TEXAS CONCEALED HANDGUN LAW
by Robert D. McTaggart, Attorney At Law

March 22, 1996

If you can’t beat ‘em, join ‘em! More and more people seem to be carrying guns today, especially criminals. Now Texas has passed a law that allows even law-abiding citizens to carry guns.

The new Texas statute allows residents of the state to obtain a license to carry a concealed handgun. An applicant for a license must meet certain requirements and take a safety training course. The state began issuing licenses on January 1, 1996.

This article focuses on how the new concealed handgun law affects real estate. The statute lists certain places where handguns are not permitted to be carried. These include bars (a business which derives 51% or more of its income from the sale of alcoholic beverages for on-premises consumption), sporting events, jails, hospitals and nursing homes, certain amusement parks*, and churches, synagogues, and other established places of religious worship.

The statute specifically provides that it does not prevent or otherwise limit the right of a public or private employer to prohibit persons from carrying a concealed handgun on the premises of the business. Manufacturers and other businesses which are not open to the public are clearly entitled to prohibit their employees from bringing guns on the premises. But some confusion has resulted from this provision of the statute. The use of the word "employer" could be construed to mean that this provision allows employers to prohibit their employees from carrying guns, but that it was not intended to allow a business owner to prevent non-employee visitors from carrying guns on the premises.

Thus, the statute is unclear as to whether a business other than those specifically listed may prohibit guns on the premises. For example, it is not clear whether the owner of a cafeteria, video store, hotel or multi-tenant office building may prohibit customers or tenants from bringing guns in the premises.

Arguments will undoubtedly be raised on behalf of persons licensed to carry concealed handguns that they cannot be prohibited from carrying a concealed handgun anywhere other than those places specifically listed in the statute. Some business owners will want to prohibit anyone from bringing a gun into their premises, even if the business is not listed in the statute. They would argue that they have the right to control the presence of handguns at their business. Further clarification of the statute or development of case law should help to clarify these issues.

If old western movies are any authority in this matter, they would seem to support the proposition that the property owner has the right to require visitors to "check their guns at the door." Apparently, it was the practice of some business owners in the days before handguns were prohibited by law for the business owner to have the right to have his business be "gun-free."

Better authority than the movies is the Office of the Attorney General for the State of Texas. That office has addressed the issue in Opinion No. DM-363 dated August 30, 1995. The opinion concludes that a business owner or operator may exclude license holders carrying concealed handguns from their business.

If a business owner decides to adopt the position that he is entitled to prohibit the carrying of handguns on his premises, he might post a sign at the door which states "no guns allowed" announcing the policy of the business. So long as everyone abides by the policy, there is not likely to be a problem. But there would be a problem if an "outlaw" were to enter the premises with his guns blazing. All of the law abiding citizens who are licensed to carry handguns who followed the policy would be prevented from putting an end to the carnage. Innocent victims and their families might argue that the business owner’s policy of preventing handguns allowed a situation to be much more serious than it would have been had law abiding citizens been allowed to bring their weapons on to the premises.

A similar argument was advanced in support of the passage of the new statute. Before the new law was passed, a man crashed his truck into a cafeteria in Killeen, Texas and gunned down a number of helpless people before he was finally stopped by police. The cafeteria incident was used as an example of a situation where many deaths could have been prevented if law abiding citizens were allowed to carry guns to counteract the assault. One of the survivors asserted that she could have saved the lives of her parents and other innocent victims if she had her handgun with her at the time.

Bars, hospitals and nursing homes are required to display at each entrance a sign in both English and Spanish that it is unlawful to carry a handgun on the premises. Any other business owner, however, should carefully consider the ramifications of having a policy which could be difficult to effectively enforce. It is interesting to note that the new law requires the handgun to be concealed. Since the law requires license holders to conceal their handguns, the only way to enforce a policy prohibiting guns would be to frisk everyone who comes onto the premises. If the business owner establishes the policy but does not effectively enforce it, then there is the potential for a claim if a shooting incident were to occur on the property.

Property owners and investors may wish to include a provision in their lease form which requires the tenant to indemnify the owner against any incidents which may occur on the property. Also, owners and tenants may wish to discuss with their insurance agents the possible impact of prohibiting handguns on the premises (or even the failure to prohibit handguns) on the insurance coverage for the property or business.

Robert D. McTaggart is Board Certified as a specialist in the area of Commercial Real Estate Law by the Texas Board of Legal Specialization. He works with buyers, sellers, owners, tenants, investors and lenders to help complete real estate and business transactions.

The foregoing article is intended to give an overview of a new statute but is not intended as legal advice. If you have a specific legal question or need legal advice, contact an attorney of your choice.

*The term "amusement park" means a permanent indoor or outdoor facility or park where amusement rides are available for use by the public that is located in a county with a population of more than one million, encompasses at least 75 acres in surface area, is enclosed with access only through controlled entries, is open for operation for more than 120 days in each calendar year, and has security guards on the premises at all times. You can see that many places which might be commonly understood to be amusement parks would not fall within the classification of an amusement park for purposes of this statute.