/>iThe Texas Open Carry Law (HB 910) allows Texans with a concealed handgun license or new licensees under the Open Carry Law to openly carry a handgun in plain view in a shoulder or belt holster in public places.
Rights of Employers
While licensees are able to openly carry handguns, the Open Carry Law “does not prevent or otherwise limit the right of a public or private employer to prohibit persons who are licensed under this subchapter from carrying a handgun on the premises of the business.”[1] “Premises” is defined as “a building or portion of a building. The term does not include any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area.”[2]
Restrictions on Employers
The former law prohibiting employers from restricting concealed handgun licensees from transporting or storing firearms in a privately owned vehicle in an employee parking lot remains unchanged. The Open Carry Law states, “A public or private employer may not prohibit an employee who holds a license to carry a handgun … or who lawfully possesses ammunition from transporting or storing a firearm 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."[3] The employer can, however, prohibit the transporting or storing of a firearm in a “vehicle owned or leased by a public or private employer used by an employee in the course and scope of the employee’s employment, unless the employee is required to transport or store a firearm in the official discharge of the employee’s duties.”[4]
Open Carry as it Relates to Security Officers
There is no section of the Open Carry Law that would prevent an employer from opting-out of open carry if there is an armed security guard on the employer’s premises. The only relevant portion of the law related to security guards is whether security guards can openly carry. The law states that “an individual who is acting as a personal protection officer [one who, while carrying a firearm, provides to another individual personal protection from bodily harm] and is wearing the uniform of a security officer…may not conceal any firearm the individual is carrying and shall carry the firearm in plain view. An individual who is acting as a personal protection officer and is not wearing the uniform of a security officer shall conceal the firearm, regardless of whether the individual is authorized to openly carry the firearm under any other law.”[5]
Signage for Employer “Opting-Out” of Open Carry of Openly Carried or Concealed Handguns
The Open Carry Law adds Penal Code Section 30.07 to establish a new offense for trespassing with an openly carried handgun if a license holder: (1) openly carries a handgun on property of another without effective consent; and (2) received notice that entry on the property by a license holder openly carrying a handgun was forbidden.[6] Notice can be received by oral or written communication.
Written communication means: (A) a card or other document on which is written language identical to the following:
PURSUANT TO SECTION 30.07, PENAL CODE (TRESPASS BY LICENSE HOLDER WITH AN OPENLY CARRIED HANDGUN), A PERSON LICENSED UNDER SUBCHAPTER H, CHAPTER 411, GOVERNMENT CODE (HANDGUN LICENSING LAW), MAY NOT ENTER THIS PROPERTY WITH A HANDGUN THAT IS CARRIED OPENLY
or (B) a sign posted on the property that: (i) includes the language described in Paragraph (A) in both English and Spanish; (ii) appears in contrasting colors with block letters at least one inch in height; and (iii) is displayed in a conspicuous manner clearly visible to the public at each entrance to the property.[7] Similarly, Penal Code Section 30.06 applies regarding concealed handguns and signage prohibiting concealed handguns must be identical to the following:
PURSUANT TO SECTION 30.06, PENAL CODE (TRESPASS BY LICENSE HOLDER WITH A CONCEALED HANDGUN), A PERSON LICENSED UNDER SUBCHAPTER H, CHAPTER 411, GOVERNMENT CODE (HANDGUN LICENSING LAW), MAY NOT ENTER THIS PROPERTY WITH A CONCEALED GUN
or (B) a sign posted on the property that: (i) includes the language described in Paragraph (A) in both English and Spanish; (ii) appears in contrasting colors with block letters at least one inch in height; and (iii) is displayed in a conspicuous manner clearly visible to the public. [8]
An employer who wants to ban both concealed and open carry must provide notice for each.
Employer’s Exposure to Civil Liability
The Open Carry Law does not grant employers immunity from civil actions resulting from an occurrence involving the employee and his or her openly carried firearm. The 2011 Texas concealed handgun law expressly included a provision providing employers with such immunity, except in cases of gross negligence, “for civil actions for personal injury, death, property damage or any other damages resulting from or arising out of an occurrence involving a firearm or ammunition that the employer is required to allow on the employer’s property.”[9] That immunity, however, applies only to firearms and ammunition stored or transported in an employee’s vehicle and does not address an occurrence involving an employee who is openly carrying a firearm on the employer's premises.
The Open Carry Law does not create a private cause of action for employees against their employer if the employee contends that his or her right to openly carry has been infringed. If the proper notice is given of the employer’s policy to ban concealed and openly carried handguns, the offender is committing a criminal trespass for which the police can be called to address the situation.
With the new legislation, employers must decide whether to permit employees, customers, vendors, guests, visitors and other third parties to carry handguns (openly or concealed) on their premises and whether current company policies need to be implemented or updated to reflect the change in the law.
[1] Tex. Gov’t Code § 411.203.
[2] Tex. Pen. Code § 46.035(f)(3).
[3] Tex. Lab. Code § 52.061.
[4] Tex. Lab. Code § 52.062.
[5] Tex. Occ. Code § § 1702.206(b); 1702.202.
[6] Tex. Pen. Code § 30.07(a).
[7] Tex. Pen. Code § 30.07(c)(3).
[8] Tex. Pen. Code § 30.06 (c)(3).
[9] Tex. Lab. Code § 52.063.
