News

January 4, 2016

Open this! It has the Open Carry rules for your business

In addition to their New Year’s Resolutions, business owners will have another important choice to make during 2016: whether or not to allow the open carry of handguns at the workplace. Beginning January 1, 2016, Texas House Bill 910 authorizes licensed individuals to openly carry a handgun in a shoulder or hip holster in any location that allows the licensed carrying of a concealed handgun.

History of HB 910

For the past 20 years, Texas handgun license holders have been able to carry a handgun in a concealed manner under the Concealed Handgun Licensing (CHL) law. If an employer chose to prohibit the carrying of concealed firearms on its premises, it was required to provide oral or written notice to employees and visitors (customers, vendors and other third parties). The term “premises,” as defined by Texas Penal Code, includes the building or a portion of the building, but not driveways, streets, sidewalks or parking areas.

HB 910, the Open Carry law, expands on the Texas CHL law, revising various Texas Codes to remove the term “concealed” and leave only the term “handgun.” Individuals who already have a concealed handgun license will not be required to obtain a new license, pay an additional fee or undergo additional training to carry openly. It still will be illegal to carry a handgun, openly or concealed, in a number of specific locations, including primary and secondary schools and educational institutions; high school, collegiate and professional sporting events; correctional facilities; hospitals and nursing homes; amusement parks and racetracks; places of worship; and government buildings, including courts and airports.

Practical Implications for Employers

The Open Carry law also contains a provision (just as the concealed handgun law did) at Section 411.203 of the Texas Government Code that provides:

This subchapter 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.

The impending implementation of HB 910 means that business owners must make a decision as to whether or not they will allow employees and/or visitors to carry handguns, concealed or open, on the premises of their business.

This is not a one-size-fits-all decision. An employer has the right to make firearm allowances for employees that exceed the allowances for visitors. For instance, an employer may allow employees to openly carry holstered handguns on the business’ premises, but prohibit visitors from carrying handguns. Alternatively, an employer already doing so may continue to allow employees and visitors to carry concealed handguns on its premises, but prohibit open carry. In making these decisions, the employer should consider not only the nature of its business and the circumstances of its employees and customers, but also ensure that its policies do not violate any leases, insurance policies or other contracts or agreements. Another important factor for consideration is the absence of a provision in HB 910 granting immunity to employers from civil actions resulting from an occurrence involving an employee and his or her openly carried handgun.

Notice

No matter what decision an employer makes, it is crucial that the decision is communicated with proper notice. It is recommended that the employer revise its policies to clearly reflect the business’ firearms policy and educate employees as to the revisions. The best way to ensure an employee’s understanding of the company firearms policy is to have him or her sign a written acknowledgment to be kept in his or her personnel file.

In addition, an employer wishing to prohibit firearms in the workplace must display specific, statutory written communication. The written communication requirement means that an employer must place notice on a card or other document or otherwise display a sign in a conspicuous manner clearly visible to public and located at each entrance to the property. The statutory language must appear in English and Spanish, in contrasting colors, and with block letters at least one inch in height.

To prohibit concealed carry on the premises of a business, the following language must be used to provide notice:

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 handgun.

To prohibit open carry on the premises of a business, the following language must be used to provide notice:

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.

The sign(s) must display the exact language in the statute to convey proper notice. Although neither the CHL nor the Open Carry law create a cause of action against the employer for infringement on any rights to carry a handgun, arguably, if the written notice does not comply with the law, a licensed individual does not receive effective notice. It is important to note that an employer may prohibit open carry of a handgun by displaying a proper Section 30.07 notice while still allowing concealed carry on the property; however, in order to prohibit both concealed and open carry, the employer must display notice as required by Sections 30.06 and 30.07 of the Penal Code.

Additional Considerations

In addition to the previously noted places where it is illegal to carry a handgun, whether openly or concealed, handguns are also prohibited on the premises of “51% businesses.” Under Texas Government Code Section 411.204, a business that has a permit or license issued under chapter 25, 28, 32, 69, or 74 of the Texas Alcoholic Beverages Code, and derives 51% or more of its income from the sale of alcoholic beverages for on-premises consumption, must post a sign at each entrance, conspicuously displayed in a manner clearly visible to the public, giving notice that it is unlawful for any person, licensed or not, to carry a handgun on the premises. Notices for 51% businesses carry the same formatting requirements as those for any other business (English and Spanish, contrasting colors, block letters of one inch or more), but must also include the number “51” printed in solid red at least five inches in height. Knowing failure to comply with this requirement may result in suspension of a business’ liquor license.

While an employer may prohibit possession of a handgun on its office premises, project job site, or other company facility under its control, employers should note that the term “premises” does not include any public or private driveway, street, sidewalk, walkway, parking lot, parking garage, or other parking area under Texas Penal Code Section 46.035(f)(3), even if this area is directly adjacent to the employer’s premises. Thus, an employee, if properly licensed, will be allowed to openly carry a holstered handgun on a street, sidewalk, or driveway near the employer’s premises, or even in the employer’s parking lot or garage beginning January 1, 2016. If the employee brings the handgun onto the employer’s premises, however, the employee may be charged with criminal trespass under Texas Penal Code Section 30.07.

The term “premises” also does not include a privately-owned motor vehicle of any kind. License-holders may carry holstered handguns in plain view in a privately-owned vehicle (including watercraft). Further, HB 910 amended Section 52.061 of the Texas Labor Code to provide that an employer may not prevent its licensed employees from transporting or storing a firearm or ammunition in a locked, privately-owned motor vehicle, even in a parking area the employer provides to its employees. However, HB 910, by way of Section 52.062 of the Labor Code, provides an exception to this rule for company-owned vehicles. Both public and private employers may prohibit their employees from carrying a handgun, whether openly or concealed, in a vehicle owned by the employer and used by the employee in the course and scope of the employee’s employment. Of course, this provision does not apply if the employee is required to transport or store a firearm in the course and scope of the employee’s duties.

Whether an employer chooses to prohibit or allow the open or concealed carrying of handguns on its premises (or in company-owned vehicle), the employer must clearly communicate this policy to its employees to ensure compliance. Best practice suggests that revising company policies, obtaining written employee acknowledgment and posting ample and appropriate signage, no matter how redundant, is the clear-cut way to avoid running afoul of the new Open Carry law, at least until circumstance dictates further clarity from the Texas government.

*One final note: Senate Bill 11 (referred to as Campus Carry), a provision in the new Open Carry law allowing the licensed carrying of handguns on public university grounds, with limitations, will go into effect on August 1, 2016.

The author(s) and Cantey Hanger LLP do not intend for this article to constitute legal advice, and this article does not establish an attorney-client relationship. This article is general in nature, and you should not rely on it for your specific situation because legal matters are complex and fact-specific. Instead, you should consult with counsel of your choice.

David Fielding is a Partner and Allison Carroll and Kimberly Herbert are Associate attorneys with Cantey Hanger LLP. They can be contacting by e-mailing dfielding@canteyhanger.com, acarroll@canteyhanger.com and kherbert@canteyhanger.com.