Carry In or Carry On? What Employers Need to Know About the Texas Open Carry Law
Published by Eric A. Welter, M. Wilson Stoker and Sarah Tudor Glaser on April 5, 2016
The new Texas Open Carry law brings new questions, challenges and liabilities to companies who have employees or operations in Texas. This article focuses on four key points that every employer should bear in mind.
On January 1, 2016, the Texas Open Carry law came into effect, which permits handgun license holders in Texas to legally carry their guns in visible holsters on their hip or shoulder. Before Open Carry came into effect, license holders were required to conceal their guns.
With the benefit of three months behind us, we’re rounding up the top four things employers should know about open carry in Texas.
1. Open Carry is the status quo: You have to opt out.
Business owners and employers must decide whether to permit open carry on their premises. The decision you make will likely be based on a number of factors including your existing business policies and personal perspective, as well as taking into consideration the type of business, the demographics of customers, and any potential risk factors for your business (not only actual risks, but also perceived risks that could frighten away customers or reduce business with one or more segments of the population).
Those businesses that wish to prohibit openly carried firearms must display, at every entrance to their premises, signage mandated by Texas Penal Code § 30.07. Additionally, (although it is not a new law) those businesses that wish to prohibit concealed firearms must also display similar language mandated by Texas Penal Code § 30.06.
The language for both variants is as follows:
- 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.
- 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 signs must be displayed in a conspicuous manner at each entrance to the building in contrasting colors with block letters at least one inch in height and you must state the policy in both English and Spanish. For those concerned about compliance with the technical details of the statute, a quick online search can help you locate a number of vendors selling pre-made signs which are fully compliant and that can be purchased and installed.
2. This is a critical time to update your employee handbook.
While the posting of signs is sufficient to notify your employees that open carry is prohibited on your premises, consider also reviewing and updating your employee handbook to ensure it represents the company’s policy on the new law (regardless of whether the policy is to allow or deny open carry).
While you likely already have a “no weapons” policy, review the language in the policy to ensure it covers open carry, both on your premises also also while your employees are doing business for you off premises. Consider notifying your employees that you expect they will have no weapons on the premises as well as in company cars, at company-sponsored events, or while off premises on company business.
3. Employers cannot ban employees from bringing and leaving firearms in the workplace parking lot.
Note that Texas Penal Code Section 52.061 restricts a business from prohibiting employees who are otherwise lawfully in possession of a handgun or ammunition from transporting or storing it in a locked, privately owned motor vehicle in a parking lot, garage, or other parking area provided by the employer.
Consequently, no handbook policy can prevent employees from bringing a handgun onto the premises as long as they are in lawful possession of it and it stays locked within their car. (There are certain exceptions to this general rule, such as the property of a public school district or a private school.)
Although you cannot prevent employees from leaving their firearm in their own locked car, you can take comfort in the fact that Texas Penal Code Section 52.063 provides immunity to employers (except in cases of gross negligence) from civil liability for personal injury, death, property damages, or any other damages resulting from or arising out of an event involving a firearm that the employer was required to allow on the property under the Penal Code provision discussed above.
The statute does not create any responsibility on the part of employers to patrol or inspect the parking area or to ensure that employees are complying with laws related to the ownership or possession of the firearm or ammunition.
4. There are additional considerations for bars, restaurants and hotels.
Bars: It is a felony to carry a firearm onto the premises of a business that derives more than 51% of their profits from the sale of alcoholic beverages for on-premises consumption (i.e. bars and nightclubs). Although it is the duty of the license holder (i.e. the person who carries the gun) to comply with this law, Government Code Section 411.204 requires the business owner to post a sign giving notice that it is unlawful to carry a handgun on the premises. The sign must be in both English and Spanish, with block letters at least an inch tall, and must include the number “51” printed in solid red at least five inches in height.
Restaurants: If any alcohol is consumed on premises, serious consideration of whether you will prohibit concealed or open carried weapons is advised. Permit holders know that Texas Penal Code Section 46.035 prohibits them from carrying a concealed handgun while intoxicated. Nonetheless, many business owners who serve alcohol on premises may be uncomfortable with patrons carrying handguns on the property at the same time as they are consuming alcoholic beverages. If this is you, consider posting the Section 30.07 and Section 30.06 signs listed above.
Hotels: Hotels are generally subject to open carry like any other business and must post the Section 30.07 and 30.06 signs at each entrance to inform guests if open and/or concealed carry is prohibited. Hotels have an additional duty: under Texas Occupations Code § 2155.103, the hotel must make its policy regarding the possession, storage, and transportation of firearms available on its Internet reservation site and if a guest makes a reservation by phone, the hotel’s written confirmation of the reservation must include information about how guests may access and review the applicable policy. If the hotel also has a bar and/or restaurant, hotel owners and operators should review the sections above as well.
Note: Businesses that serve alcohol can refer to the TABC website for copies of signs and more detailed information.
Whenever governments seek to more aggressively declare, protect or expand the individual rights of the citizens within their jurisdictions, an increased burden on businesses is likely to be felt. In the case of Texas Open Carry, new requirements and expectations impact businesses in their roles both as employers and as providers of services to customers. Employers based in or doing business in Texas should perform a thorough review of their policies and select a strategy for consistent implementation promptly, through both on-premises signage and employee policy and procedure revisions and notifications to all impacted personnel.