the sale of 

alcoholic beverages for on-premises consumption; 

(2) on the premises where a high schooL collegiate. or 

professional sporting event or htterscholastic event is taking place, 

unless the license holder is a participant in the event and a handgun is 

used in the event; 

(3) on the pmises of a correctional ihcilim 

(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 religious worship. [Footnote added.] 

23hcclinll (a) cf seelicn 46.035 also govans lhe nlmmer 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.l entries. is ripen for opxation more than 120 

days in each calendar year. and has security guards on the prendsts at all times. 

The term does not include any public or private dfiveway, stree& sidewalk or 

walkmy, parking lol, puking garage., or other parking atea. 

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

p. 1958 
Honorable Rodney Ellis - Page 4 (UM-363) 

Id. In addition, subsection (c) of section 46.035 provides that a license holder commits an 

&JLW if he or she intentionally, knowingly. or recklessly carries a handgun under the 

U~~OI’@ of article 4413(29ee) at any meeting of a governmental entity. Subsection (g) of 

section 46.035 provides that it is a class A misdemeanor to carry a concealed handgun at 

the foregoing places, with the exception ofthe premises of businesses that have permits to 

SCU alcoholic beverages and correctional facilities. Canying a concealed handgun on the 

latter two types of premises constitutes a third degree felony. See uLr0 supra note 1 

(discussing recently enacted Penal Code 0 46.11). 

The term “premises” as used in section 46.035 “means a building or a portion of a 

building. The term does not include any public or private driveway, street, sidewalk or 

Walkway, parking lo& parking garage, or other parking area.” Penal Code 5 46.035(f)(3k 

see u&o id. 0 46.035(f)(l) (providing that the term “amusement park” does not include 

“any public or private driveway, street, sidewalk or 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 concealed m 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, parking lot, parking garage, or other parking area of a business that 

sells alcoholic beverage+ a high school, collegiate, or professional sporting event or 

intertxholastic evaa, comctional hility, hospital or nursing home, amusement park, or 

church, synagogue, or other established place of religious worship.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 defined more broadly to include nc4 only 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); Attorney General Opinion H-22 (1973) 8t 3. Although the legislature gave term 

>mmises” 8 different meaning for pmposes of section 46.035. as discus& below we believe that Senate 

Bill 60 does not affect the rights ofa primte property owner 10 pmhiit the carrying of handguns on their 

private properly. This could include privately owned drkway$ star& sidewalks or w&ways, paclring 

lots, parking garages, and other parking areas. For this rracon, conduct which is not an offense tmder 

section 46.035 of the Penal Code because it occurs al 8 pke excluded from the definition of the term 

“pm&es” may be an offcnsc under section 30.05 of the Penal code. See in/a pages 5-9. 

p. 1959 
Honorable Rodney Ellis - Page 5 @M-363) 

This article does not prevent or otherwise limit the right of a 

public or private employer to prohibit persons who are licensed under 

thk article from carrying a conceakd handgun on 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 prohibiting persons 6om carrying concealed handguns on the premises of the 

btt.hes.~, or whether it is limited to permitting employers to restrict their employees from 

canying conceakd handguns on the premises. You also ask, “Does this bii prevent any 

business owner [or] operator from regulating the canyhtg of conceakd [handguns] on 

the . . . premises [of the owner’s or operator’s business]?” 

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 businesses owners and operators, or just 

employers, to knit all persons, or just employees, from carrying concealed handguns on 

the premises of their businesses. As explained below, the legislative history of Senate Bii 

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 employees or 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 exclude has tradiionsJly been considered one 

of the most treasured strands in an owner’s bundle of property rights.” Loretio v. 

Teleprompter Manhattan CAlVGxp.., 458 U.S. 419,43536 (1982) (citing Z&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 exclude whomsoever they 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) (quoting Fletcher v. Coney Zskznd, 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 Wells Swimming 

Pool v. Rodriguez, 182 S.W.Zd 824, (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 amusement which 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 sufficient to 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 business is a 

p. 1960 
HonorableRodney 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 principle that a property owner may exclude persons 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 commits an offense if he enters or remains on property 

or in a building of another without effective consent and he: 

(1) had notice that the entry was forbiddm; or 

(2) received notice to depart but failed to do so. 

An offense under section 30.05 is generally a class B misdemeanor but is a class A 

misdemeanor if “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 someone with apparent authority 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, possession of 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) 

(employee who was in charge of operating employer’s ficilities was owner of Premkes for 

purposes of criminal trespass statute); Bustillos v. StWe, 832 S.W.Zd 668,672 (Tex. Cii. 

App.-El Paso 1992, writ refd) (building manager in actual possession of the property and 

who had greater right of possession than protesters was owner of building for 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 criminal complaint 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 intended to 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. 1961 
HonorableRodney Ellis - Page 7 @M-363) 

license holders were expressly prohiied from carrying concealed handguns to be cod&d 

in section 13 ofartide 4413(29ee). Id. at 18. The wmmittee substitute for Senate Bii 60 

added the fogowing place to that list: “privately owned premises wmmon~y used by the 

public, ifthe owner of the premises prominently d&plays at each entrance to the premises 

a noti= that it is unlawrirl to carry a handgun on the premises.” C.S.S.B. 74th Leg., RS., 

60.8 1, (1995). At the Senate Criminal Justice Committee hearing Senator Pattersoh the 

sponsor of the bii testified as follows: 

Any person can prohibit somwne from carrying on their residence 

premises-their business pl-mks-w that is a right they already 

have in law, by V&UC of private property rights 

He indicated that the committee substitute was hrtended to retlect existing kw, with the 

addition of the posting requirement in 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 available from Senate Staff 

services oftiw). 

Section 13 was deleted in its entirety from the committee substitute for Senate Bill 

60 on the Senate floor. S.J. 0F TM, 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 exphrined that the 

purpose of this amendment was 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 interpreted as preventing or otherwise limiting the 

right of any private or public employer from lawfully barring license holders from carrying 

concealed handguns on their own premises.” Hearings on H.B. 72 and S.B. 60 Before the 

House Corn. on Public Safety, 74th Leg., RS. (April 4, 1995) (testimony of 

Representative Allen) (tape available through House Video/Audio Services Office); 

p. 1962 
Honorable Rodney Ellis - Page 8 @M-363) 

The diizmes between the senate version of Senate Bill 60, wntsining the Penal 

Code provision regarding “privately owned premises wmmonly 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 employer had the right to prohibit an employee t+om 

carrying a handgun on the premises of the business under existing law, “there was some 

gray area in there, so this is just an a&native statement that an employer, without doubt, 

can tell his employees that they can’t carry on the premises.” Conference Committee on 

Senate Bii 60,74th Leg. RS. (May 7.1995) (tape available from Senate St& Services 

Oftice). On the basis of this evidence of legislative intent, we ~wnclude that section 32 is 

intended to apply only to the. employer-employee relationship. 

The provision in the senate version of Senate Bill 60 regard@ “privately owned 

premises wmmonly used by the public,” was the topic of extensive discussion later in the 

wnfbnce wnnnittee. Representative Allen explained that this provision was 

deliitely omitted from the House version [the house wrmnittee 

substitute for Senate Bill ~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 walking into 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 provision you 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 allowed to 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. 

p. 1963 
Honorable Rodney Ellis - Page 9 @M-363) 

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 legislature preferred for the cuminal trespass 

statute. with its @kit notice requirement and separate system of penalties, to apply. 

Thus, even though the legislature omitted the senate provision regarding “privately owned 

premises commonly used by the public,” the legislature very clearly intended to permit 

private property owners, including business owners and operators, to exclude license 

holders carrying wncealed handguns from 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 excluding persons, including both 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 building of ~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 

premises of a private business wntrary to notice as defined by the crhniwl trespass statute 

prohibiting the carrying of a wncealed handgun 

We believe that the above diion also addresses your 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 specific requirements that a busmess 

owner or operator must comply within order to restrict a license holder from carrying 

wncealed handguns on the premises of the business, we believe that the business owner or 

operator must provide notice, as defined by the criminal trespass statute, that wncealed 

handguns ‘are prohibited. 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 

p. 1964 
Honorable Rodney Eliis - Page 10 @M-363) 

chspter 241 of the Health and Safety Code and a nursing home licensed under ChaptK 242 

ofthe Health and Safbty Code. 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 criminal trespass statute by reporting the trespass to the proper law 

enforcement authorities and tiling a criminsl complaint agsinst an aheged trespasser. A 

brief discussion of business owners’ and operators’ other possible options and the 

potential liability inherent in those options follows7 

Article 14.01(a) of the Code of Criminsl Procedure permits private citir.ens to 

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 crhninal trespass 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 offenses for 

which the s&Me defining it gives the peace officer the 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 

deadly weapon in a public place in a rmumer calculated to alarm”). We further note that it 

is a felony to carry a wncealed handgun on any of the premises listed in section 46.03 of 

the Penal Code as well as the premises of certain businesses that have a permit to sell 

alcoholic ‘beverages and wrrectional facilities, as provided by subsection (g) of section 

46.035. For this resson, a business owner or operator is generally not 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&her n&e is sauslty posted. The prohibition againsl carrying a conaaled handgun on such pruntses 

in section 46.035(b) of the Penal Code is not amditioned on the posting ofa 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 classed as a felony or as an offew sgainsl the ppblic 

pa.” code Ctim. Fmc~art. 14.01(a). 

p. 1965 
Honorable Rodney Ellis - Page 11 @M-363) 

meG9 for attempting to 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 permit to sell alwholic beverages, or wmctional facilities would be 

luIthorizad to 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 authorized to &e a 

citizen’s arrest if the trespasser displays a handgun. 

We fiutha note that a business owner or operator who attempts to physically 

remove a trespasser from the premises risks prosecution for criminal assault and habiity in 

a civil action in tort for assault Src Penal Code 5 22.01 (setthrg forth 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 be justified to prevent or 

twninate a trespass. Section 9.41 provides in patinent part: 

A~nnin~possasionofland...isjustifiedinusing 

force agsinst another when and IO rhe &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 not justify use of force) wit% Hampfon v. Shmp, 447 S.W.2d 754 

(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 previously barred plaintiff .from the premises “to protect and maintain his 

business interests”). 

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 

prohibiting the 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 business invitor owes a duty to his business invitees to t&e reasonable steps to 

Vhe elements of the tort of false amesl or imprisonment arc as follows: (1) willful detention ofa 

penon; (2) against the wucnt of the person detained; and (3) the detention is without authority of law. 

Moore’s Inc. Y. Gorcio. 604 S.W.2d 261, 263 (Tot. Civ. AptvCoqms Christi 1980,. writ r&d nr.e.) 

(c&g cases). 

p. 1966 
Honorable Rodney Ellis - Page 12 @M-363) 

Protect them from intentional injuries caused by third parties if he knows or has reason to 

know, from what he has observed or from past experience, that criminal acts are likely to 

W. dtha gKWdly or at some particular time.” Id. at 246; cprrifo v. h?rs, Ruehc& 

&CO.. 663 S.W.2d 60.66 (Tex. Cii. App.-San Antonio 1983, writ refd n.r.e.) (“there is 

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 occurring or are about to occur on the premises that pose imminent 

probability of harm to an invitee; whereupon a duty of reasonable care to protect against 

such act arises.“). Thus, a plaintiff in a case against an ordinary business owner or 

operator will have to demonstrate that the business owner or operator knew or had reason 

to know that criminal acts 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 establishment generally 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 appears to depend in great part upon the foreseeability 

of the assault and whether the business OWIK or operator took reasonable measures to 

pmmt the assault. Ctmpre id. (res&rant was negligent for failing to demand that 

perpetmton of knife fight leave premises before fight began and to warn plaintiffs of 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 knowledge of potential danger). We believe it is unlikely that a 

trier of fact would conclude that a business owner or operator who posted a sign 

prohibiting the carrying of concealed handguns on the premises was liable for injuries to a 

patron inflicted by a Iicense holder carrying a concealed handgun. Fii it would be 

difficult for a business OWIIK or operator to foresee an injury indicted by 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 immune from liability. Does this principle extend to 

private persons?” This opinion concludes that 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 relationship between Senate Bill 60 and the 

criminal trespass 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. 1967 
HonorableRodney 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 whethex a 

tria of fact would find such a showing meritorious. 

SUMMARY 

Section 46.03 of the Penal Code, as amended by 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 pmauant to written regu~ons or written authorization of the 

diMion; on the premises of a polling place on the day of an 

election or While early voting is in progress; in any government court 

or otlices utilixd by the court, unless pursuant to 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 handgun under 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 

licensed under chapter 241 ,of the Health and S&y Code, or on the 

premises of a nursing home licensed under chapter 242 of the Health 

and Safety Code, unless the license holder has Written authorization 

1%~ e&menu of the ton of malicious p-tion arc as follows: (1) the commencement of a 

criminal prosecution a* the plaintier; (2) that the defendant iniliated or pro?arcd the proseattion; Q) 

that the p-tion terminated in favor of the plaintiff, (4) that the plainlilT was innocent (5) that there 

was no probable cause for the proceeding. (6) that the defendant acted with malice; 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, 

64 U.S.L.W. 3086 (U.S. July26, 1995)) (No 95-169). 

p. 1968 
Honorable 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 foregoing places, it does not p&ii the carry& of a handgun in 

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 professional sporting event or 

interscholastic event, wrrectional facility, hospital or nursing home, 

amusement park, or church, synagogue, or other established place or 

Senate Bill60 does not preclude private property owners from 

excluding license holders carrying concealed handguns from their 

premises under the crimimd trespass 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 handguns are 

prohibited commits a criminal offense. 

DAN MORALES 

Attomej Gmerd of Texas 

JGRGR VEGA 

Fii Assistant Attorney General 

SARAH J. SHJRLEY 

Chair, Gpiion Committee 

Prepared by Mary R Crouter 

Assistant Attorney General 

p. 1969