It’s high time the Texas Legislature “re-open the hood” and get to work fixing state statutes governing the carrying of handguns. And recent news suggests they will do just that.
In August, The State Fair of Texas made news by announcing a new policy that would prohibit the carrying of “all firearms,” to include “Holders of a License to Carry,” Constitutional Carry, Concealed Carry, and Open Carry of firearms anywhere on the fairgrounds” (emphasis original).
This development prompted backlash from both the legislative and executive branches of state government and resulted in ongoing litigation in the judicial branch.
A group of 70 Republicans, including incumbent State Representatives, Senators, and nominees for the state legislature, signed a letter to the State Fair Board of Directors “encouraging” the Board to rescind its policy.
Lt. Governor Dan Patrick similarly took to X condemning the State Fair of Texas and the City of Dallas for “banning law abiding citizens in Fair Park from exercising their 2nd Amendment rights.” Somewhat prophetically, Patrick concluded, “we trust our courts will uphold this sacred right” in the event of future litigation.
That litigation came just two weeks later when Texas Attorney General Ken Paxton sued the City of Dallas for “unlawfully prohibiting firearms from government-owned public property in violation of Texas law.” Because the State Fair was set to begin just a month away on September 27th, Paxton sought temporary injunctive relief, considering the Fair would start much sooner than the litigation could likely be resolved.
When the Dallas County Judge with original jurisdiction over the case denied Paxton’s plea for temporary injunction in late September, Paxton sought an expedited appeal.
On the evening of September 26th, the Texas Supreme Court denied the Attorney General’s emergency motion, effectively allowing the firearm prohibition to remain in place this year.
Along with the denial, Justices Blacklock, Hecht, and Young issued a scathing concurring opinion which likely signals legislative changes in the upcoming 89th legislature.
The Court was very quick to point out a 2016 Attorney General Opinion, KP-0108, where the OAG advised the Erath County Attorney that while state agencies and political subdivisions of Texas may not prohibit Texans from lawfully carrying firearms on their property, private entities may do so, and state law is silent on whether private entities leasing public property are subject to the same statutory restrictions on prohibiting citizens’ lawful carry of firearms.
Although Blacklock’s concurring opinion is barbed in its tone toward the arguments of the State, the true object of the Court’s wrath appears to be the legislature. After all, the Attorney General can only argue what’s plainly written in the law.
Paxton’s now-withdrawn KP-0108 describes in great detail what’s generally considered the conservative approach to an appellate judiciary, advising, “courts recognize that the words the Legislature chooses are ‘the surest guide to legislative intent,’” and that under state law, as written at the time, the statutory protections for Texans’ second amendment rights at issue apply “only to a state agency or political subdivision of the State and do[] not address whether a private entity” may prohibit the carrying of handguns when the private entity leases the premises from a governmental entity.
In other words, Paxton’s own 2016 analysis advised that Texas Courts would likely exercise judicial restraint and avoid “reading language into the statute beyond what the Legislature included.”
In my view, Paxton likely argued the best case he could in light of the current statutes and his well-reasoned prior ruling on the issue. Although there may have been room to improve the argument on the emergency temporary injunction, the fact is that when enacting these statutory protections for Texans carrying on public property, the 84th legislature did not explicitly address the gray area at issue here – when a private entity leases publicly-owned land.
The OAG is expected to issue another Opinion in response to joint opinion request RQ-0558-KP from Mayes Middleton and State Representative Dustin Burrows asking for further clarification on the issue. We will see what factual and legal distinctions the OAG can draw from the 2016 case. But the fact that KP-0108 has been withdrawn sends a strong signal that the OAG sees the need to take a more aggressive legal approach in the absence of clear statutory guidance.
That will most likely require cooperation with the legislature. In the midst of the infighting that has consumed Texas elected Republicans, particularly since the 2023 impeachment of General Paxton in the Texas House, and subsequent acquittal in the Texas Senate, this issue uniquely offers an olive branch opportunity for Republicans in both chambers of the legislature to work together with the Office of the Attorney General to clarify these provisions of state law intended to protect Texans’ right to keep and bear arms on publicly owned property.
