Open Carry and Texas Banks

As appeared in Banker’s Digest on December 14, 2015

By: Karen Neeley

Probably no state embraces the second amendment as strongly as Texas.  However, private right to carry handguns—either concealed or openly—was limited until fairly recently.  The following briefly describes the history of this issue in Texas and describes some implications for financial institutions.

Concealed Handgun Licensing Created.  In 1995, the Texas Legislature enacted SB 60, which created the original concealed handgun scheme.  Almost immediately, Attorney General Dan Morales issued DM-363 which provided that private business owners could exclude persons from carrying concealed handguns onto their property.  But in order to enforce such prohibition through the criminal trespass laws, the AG opinion suggested that the property owner should give notice that carrying a concealed weapon was prohibited.  The best way to do that would be with written notice.

Criminal Trespass.  In 1997, the Texas Legislature responded by enacting HB 2909, which added Section 30.06 to the Penal Code.  Very explicit language and signage were required before criminal trespass could be asserted against someone carrying a concealed handgun on to private premises.  That written notice can be through a card or other document as well as a sign.  Oral communication is also permitted, but there is some concern that a mere oral communication may be hard to prove.

Open Carry.  In this last session, open carry was authorized for concealed handgun license (CHL) permit holders.  A new criminal trespass section was added as Section 30.07 of the Penal Code, and 30.06 was amended.  Both sections permit the owner (or someone with authority to act for the owner) to either give oral or written notice, prohibiting handguns on the premises. Written communication can include a card or other document or a sign with the language specified in each section.  The signs have to meet the formatting requirements (1” block letters, contrasting colors), be in both English and Spanish, and contain the specific language—which is different for each.

To comply, the card or sign must contain language that is “identical to the following:…”  For concealed carry, the language is: 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.  For open carry, the language is: 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 concealed handgun sign only needs to be displayed in a conspicuous manner, clearly visible to the public while the open carry notice must be at each entrance to the property.

Practical Implications:  here are possible options.

**Do nothing.  In communities where the Second Amendment reigns supreme, this may be the best solution.  To do anything could actually precipitate problems with the public or even with the board.

**Prohibit both concealed and open carry of handguns.  If the bank wants to be able to enforce this with a criminal trespass complaint, it will need to do one of the following:

*Post the statutory signs (both of them).  Follow the requirements identified above.

*Post a generic sign (international prohibition sign of circle with line across a gun).  Then hand out a card with the statutory language to a person who enters the premises with a visible handgun.

**Prohibit either concealed carry or open carry.  Follow the procedure described above, using either the statutory sign or the card process.

Finally, remember that all of this applies to handguns—not rifles or shotguns.  Second amendment advocates (including prior Land Commissioner Jerry Patterson) note that open carry of long guns is not proscribed by law.  If this is a concern, then also post the universal prohibition sign with a line through a rifle.

The changes to the Texas Labor Code were technical and did not alter the ability of an employer to adopt a personnel policy prohibiting handguns on the premises (but okay in the employee’s vehicle in the parking lot).

Finally, there is nothing in all of this to prevent a bank from having different requirements at different branches.  Thus, a bank might permit carry at its rural branches where hunting is a way of life but prohibit it in urban areas.

The changes described above all take effect January 1, 2016.  So, there is still a little time, for a bank board to cuss and discuss this issue and come up with its game plan!

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