Texas Gun-Law Changes for 2011
The Texas Gun Owner's Guide
Edition 7, copyright 2010, remains the most current edition in print.
These updates bring it up to date.
Click here to download this update on one sheet, to insert into your book.
SB321, Parking Lot Protection for armed citizens
SB321 • Labor Code §52.061 • This new law was written to stop public or private employers from preventing employees from transporting or storing lawfully possessed firearms or ammo in their locked private motor vehicles while parked in any parking lot, garage or other parking area provided for employees.
SB321 • Labor Code §52.062 • The new parking-lot law does not authorize people to go armed anywhere that’s prohibited under federal or state law. It does not apply to vehicles owned or leased by the employer, unless the employer allows it as part of the job. It also does not include a school district, open-enrollment charter school or private school, as defined, or certain property with valid oil, gas or mineral leases that prohibit firearms. On certain properties that deal with hazardous materials (chemical makers or oil and gas refiners), only CHL employees may leave arms in locked vehicles if specially secured, constantly monitored, non-public parking space as defined, is provided. Employers who must obey parking-lot rules can still keep arms off their business premises, as defined.
SB321 • Labor Code §52.063 • Except for gross negligence, employers who must comply with the parking-lot rules, and their staffs, are not liable civilly for personal injury, death, or property or other damage involving firearms or ammo they are required to allow in locked vehicles on their property. The law specifies that the presence of those guns and ammo do not create an unsafe workplace (protection from a possible OSHA assault against the guns). Employers and staff have no duty to patrol, inspect or secure parking spaces, vehicles in them, or to determine employees’ compliance.
SB321 • Labor Code §52.064 • The parking-lot law doesn’t change the liability of anyone who causes harm or injury using a firearm or ammo, or anyone who aids or encourages such harm or injury, or an employee who fails to comply with the requirements of the parking-lot law.
SB321 • Gov’t Code §411-203 • The parking-lot law doesn’t change the existing power of private and public employers to ban CHLs from their business premises.
SB766, Shooting Range Protection and County Preemption
SB766 • Local Government Code §229.001, §236.001, .002, .003, §250.001; Civil Practices and Remedies Code §128.001, §128.051, .052, .053 • Sport shooting ranges operating before 9/1/11, their owners, operators, and property owners are granted broad protection from government lawsuits (which are often a tactic used to shut them down). Most ranges operating after that date can be sued by government to enforce an ordinance, statute or regulation, or to comply with generally accepted standards of operation at the time of the range’s construction. Ranges cannot be civilly sued for damages, injunctive relief, or abatement of a nuisance related to gunfire, with these exceptions: 1) breach of contract with the landowner, 2) damage or harm to private property caused by gunfire, 3) personal injury or death from gunfire, and 4) to enforce a valid ordinance, statute or regulation. A lawsuit can only be successful if an expert witness, carefully defined, can convincingly show that the people responsible for the range deviated from a reasonable standard of care expected from an ordinarily prudent range under similar circumstances. Time frames for an expert report in a suit and responses to it, adequacy of the report, plus awards of attorneys fees and court costs, are defined.
SB766 • Local Government Code §229.001, §236.001 • Tucked into the range-protection act, is robust preemption that bans municipalities from regulating gunfire at sport shooting ranges, or regulating the hours of operation more stringently than other businesses (except ones where you can drink alcohol on site). Counties are also banned from adopting regulations for the transfer, private ownership, keeping, transportation, licensing, or registration of firearms, ammo, or firearm supplies, or the discharge of a firearm at a sport shooting range, with an exception for ranges under 10 acres.
Copyright 2011 Alan Korwin • Permission to copy and circulate this page granted.
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Notes about the major laws enacted:
I encountered a good bit of resistance to the analysis that follows, but some experts agreed there are some potential problems in the language as enacted. In the interest of completeness I lay those out here for your review. The published update for 2011 assumes that the intent of the bills is the effect of the laws, and the possible loopholes identified below are minor technical glitches that could be corrected later, or left alone and hopefully of no consequence, as some experts believe.
The biggest deal no one is shouting about --
Texas passed preemption over all 254 counties!
That usually takes years of hard battle,
and it's gotten barely a whimper of recognition.
It's tucked into the end of the range protection bill.
Congratulations are in order!
And for anyone who is interested, let me suggest that the parking lot bill may have some flaws. At least two bona fide experts referred to it as sloppy drafting, which is almost innevitable when you look at the machinations of pushing the bills through the process. Our update dances around it but these things perhaps need to be addressed.
1. If the new 2011 parking lot law, §52.061, is read to include CHL employees and any other employees who lawfully have a firearm or ammo, what is the need to mention CHLs at all? (There isn't any.) Any employee who can legally possess, regardless of license, is protected, right? (With the narrow chemical-oil-gas exception as defined.) So why even mention CHL?
Here's the problem -- Using normal rules of English grammar, which is the proper way to construe statute, the phrase "who otherwise lawfully possesses a firearm" modifies CHL holders, and so appears to omit the entire rest of the population. The drafters saw the problem, but have since convinced themselves it's OK, and are relying on intent and legislative history to establish meaning (long story there, but evidence does clearly show an intent to protect everyone). Big help that will be if some judge or prosecutor simply reads the statute:
Sec. 52.061. RESTRICTION ON PROHIBITING EMPLOYEE ACCESS TO OR STORAGE OF FIREARM OR AMMUNITION. A public or private employer may not prohibit an employee who holds a license to carry a concealed handgun under Subchapter H, Chapter 411, Government Code, who otherwise lawfully possesses a firearm, or who lawfully possesses ammunition from transporting or storing a firearm or ammunition the employee is authorized by law to possess in a locked, privately owned motor vehicle in a parking lot, parking garage, or other parking area the employer provides for employees.
This would fix it, removing any ambiguity:
(a) A public or private employer may not prohibit an employee:
(1) who holds a license to carry a concealed handgun under Subchapter H, Chapter 411, Government Code, or
(2) who otherwise lawfully possesses a firearm, or
(3) who lawfully possesses ammunition
from transporting or storing a firearm or ammunition the employee is authorized by law to possess, in a locked, privately owned motor vehicle in a parking lot, parking garage, or other parking area the employer provides for employees.
This would fix it too (the red is an addition):
A public or private employer may not prohibit an employee who holds a license to carry a concealed handgun under Subchapter H, Chapter 411, Government Code, or who otherwise lawfully possesses a firearm...
And the whole thing could be done in plain English without changing intent or meaning, in 21 words instead of 45:
A public or private employer may not prohibit an employee who lawfully possesses a firearm or ammunition from transporting or storing...
I've spoken to a number of people (experts) who read the bill as CHLs only. If a few people see it that way, there will be more, and some will be on the bench.
For good measure, there should be commas after ammunition and after possess.
2. As I read it, shopping center and other public lots are not covered for the public, but would be for the center's employees, correct? Can shopping centers implement bans under this statute? I think yes, but that doesn't appear to have been a target for this bill. So it's just unequal treatment under the law, and something for another day.
3. Presumably, the law intends to protect the employer's employees, but anyone who is an "employee" anywhere would be covered under the present language, right? It could say "their employees" but it does not. So perhaps, anyone who is an employee anywhere could be protected at a shopping center or other public lot that has employees. Recommendation -- don't be the test case.
4. Another biggie: §52.061 and .062(a)(1) and .062(a)(2)(F) in the parking lot language are meticulous about including ammo in the protection, but then 52.062(b) conspicuously omits ammo. This is meaningful. Another rule of construction says that if the legislature says something in one place and omits it in another, the omission is deliberate and meaningful. Hazmat employees can only carry empty guns and not possess ammo, if the law is read as written. Absurd, yes, though other states have such rules, and I did say some experts found the writing was sloppy. Ammo should be added.
This section also uses the construction that unambiguously protects non CHLs (", or who otherwise lawfully possesses"). This is the precise language that it seems to me item 1 above needs, which makes the exposure in item 1 more severe. No rule of construction allows you to read the difference as meaningless, and since the legislature specifies it in this spot, it meant to not do so in the other. It's a small change to make, maybe even get by with a "technical correction" and not have to re-legislate, but the powers that be will need to agree and do it, and it seems to me they're reluctant to see any of this as an issue, despite the evidence. I don't want to pursue it any further, having already been scolded for noticing and bringing it up. Maybe no one will notice and none of this will matter.
5. This isvery minor, but can an oil, gas or mineral lease be valid if it is expired? It's not clear to me why "unexpired" is needed, it seems redundant, unless expired leases are somehow valid. Are they? Or just sloppy again -- like all the unnecessarily redundant redundancy in the drafting style. If it isn't redundant, we'll need to know the difference between a valid lease and an unexpired valid lease.
6. Finally, a lawyer friend (not from Texas I might add) points out that the vehicle must be unlocked for a while to get in and out, or pick up passengers, so the protection evaporates briefly (protection only applies to a locked vehicle). And if you ever had to use the firearm, I guess you'd have to do it from within the locked vehicle (though I seem to recall that in Texas legit self defense is protection from ancillary charges, I'll have to look that up).
The problems in 1 and 4 seem to me to require attention.
What do you think?
Charles Cotton, past president of TSRA and a very fine well-experienced lawyer,
argues there is no ambiguity, no need for change, and cites this link to a web forum he moderates as proof:
Unfortunately, the proof is not dispositive, and includes a disproof by a writer ("DallasCHL") who is articulate, well reasoned and makes the same "wrong arguments" others make, based on the wording of the statute and even the legislative history, here:
How many people have to get it "wrong" before people will recognize it's at least ambiguous?
Mr. Cotton indicates there are many who don't get it:
"I can't say for sure who was the first person to raise this issue, but based upon timing, it seems that it originated with Shane McCrary a/k/a MR REDNECK with this post on OpenCarry.org It was picked up by others on TexasGunTalk and perhaps other boards, including here on TexasCHLforum."
It was also read the "wrong" way by one of the deep insiders working on the bill, until convinced by others that it was OK, and then it was just go along to get along. My earliest notes show I got it "wrong" in late July, 2011.
When asked, another very fine lawyer, extremely gun savvy and tight with the NRA (but not a Texan), said:
Schools don't teach people to diagram sentences any more, which is why we get unintelligible sentences like these.
The question is whether the comma signifies "or" or "and." Or, put another way, can a person without a license store a gun in the employer's parking lot?
Option 1: A public or private employer may not prohibit an employee who holds a license to carry a concealed handgun …, OR who otherwise lawfully possesses a firearm, or who lawfully possesses ammunition from transporting or storing a firearm or ammunition (WHICH) the employee is authorized by law to possess….
Option 2: A public or private employer may not prohibit an employee who holds a license to carry a concealed handgun …, AND who otherwise lawfully possesses a firearm, or who lawfully possesses ammunition from transporting or storing a firearm or ammunition (WHICH) the employee is authorized by law to possess….
In my opinion, it should be read as "and," the intention being to require that the person not only have a license, but be otherwise lawfully in possession. So, for example, a person with a license who was carrying a stolen gun would not be authorized to store the stolen gun in the locked car in the parking lot, because he would not be "otherwise lawfully in possession." If the illiterate legislator who wrote this statute had meant "or," then there would have been no need for the first qualification of having a license, because anybody with a license already would have fit within the definition of "lawfully possessing a firearm."
Therefore, an employer may not prohibit and employee who holds a license to carry a concealed handgun, and who otherwise lawfully possesses a firearm or ammunition, from transporting or storing the firearm or ammunition in a locked vehicle in the parking lot.
Getting in and out of the vehicle presents a potential problem, because for a few minutes, the vehicle won't be locked, will it? Doh!
Worst of all, clear and unambiguous language IS used by the legislature, in 52.062(b), contradicting the version in question in 52.061. The only problem with this problem is that some people are unwilling to accept the evidence before their eyes. Why would the legislature write it two different ways if they didn't mean two different things? That's how a judge must reason in dealing with this -- to do otherwise would abrogate iron-clad rules of interpretation. There is no doubt the legislature did mean to include everyone, not just CHLs. So the problem is simple, and the statute should be corrected before somebody gets hurt.
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