Gun Laws and the Workplace Lynn Stillman General Counsel, Texas Region North American Title Company 8070 Park Lane, Suite 200 Dallas, Texas 75231 214-720-1020 lstillman@nat.com Texas Land Title Institute December 9, 2016
Lynn Stillman North American Title Company Lynn Stillman is the Texas General Counsel for North American Title Company. She supports the North American Title branches throughout the state with effective legal counsel, ensuring their transactions close seamlessly and with the least amount of risk for all parties involved. Lynn has ten years experience in the Texas title industry. Before joining North American Title Company, she served as Senior Vice President and Corporate Counsel for two independent title agencies in the Dallas area. Lynn has experience in handling regulatory, compliance and corporate matters, as well as closing, staffing, training, business development and administration. Lynn is an alumni of the 2015 TLTA Leadership Academy, member of the TLTA Regulatory and TLTA Institute committees and the MetroTex Forms and Contracts committee. As a TREC and TDI-certified instructor, Lynn enjoys creating and teaching classes to help educate the title and real estate communities. Lynn earned her Bachelor of Arts from Michigan State University and her Juris Doctorate, Cum Laude, from Michigan State University College of Law. She was admitted to the State Bar of Texas in 2006. As a resident of Dallas County, Lynn enjoys spending time with her husband, Daniel, daughters, Isabel and Rory and dog, Quincy. 2016 Texas Land Title Institute Gun Laws and the Workplace 2
Table of Contents I. The New Open Carry Law II. III. Who Can Carry a Handgun and Where Statutory Notice to Prohibit Handguns a. Concealed Carry b. Open Carry c. Property Owner s Decision vs. Business Owner s Decision IV. Special Concerns for Employees a. Guns in Employee s Cars b. Guns on Business Premises V. Liability Considerations VI. VII. The Gun Debate Conclusion EXHIBITS EXHIBIT A: EXHIBIT B: 30.06 Concealed Carry Signage 30.07 Open Carry Signage 2016 Texas Land Title Institute Gun Laws and the Workplace 3
Gun Laws and the Workplace This paper is intended as an informative discussion and resource about Texas open carry law and concealed handgun laws and how the application of such laws can affect the workplace for title professionals, their employees and customers. This paper will discuss the applicable laws regarding handguns in the workplace in addition to who can obtain a license to carry a handgun, and specific requirements of business owners choosing to prohibit employees and customers from carrying a handgun on the business property. THIS PAPER IS NOT A DEFINITIVE EXPLANATION OF THE LAW AND SHOULD NOT BE CONSTRUED OR RELIED UPON AS LEGAL ADVICE. I. The New Open Carry Law During the 84 th Texas Legislature, the Texas House and Texas Senate passed House Bill 910, otherwise known as the Open Carry Law. Signed by Governor Greg Abbott, and effective on January 1, 2016, the Texas Open Carry Law authorizes individuals that have an active state-issued license to carry, or that currently hold a concealed handgun license, to openly carry a handgun in plain view in a public place as long as the handgun is carried in a shoulder or belt holster. HB 910 eliminated the distinction between concealed carry license and open carry license. The Concealed Handgun License (CHL), which was permitted since 2011, is now called a License to Carry (LTC). A LTC is now required to carry a handgun, openly or concealed, in any place not expressly prohibited by law. A handgun is defined as a subset of a firearm and means any firearm that is designed, made, or adapted to be fired with one hand. 1 Existing CHL holders may continue to carry with a valid license, while new applicants will be required to complete training on the use of restraint holders and methods to ensure the secure carry of openly carried handguns. 2 Unconcealed handguns, loaded or unloaded, must be carried in a shoulder or belt holster. 3 The Texas Department of Public Safety describes a well restrained handgun (1) will generally not fall from the holster during movement or activity of the person; (2) is not easily removed by someone other than the person carrying the handgun; and (3) is still readily available by the person carrying the handgun. 4 Texas gun laws regarding who can carry and where handguns can be carried have not changed, but the new laws do provide private business owners and property owners the authority, subject to certain requirements, to restrict handguns on their private property or on the business premises, where handguns would be otherwise permitted under Texas Penal Code 30.06 and 30.07. 1 Texas Penal Code 46.01(a)(5) 2 Texas Government Code 411.188 3 Texas Penal Code 46 4 www.txdps.state.tx.us 2016 Texas Land Title Institute Gun Laws and the Workplace 4
II. Who Can Carry a Handgun and Where Texas protects the right to bear arms under Article I, Section 23 of the Texas Constitution, but the Texas Legislature has created laws to set restrictions on who can carry a handgun and where guns can be carried. 5 Texas law requires an individual to hold a LTC in order to legally carry a handgun, either in a concealed manner or partially or wholly visible manner in a shoulder or belt holster. A valid LTC will be issued by the Texas Department of Public Safety (DPS) to a person that meets the requirements of Texas Government Code 411.172. 6 As one would expect, peace officers, certain security guards commissioned by the Texas Board of Private Investigators and Private Security Agencies, members of the armed forces, corrections officers, and officers of a court are exempt in certain circumstances. 7 A handgun license initially lasts for four (4) years, expiring on the birthdate of the license holder. Thereafter, a renewed licensed expires five (5) years after the date that the previous license expired, also on the birthdate of the license holder. 8 While a LTC is required to openly or conceal carry in most public places in Texas, there are State and Federal laws that still restrict a license holder from carrying a handgun in certain places or situations. For example, handguns are statutorily not permitted at schools, sporting events, bars, voting locations, correctional facilities and secure areas of airports. 9 There are other times when carrying a handgun is permitted under the authority of Subchapter H, Chapter 411, Government Code, but a situation will cause the carrying to be prohibited. For example, if a license holder is intoxicated, 5 Article I, Section 23, TX Constitution: Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime. 6 Texas Government Code 411.172 details the eligibility requirements as follows: (1) is a legal resident of this state for the six-month period preceding the date of application under this subchapter or is otherwise eligible for a license under Section 411.173(a); (2) is at least 21 years of age; (3) has not been convicted of a felony; (4) is not charged with the commission of a Class A or Class B misdemeanor or equivalent offense, or of an offense under Section 42.01, Penal Code, or equivalent offense, or of a felony under an information or indictment; (5) is not a fugitive from justice for a felony or a Class A or Class B misdemeanor or equivalent offense; (6) is not a chemically dependent person; (7) is not incapable of exercising sound judgment with respect to the proper use and storage of a handgun; (8) has not, in the five years preceding the date of application, been convicted of a Class A or Class B misdemeanor or equivalent offense or of an offense under Section 42.01, Penal Code, or equivalent offense; (9) is fully qualified under applicable federal and state law to purchase a handgun; (10) has not been finally determined to be delinquent in making a child support payment administered or collected by the attorney general; (11) has not been finally determined to be delinquent in the payment of a tax or other money collected by the comptroller, the tax collector of a political subdivision of the state, or any agency or subdivision of the state; (12) is not currently restricted under a court protective order or subject to a restraining order affecting the spousal relationship, other than a restraining order solely affecting property interests; (13) has not, in the 10 years preceding the date of application, been adjudicated as having engaged in delinquent conduct violating a penal law of the grade of felony; and (14) has not made any material misrepresentation, or failed to disclose any material fact, in an application submitted pursuant to Section 411.174. 7 Texas Penal Code 46.03(b)&(h) and 46.15 8 Texas Government Code 411.183(a) & (b) 9 Texas Penal Code 46.035 2016 Texas Land Title Institute Gun Laws and the Workplace 5
it doesn t matter if the handgun is holstered openly or concealed, it s still illegal and prohibited. 10 And not smart! III. Statutory Notice to Prohibit Handguns Notwithstanding the statutory requirements and prohibitions discussed above, Texas new gun laws give private property owners and business owners the right to restrict both open carry and/or concealed carry on their premises, with penal consequences to violators. Statutory notice requirements of the private property owner or business owner is a primary focal point of the new gun laws under Texas Penal Code 30.06 Trespass by Holder of License to Carry Concealed Handgun and Texas Penal Code 30.07 Trespass to Licensed Holder with an Openly Carried Handgun. As such, private businesses, like title companies, have to decide whether to prohibit handguns on their premises. If a property owner or business owner wants to prohibit the carrying of open carry and/or concealed carry handguns, or both, the owner must post the appropriate statutory notices required under Texas Penal Code 30.06 and 30.07. Concealed Carry HB 910 modified the existing Texas Penal Code 30.06 to prohibit a license holder from carrying a concealed handgun if they receive proper notice by the landowner. Specifically, 30.06 says: A license holder commits an offense if the license holder: (1) carries a concealed handgun under the authority of Subchapter H, Chapter 411, Government Code, on property of another without effective consent; and (2) received notice that entry on the property by a license holder with a concealed handgun was forbidden. 11 A person receives notice when the owner or someone with apparent authority to act for the owner provides either oral or written notice to the person that concealed carry is prohibited on the premises. 12 Property owners and business owners must decide what method they are going to use to provide notice. Nothing in the statute prevents an owner from deciding not to post written notice and instead choosing to verbally notify anyone that is carrying a handgun. For example, an owner may choose to have the receptionist verbally notify or hand-deliver a note card to each guest entering the premises instructing them that concealed carry is not permitted. If an owner chooses to post written notice, the owner must meet the statutory requirements in order for the notice to be legally effective. 13 Keep in mind, any previously used written communication prohibiting concealed carry used will need to 10 Texas Penal Code 46.035(d) 11 Texas Penal Code 30.06(a) 12 Texas Penal Code 30.06(b) 13 Texas Penal Code 30.06(c)(3) 2016 Texas Land Title Institute Gun Laws and the Workplace 6
be updated with the new required language under 30.06, which allows written communication in the form of a card or other document or to post a sign. 14 The card, document or sign, at minimum, must state the following verbatim: "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." 15 If a sign is used to provide notice, then that sign must be (1) written in both English and Spanish; (2) appear in contrasting colors with block letters at least one inch in height; and (3) be displayed in a conspicuous manner clearly visible to the public. 16 Contrasting is not well defined within the statute, however it is typically black writing on a white background or white writing on black background. Some businesses are choosing to have the sign etched in glass. Specifics on what satisfies compliance with the contrasting colors requirement may be an issue for courts or the legislature to determine in the future. You may preface the sign with Weapons of Any Kind Are Prohibited or All Weapons Are Prohibited on These Premises, but it must also include the required statutory language above. An example of the 30.06 sign is attached as Exhibit A. In a busy office like most title companies, posting a sign at the entrance of the premises and visible to the public would be more practical than attempting to ascertain that an individual is carrying a concealed handgun and notifying them verbally or with a card. Open Carry The statutory language and notice requirements for the new 30.07 are almost identical to 30.06. Under Texas Penal Code 30.07, a property owner or someone with apparent authority to act for the owner should provide either oral or written notice that open carry is forbidden on the premises. 17 The business owner or property owner is free to choose between providing verbal or written notice. As with the notice regarding concealed carry, written notice for prohibiting open carry is recommended. The card, document or sign, at minimum, must state the following verbatim: "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." 18 14 Texas Penal Code 30.06(c)(3) 15 Texas Penal Code 30.06(c)(3)(A) 16 Texas Penal Code 30.06(c)(3)(B) 17 Texas Penal Code 30.07(b) 18 Texas Penal Code 30.07(c)(3)(A) 2016 Texas Land Title Institute Gun Laws and the Workplace 7
If a sign is being used to provide notice, then that sign must be (1) written in both English and Spanish; (2) appear in contrasting colors with block letters at least one inch in height; and (3) displayed in a conspicuous manner clearly visible to the public at each entrance to the property. 19 This is notably different than the required notice for concealed handguns. 30.07 (Open Carry) requires the sign to be posted at each entrance to the property, which is vastly different than 30.06 (Concealed Carry) which requires the notice to be clearly visible to the public. When prohibiting open carry, the required signage must be presented at every single entrance, not just visible to the public as is the case for prohibiting concealed carry on the premises. 20 An example of the 30.07 sign is attached as Exhibit B. Property Owner s Decisions vs. Business Owner s Decision It is important to note in some cases, a private business owner s decision to permit concealed or open carry of handguns on the premises may be overruled by the property owner s prohibition. If the business owner does not own the building or property, it is advisable to review your office lease or speak with your building owner. If the building owner chooses to prohibit handguns and the building has the proper signage posted, then the property owner s rights to prohibit handguns would trump the private business owner s rights to permit it. IV. Special Concerns for Employees While business owners have to decide whether to permit visitors, vendors, guests and other third parties to openly carry handguns on company premises, employers must also decide whether to allow employees with a LTC to openly carry or concealed carry on company premises. HB 910 does not prevent an employer from prohibiting its employees from carrying handguns on the premises of the business. 21 Employers have several additional considerations before deciding whether they will permit or prohibit employees from bringing guns to work. This is not an all or nothing decision. An employer may allow employees to openly carry holstered handguns on the business premises, but prohibit visitors from carrying any handguns. Alternatively, an employer may allow employees and visitors to carry concealed handguns on its premises, but prohibit open carry altogether. Employers will have to contemplate a balance between ensuring a safe workplace for all employees and staying within the parameters of the law. When deciding whether to prohibit its employees from carrying guns in the workplace, 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. 19 Texas Penal Code 30.07(c)(3)(B) 20 Texas Penal Code 30.07(c)(3)(B)(iii) emphasis added 21 Government Code 411.203 2016 Texas Land Title Institute Gun Laws and the Workplace 8
Guns in Employee s Cars The definition of premises is the crucial element in making sure an employer is staying within the confines of the Texas Labor Code. Premises is defined as the building or portion of a building and does not include an employee s locked, privately owned motor vehicle in a parking lot, parking garage, or other parking area the employer provides for employees. 22 Texas Labor Code 52.061 does not allow a private employer to prohibit its employees, who hold a license to carry a handgun, from keeping it in a locked, privately owned vehicle in a parking lot, parking garage, or other parking area the employer provides for its employees. 23 As such, if an employer decides to prohibit handguns on the premises, its employees may still carry and store a handgun in their privately owned vehicle. Even without a LTC, a person may still carry a handgun in their car as long as it is concealed. A person with a LTC may store their handgun in their car, either concealed or visible. However, if it is visible it must be in either a belt or shoulder holster. Guns on Business Premises Texas Labor Code specifically states that 52.061 does not prohibit an employer from prohibiting an employee who holds a license to carry a handgun under Subchapter H, Chapter 411, Government Code, or who otherwise lawfully possesses a firearm, from possessing a firearm the employee is otherwise authorized by law to possess on the premises of the employer's business. 24 As such, the decision is ultimately the employers. Whether an employer owns the property or not is something to consider because the employers rights might be limited by the property owners rights. Overall, Texas law allows the employer to set the rules for its workplace. If the employer owns the property then they can decide whether to permit or prohibit the carrying of weapons by their employees on the premises and if they wish to allow any exceptions. For example, an employer can decide to prohibit employees from carrying handguns, but make an exception for security guards or an employee with military/law enforcement background. Some employers may make exceptions for certain employees that have been trained to assist with an active shooter or other threats of violence in the workplace. If any exceptions will be allowed, they should be clearly stated with the employer s gun policy. If the employer does not own the property, they can still prohibit their employees from carrying handguns on the premises, but if they wish to permit the carrying of handguns, they will need to make sure that decision does not conflict with the property owner s prohibition. The same rules apply for when a business owner does not own the property. The employer s right to permit guns in the workplace are overruled by the property 22 Texas Penal Code 46.035(f)(3) 23 Texas Labor Code 52.061 24 Texas Labor Code 52.062(b) 2016 Texas Land Title Institute Gun Laws and the Workplace 9
owner s right to prohibit them on the premises. If an employee comes to work with a handgun because their employer allows it, the employee could be charged with trespassing by the building owner under Texas Penal Code 30.06 and/or 30.07. Best practice suggests that revising company policies, obtaining written employee acknowledgment and posting ample and appropriate signage, no matter how redundant, is the best way to comply with Texas gun laws. V. Liability Considerations Texas Penal Code 30.06 and 30.07 does not impose any affirmative duty on a business owner to enforce prohibition on concealed carry or open carry. However, if a business owner voluntarily undertakes to provide security measures for the benefit of its customers, Texas tort law says they must do so with reasonable care. 25 Further, if one undertakes to make premises safe for others, he or she owes a duty to use due care to make the premises safe. 26 As such, a business owner should implement security measures regarding weapons on the premises by adopting a clear policy regarding the enforcement of the prohibition of handguns. For example, the City of Dallas has encouraged citizens to call 911 only when a clear violation of HB 910. Violations can include removal of the gun from a secured holster, if the gun holder appears intoxicated or when the gun holder is obviously committing a crime or acting in a reckless or suspicious manner. 27 It is recommended to update employee handbooks to make it clear to employees what is that is intended to be the rule and policy relating to handguns on business premises. Further, it is important to train employees of any new procedures or policies and have each employee provide written acceptance so all security measures that are put into place are understood by the employees and consistently followed. This is the case with all security measures, not just those concerning handguns. Texas law limits certain liability exposure and duties of an employer. The 2011 concealed handgun law expressly granted employers immunity from civil actions arising from firearms and ammunition stored in an employee's vehicle, the new law grants no such immunity to employers for civil actions arising from employees' openly carried weapons. For example, if an openly carried handgun is not prohibited in the workplace and an employee s gun is discharged injuring another employee, the employer may be held liable for damages. However, if a handgun stored in the employee s car is discharged injuring another employee, then the employer will enjoy some protection from liability pursuant to Texas Labor Code 52.063, which states: Except in cases of gross negligence, a public or private employer, or the employer s principal, officer, director, employee, or agent, is not liable in a civil action for 25 Garner v. McGintry, 771 S.W.2d 242, 246 (Tex. Civ. App. Austin 1989, no writ); Castillo v. Sears, Roebuck & Co., 663 S.W.2d 60, 66 (Tex. Civ. App. San Antonio 1983, writ ref d n.r.e.) 26 Dukes v. Philip Johnson/Alan Ritchie Architects, P.C., 252 S.W.3d 586, 597 (Tex. Ct. App. 2008) 27 www.dallascitynews.net/opencarry 2016 Texas Land Title Institute Gun Laws and the Workplace 10
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 under this subchapter. 28 This immunity from prosecution only extends to hand guns employers are required to allow on their property so its application is noteworthy, but very limited. It is also significant that an employer has no duty to: (1) patrol, inspect, or secure any parking area provided for employees or any privately owned motor vehicle located in a parking area; or, (2) investigate, confirm, or determine an employee s compliance with laws related to the ownership or possession of a firearm or the transportation and storage of a firearm or ammunition. 29 It is worth mentioning, that the new laws do not create a private cause of action for an employee against their employers. If an employee feels that their right to openly carry under the new laws is being infringed upon by their employer, their only recourse would be to report any alleged violation to the Attorney General s Office. The new gun laws leave many liability questions unanswered for private business owners and employers in Texas. Many issues potentially involving significant legal exposure have yet to play out and be resolved in the courts. VI. The Gun Debate The gun debate did not go away with the passage of HB 910. Title Companies are required to pick a side either to permit or prohibit handguns on their premises. Because of the divided nature of the gun debate, there are advantages and disadvantages to prohibiting guns at your business and there will be customers and employees that either agree or disagree with your decision to prohibit handguns or not. Title companies are a relationship business and customers, whether they are real estate agents, lenders, buyers or sellers, will have an opinion as to what you decide. For example, some real estate agents will believe a title company s prohibition of a real estate agent s right to carry a handgun is a statement of whether the title company has a concern for realtor safety. Some real estate agents feel buying a home is a high stress situation as it is and do now want openly carried guns to make it more stressful. Employees will argue that they want to feel safe in the event of an active shooter situation, while other employees have said the mere sight of guns makes them feel unsafe and fearful of a common workplace dispute escalating to violence. Some individuals against carrying handguns will argue that there is no evidence that carrying a handgun deters crime and reduces violence. And others will claim that carrying a handgun is an extra layer of protection for them personally. 28 Texas Labor Code 52.063 29 Texas Labor Code 52.063 2016 Texas Land Title Institute Gun Laws and the Workplace 11
While most business owners would rather avoid taking a position on the gun debate, that may no longer be possible. At a minimum, business owners and property owners will have to decide whether to prohibit handguns on its premises. VII. Conclusion It is important to review current policies to ensure that they are in compliance with the new laws. To prevent misunderstandings and address security concerns, business owners and employers wishing to prohibit guns should make their policies clear and conspicuous to everyone who enters their property, including employees, visitors, and other third parties. 2016 Texas Land Title Institute Gun Laws and the Workplace 12
EXHIBIT A Example of 30.06 Concealed Carry Signage 2016 Texas Land Title Institute Gun Laws and the Workplace 13
EXHIBIT B Example of 30.07 Open Carry Signage 2016 Texas Land Title Institute Gun Laws and the Workplace 14