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

‘Section13provides

inpertinent

part: (a) Theboardmayadoptandenforce reasonable rulessndregulations: (1) to secureand maintainsafetyaad efficiencyin the operation and maintenance

ofill system

@) A condensedsubstantive statement

of the rulesandregulations shall be publishedafteradoptiononce a weekforhvo consecutive weeks in a newspaper with general circulationin the areain which the authorityis located,which noticeshall advisethatthefull textof the rulesand regulations is on file in the principalof&e of the authoritywhereit maybe readby any interested person. Such rules and regulationsshall 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). TheSeventy-fourth Legislature

haswed article1118x;the repeal bewnm elfwtive on September 1, 1995. ActofMay 1, 1995,74th Leg., RS., ch. 165, $5 24, May27, 1995Tex. Scss.LawServ.1025, 1870, 1871. 3ection 451.107provides in pertinent

part:
RULES. (a) Theboard

byresolution

mayadopt

rolesfor: (1) the safeandcfticicntoperation and maintenance

of the transit authority system.

(b) A noticeof each roleadopt&bytheboardshallbe poblishcdin a newspaperwith generalcimlation in the areain which the authorityis located onceeachweekfortwocoosecotivc weeksatIer

adoption ofthe rule. The noticemustcontaina condensed statement of the sobstaaceof the rule and most advisethata copyof the complete twctof the roleis filed in the principal offke oftheauthority,

where thetextmayberead

byanyperson. (c) A rule becomes cffcctive 10 days atterthe date of the second publication

ofthenoticeunderthis 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 Codebecomeseffectiveon September

1, 1995. Id. 5 27, at 1871. %ection 32 provides

asfollows:
RIGHTSOF EMPLOYERS. This article dots not preventor othcrwia limit the right of a public or privateemployerto prohibitperaooswho are licensedunderthis article fromcarrying

a concealed

handgunon the premisesof thebusiness.
Ael ofIvlay16, 1995,74lb Leg.,RX, ch. 229,s 1, 1995Tex. Scss.Law Serv. 1998.2012 (tobe ccditied as V.T.C.S.art.4413(29ee),8 32).

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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 AttomeyGeneral

OpinionsH-l 19andH-1068,this office declared unmnsti~tional portions of earlierversionsof section 13 that ‘@port[ed] to delegateto transitauthoritiesthe power to make violation of its rules and regulationsa crime,”AttorneyGeneralOpinion H-119 (1973) at 8; accord Anomcy Ganeral

OpinionH-1068(1977)at2-3. TheSeventiah Legislature amended section 13to delete all rdermas totheestablishment ofpenalties

fortheviolationofrulesadopted underseaion 13. See Act ofJune 1, 1987.7Oth

Leg.,KS., ch. 350,§ 2, 1987Tex. Gen.Laws 1772, 1772-73.

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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 ‘aIha., 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 51.001 provides:
The governing body of a municipality may adopt, publish,

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

p. 1973Honorable 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. 1974HonorableRon 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 ofLaredo, 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

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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

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