DAN MORALES 

ATT”RNEYCENERAL 

&ate of Qexae 

August 30,1995 

Honorable Ron Wilson Opinion No. DM-364 

Chair 

Licensing and Administrative Procedures Re: Whether a rapid transit authority 

House of Representatives established under V.T.C.S. article 1118x 

P.O. Box 2910 (to be recodified as Transportation Code 

Austin, Texas 78768-2910 chapter 451) may prohibit a concealed 

handgun licensee from carrying a 

concealed handgun on a public conveyance operated by the rapid transit 

authority; whether a city or county may 

prohibit a concealed handgun licensee 

from carrying a concealed handgun in a 

city or county park (RQ-828) 

Dear Representative Wilson: 

You ask three questions about the recently enacted concealed handgun law, Act of 

May 16, 1995, 74th Leg., R.S., ch. 229, 1995 Tex. Sess. Law Serv. 1998, section 1 of 

which is to be codified as V.T.C.S. article 4413(29ee). The first two questions involve the 

effect of that law on the authority of a rapid transit authority, created pursuant to 

V.T.C.S. article 1118x (to be recodified as chapter 451 of the Transportation Code, see 

Act of May 1, 1995, 74th Leg., R.S., ch. 165, $ 1, 1995 Tex. Sess. Law Serv. 1025, 

13.57-96), to prohibit the carrying of a concealed handgun on a public conveyance: 

1. Section 13 of Article 1118x of the Texas Revised Civil Statutes, 

Annotated,’ as amended by S.B. 971, 74th Legislature which 

‘Section 13 provides in pertinent part: 

(a) The board may adopt and enforce reasonable rules snd regulations: 

(1) to secure and maintain safety aad efficiency in the operation and 

maintenance of ill system 

@) A condensed substantive statement of the rules and regulations shall be 

published after adoption once a week for hvo consecutive weeks in a newspaper 

with general circulation in the area in which the authority is located, which 

notice shall advise that the full text of the rules and regulations is on file in the 

principal of&e of the authority where it may be read by any interested person. 

Such rules and regulations shall bxome effective 10 days after the second 

publication. 
Honorable Ron Wilson - Page 2 @M-364) 

codified it under Section 451.107, Transportation Code,* relates to 

the authority granted a rapid transit authority to “adopt and enforce 

reasonable rules and regulations to secure and maintain safety 

and efficiency in the operation and maintenance of the system. .*’ 

Pursuant to this statutory provision, may an “Authority” prohibit a 

person who is licensed to cany a concealed handgun under Article 

4413(29ee) of the Texas Revised Civil Statutes Annotated, from 

carrying a concealed handgun while a passenger on a vehicle used by 

the “Authority” to provide public transportation? 

2. Under Section 32 of Article 4413(29ee) of the Texas Revised 

Civil Statutes Annotated: may an Authority prohibit a person who is 

licensed to carry a concealed handgun from carrying a concealed 

(footnote continued) 

V.T.C.S. art. 1118x. 5 13(a)(l), (b). The Seventy-fourth Legislature has wed article 1118x; the repeal 

bewnm elfwtive on September 1, 1995. Act of May 1, 1995, 74th Leg., RS., ch. 165, $5 24, May 27, 

1995 Tex. Scss. Law Serv. 1025, 1870, 1871. 

3ection 45 1.107 provides in pertinent part: 

RULES. (a) The board by resolution may adopt roles for: 

(1) the safe and cfticicnt operation and maintenance of the transit 

authority system. 

(b) A notice of each role adopt& by the board shall be poblishcd in a 

newspaper with general cimlation in the area in which the authority is 

located once each week for two coosecotivc weeks atIer adoption of the rule. 

The notice must contain a condensed statement of the sobstaace of the rule 

and most advise that a copy of the complete twct of the role is filed in the 

principal offke of the authority, where the text may be read by any person. 

(c) A rule becomes cffcctive 10 days atter the date of the second 

publication of the notice under this section. 

Act of May 1, 1995, 74th Leg.. R.S., ch. 165, sec. 1, 8 451.107(a)(l), 1995 Tex. Seas. Law Serv. 1025, 

1368 (to be codified as Trans. Code 8 451.107(a)(l)). The Transportation Code becomes effective on 

September 1, 1995. Id. 5 27, at 1871. 

%ection 32 provides as follows: 

RIGHTS OF EMPLOYERS. This article dots not prevent or othcrwia 

limit the right of a public or private employer to prohibit peraoos who are 

licensed under this article from carrying a concealed handgun on the premises of 

the business. 

Ael of Ivlay 16, 1995,74lb Leg., RX, ch. 229,s 1, 1995 Tex. Scss. Law Serv. 1998.2012 (to be ccditied 

as V.T.C.S. art. 4413(29ee), 8 32). 

p. 1971 
Honorable Ron Wilson - Page 3 @M-364) 

handgun while a passenger on a vehicle used by the “Authority” to 

provide public transportation? [Footnotes added.] 

The third question involves the effect of the handgun law on the authority of a city or 

county to prohibit concealed handguns in a city or county park: 

3. Under Article 4413(29ee) of the Texas Revised Civil Statutes 

Annotated, effective September 1, 1995, are governing bodies of 

cities and counties granted authority to post notice and preclude the 

holder of a concealed carry permit from carrying a concealed weapon 

while on the premises of a city or county wntrolled park? 

We answered the second question in Attorney General Opinion DM-363, which 

we have issued contemporaneously with this opinion. There we concluded that section 32 

applies only to a public or private employer’s employees who are licensed under article 

44 13(29ee) and not to other persons who are licensed under article 4413(29ee). See 

Attorney General Opiion DM-363 (1995) at 5. Therefore, section 32 does not dispose of 

the issue of whether a rapid transit authority may prohibit all concealed handguns from its 

vehicles. 

In regard to your first question, we note that the concealed handgun law itself does 

not grant a right to carry a concealed handgun wherever the licensee chooses. The statute 

does, however, amend various Penal Code provisions regarding the canying of prohibited 

weapons, particularly Penal Code section 46.02, which otherwise would make the carrying 

of such a weapon unlawhd. Attorney General Opinion DM-363 (1995) at l-2. Therefore, 

the statute does not affect the power, if any, of a rapid transit authority to prohibit the 

carrying of handguns on its vehicles. 

Section 13 of article 1118x is a possible source of such a power. A rapid transit 

authority may invoke the police power delegated to it in section 13’ to abridge the right of 

a citizen to use his private property ifthe use will endanger public safety in a rapid transit 

system. See Spmtn v. Civ ofDcrllur, 235 S.W. 513, 515 (Tex. 1921). To be a valid 

exercise of police power, the means adopted by a rule, such as the exclusion or ejection of 

persons carrying handguns, must be reasonably necessary and appropriate for the 

accomplishment of a legitimate object falling within the rapid transit authority’s police 

power, such as the maintenance of the safety of the rapid transit system. See Falfirrias 

Creamery Co. v. Ciry of Laredo, 276 S.W.2d 351, 353 (Tex. Civ. App.-San Antonio 

1955, writ ref d n.r.e.). 

‘In Attomey General Opinions H-l 19 and H-1068, this office declared unmnsti~tional portions 

of earlier versions of section 13 that ‘@port[ed] to delegate to transit authorities the power to make 

violation of its rules and regulations a crime,” Attorney General Opinion H-119 (1973) at 8; accord 

Anomcy Ganeral Opinion H-1068 (1977) at 2-3. The Seventiah Legislature amended section 13 to delete 

all rdermas to the establishment of penalties for the violation of rules adopted under seaion 13. See Act 

of June 1, 1987.7Oth Leg., KS., ch. 350,§ 2, 1987 Tex. Gen. Laws 1772, 1772-73. 

p. 1972 
Honorable Ron Wilson - Page 4 @M-364) 

This office cannot determine whether a rapid transit authority rule prohibiting 

handguns on public conveyances would be reasonably necessary and appropriate for the 

accompMune.nt of a legitimate object within the police power of the rapid transit 

authority. The reasonableness and necessity of a measure taken under the police power is, 

in the first instance, a matter within the discretion of the governing body taking the 

measure. Burringron v. Cokinos, 338 S.W.Zd 133, 141 (Tex. 1960). “Any attempted 

exercise of the [police] power is always subject to review by the wurts on the 

question of reasonableness,” id., but the courts will not disturb the legislative action unless 

it is clearly shown to be unreasonable and arbitrary, Sture v. S’am ‘a Iha., 447 S.W.2d 

407, 414 (Tex. 1969); see St&e v. Richards, 301 S.W.2d 597, 602-03 (Tex. 1957); Ci@ 

of Coleman v. Rhone, 222 S.W.2d 646, 649-50 (Tex. Civ. App.--Eastland 1949, writ 

ref d). 

In answer to your third and last question, we believe that a municipality does not 

have the power to prohibit licensees from carrying handguns in city parks but that a 

county does have such power over county parks. Home-rule cities have %I1 power of 

self-government, that is, Ml authority to do anything the legislature could theretofore 

have authorized them to do.” Forwood v. Ciry of Tqlor, 214 S.W.2d 282, 286 (Tex. 

1948); see Tex. Const. art. XI, 5 5; Local Gov’t Code 5 51.072. They “look to the 

Legislature not for grants of power, but only for limitations on their power.” Dulhs 

Merchanis & Concessionaires Ass’n v. Ciry of LMlas, 852 S.W.2d 489, 490-91 (Tex. 

1993). “The powers of home rule cities are subject to and may be limited only by their 

charters or by the Constitution or by general law.” Lower Cola. River Au& v. City of San 

Morcos, 523 S.W.2d 641, 644 (Tex. 1975). “If the Legislature chooses to preempt a 

subject matter usually encompassed by the broad powers of a home-rule city, it must do so 

with unmistakable clarity.” Daths Merchants & Concessionaires Ass’n, 852 S.W.Zd at 

491. As for non-home-rule municipalities, “[t]he [police] power rests in the State, but by 

legislative grant may also be exercised by municipalities.” Coleman v. Rhone, 222 S.W.2d 

646, 648 (Tex. Civ. App.--Eastland 1949, writ refd). Similarly, a commissioners court 

has no general police power, but it “does have those powers expressly conferred upon 

it by the Constitution and by the Legislature, together with such implied powers as are 

necessary to exercise the powers expressly conferred.” Travis Cow@ v. Colunga, 753 

S.W.2d 716, 720 (Tex. App.--Austin 1988, writ denied) (citing Canales v. Luughlin, 214 

S.W.2d 451 (Tex. 1948); Clprk v. Finley, 54 S.W. 343 (Tex. 1899)). 

Section 33 1.007 of the Local Government Code specifically recognizes the police 

power over its parks that a home-rule municipality already possesses and grants nonhome-rule municipalities and counties police power over their parks, That section 

provides in pertinent part: “A park shag be open for the use of the public under rules 

prescribed by the goveming body of the park. .” In addition, section 51.001 of the 

Local Government Code generally grants police power to a municipality. Section 5 1.001 

provides: 

The governing body of a municipality may adopt, publish, 

amend, or repeal an ordinance, rule, or police regulation that: 

p. 1973 
Honorable Ron Wilson - Page 5 @M-364) 

(1) is for the good government, peace, or order of the 

municipality or for the trade and commerce of the municipality; and 

(2) is necessary or proper for carrying out a power granted by 

law to the municipality or to an ol?ice or department of the 

municipality. 

We believe the police power granted in section 51.001 would include a municipality’s 

power to regulate its parks. Cf. Massengale v. Ci@ of Copperas Cove, 520 S.W.2d 824, 

828 (Tex. Civ. App.-Waco 1975, writ refd n.r.e.) (non-home-rule city’s ordinance 

allowing private club to sell alcoholic beverages in city only if club was located in use 

district was valid exercise of city’s police power under predecessor of section 5 1 .OOl). 

The Seventy-fourth Legislature, in the concealed handgun law, tempered a 

municipality’s police power over its parks by amending section 215.001 of the Local 

Government Code. Before the amendment section 215.001 read in pertinent part: 

(a) A municipahty may not adopt regulations relating to the 

transfer, private ownership, keeping, transportation, licensing, or 

registration of firearms, ammunition, or firearm supplies. 

(b) Subsection (a) does not atfect the authority a municipality 

has under another law to: 

(6) regulate the carrying of a firearm at a: 

(A) public park 

Local Gov’t Code $215.001(a), (b)(6). The amendment adds an exception to subsection 

(b)(6) of section 215.001 so that it now reads in pertinent part: 

(b) Subsection (a) does not a&t the authority a municipality 

has under another law to: 

(6) regulate the carrying of a firearm by a person other 

than a person licensed to carry a concealed handgun under 

Article 4413(29ee), Revised Statutes, at a: 

(A) public park 

Act of May 16, 1995, 74th Leg., R.S., ch. 229, 5 7, 1995 Tex. Sess. Law Serv. 1998, 

2014-15 (added language italicized). The legislature thus has specifically taken away a 

municipality’s authority to prohibit or restrict the licensed carrying of a concealed handgun 

in a public park. 

p. 1974 
HonorableRon Wilson - Page 6 @M-364) 

Neither the concealed handgun law nor any other statute has restricted a county’s 

police power over its parks under section 331.007 of the Local Government Code. We 

believe that section 33 1.007 permits the “governing body of a [county] park” to adopt a 

rule providing for the exclusion or ejection of persons canying handguns from a county 

park if such a rule is reasonably necessary and appropriate for the accomplishment of a 

legitimate object falling within the county’s police power under section 331.007. See 

Falfirrias Creamery Co. v. Ciq of Laredo, 276 S.W.2d at 353. 

The principles stated above regarding a rapid transit authority’s initial 

determination of the propriety of an exercise of police power and judicial review of that 

determination also apply to counties: the reasonableness and necessity of a measure taken 

under the wunty’s police power is, in the first instance, a matter within the county’s 

discretion; and the wurts would not disturb a county’s regulation of handguns in county 

parks unless the regulation were clearly shown to be unreasonable and arbitrary. 

Therefore, this office cannot determine whether a county ordinance prohibiting handguns 

in a county park would be reasonably necessary and appropriate for the accomplishment of 

a legitimate object within the police power of the county under section 33 1.007. 

SUMMARY 

Section 32 of V.T.C.S. article 4413(29ee) does not affect the 

power, if any, of a rapid transit authority to prohibit the carrying of 

handguns on its vehicles by persons other than employees of the 

rapid transit authority. 

A rapid transit authority may invoke the police power delegated 

to it in section 13 of V.T.C.S. article 1118x to abridge the right of a 

citizen to use his private property if the use will endanger public 

safety in the rapid transit system. The reasonableness and necessity 

of a measure taken under the rapid transit authority’s police power is, 

in the first instance, a matter within the authority’s discretion. The 

courts would not disturb a rapid transit authority’s regulation of 

handguns on public conveyances unless the regulation were clearly 

shown to be unreasonable and arbitrary. 

The legislature, in the concealed handgun law, has specifically 

taken away from a municipality the authority to prohibit the licensed 

carrying of concealed handguns in a city or county park. See Act of 

May 16, 1995, 74th Leg., R.S., ch. 229, § 7, 1995 Tex. Sess. Law 

Serv. 1998,2014-15. 

A county has the power to adopt a rule providing for the 

exclusion or ejection of persons carrying handguns from county 

parks if such a rule is reasonably necessary and appropriate for the 

accomplishment of a legitimate object falling within the county’s 

p. 1975 
Honorable Ron Wilson - Page 7 @M-364) 

police power under section 33 1.007 of the Local Government Code. 

The reasonableness and necessity of a measure taken under the 

county’s police power is, in the first instance, a matter within the 

county’s discretion. T’he wurts would not disturb a county’s 

regulation of handguns in county parks unless the regulation were 

clearly shown to be unreasonable and arbitrary. 

DAN MORALES 

Attorney General of Texas 

JORGE VEGA 

Fist Assistant Attorney General 

SARAH J. SHIRLEY 

Chair, Opinion Committee 

Prepared by James B. Pinson 

Assistant Attorney General 

p. 1976