Can a Texas public housing authority evict a tenant just for legally owning or keeping a gun at home?

Texas AG Opinion DM-0071: Public Housing Authorities and Tenant Firearm Possession

Plain-English summary

A state senator asked whether a municipal housing authority, specifically the San Antonio Public Housing Authority, could adopt a rule evicting a tenant for possessing a firearm, including a firearm found in the tenant's own home. The Attorney General concluded it could not.

The analysis turned on section 215.001 of the Local Government Code, which says a municipality may not adopt regulations relating to the transfer, private ownership, keeping, transportation, licensing, or registration of firearms. Subsection (b) preserves a city's authority under other law to regulate things like the discharge of firearms or carrying them at certain public places, but a rule reaching mere possession did not fit any of those exceptions. The question, then, was whether a municipal housing authority counts as the municipality for purposes of this prohibition. The opinion said yes. Texas courts had uniformly treated municipal housing authorities as divisions of the cities that created them, subject to laws applicable to municipalities, in cases like Miers v. Housing Auth. of Dallas and Aetna Casualty & Surety Co. v. Glidden Co., and prior AG opinions had followed that view. The opinion presumed the legislature knew of that settled meaning when it adopted section 215.001 in 1985, and it found nothing in chapter 392 (which governs housing authorities) carving them out of the prohibition.

The opinion then checked federal law and found nothing that would override the state restriction under the supremacy clause. Federal public housing statutes provide for loans and contributions to public housing agencies and require leases to allow termination for criminal activity, but the opinion read that as supporting eviction for illegal firearm possession, not for possession that was otherwise lawful. Because section 215.001 settled the matter, the opinion declined to reach the senator's other questions about the scope of chapter 392 powers and the right to keep and bear arms under article I, section 23 of the Texas Constitution.

Currency note

This opinion was issued in 1991. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Texas firearm-preemption law and public housing law have both changed since 1991, and federal public housing rules on firearms and lease terminations have developed considerably. Verify current law before relying on anything here.

Common questions

Could a Texas public housing authority evict a tenant for legally owning a gun?
Not under this 1991 opinion. The opinion concluded section 215.001 barred a municipal housing authority from adopting a rule evicting a tenant for the otherwise legal possession of a firearm.

Why was the housing authority treated like the city itself?
Texas courts had consistently held that a municipal housing authority is a division of the municipality that created it, and is therefore subject to laws that apply to municipalities. The opinion applied that settled rule to the firearm-regulation prohibition in section 215.001.

Did federal public housing law change the result?
No. The opinion found no federal statute or regulation that conflicted with section 215.001 or showed a congressional intent to exempt federally funded housing authorities from the state restriction. Federal law's requirement that leases allow termination for criminal activity supported eviction for illegal possession, not for lawful possession.

Did the opinion decide whether such a rule would violate the right to bear arms?
No. Because section 215.001 already settled that the authority could not adopt the rule, the opinion expressly did not reach the questions about chapter 392 powers or article I, section 23 of the Texas Constitution.

Background and statutory framework

Section 215.001(a) of the Local Government Code prohibits a municipality from adopting regulations relating to the transfer, private ownership, keeping, transportation, licensing, or registration of firearms, ammunition, or firearms supplies; subsection (b) leaves intact a municipality's authority under other law over matters like discharge, use during an insurrection or disaster, and carrying at certain public places. The provision was first adopted in 1985 (Acts 1985, 69th Leg., ch. 838). Municipal housing authorities are governed by chapter 392 of the Local Government Code (formerly article 1269k, V.T.C.S.); section 392.011 creates an authority in each municipality but bars it from acting until the city's governing body declares a need, and its powers are vested in commissioners appointed by the mayor (§§ 392.031, 392.051). The opinion relied on Texas decisions treating such authorities as divisions of municipalities, including Miers v. Housing Auth. of Dallas (construing the condemnation-bond exception now in Property Code § 21.021), Aetna Casualty & Surety Co. v. Glidden Co. (penal-bond statute, article 5160, V.T.C.S.), and Housing Auth. of San Antonio v. Newton, along with prior AG opinions MW-132 (1980), JM-573 (1986), JM-687 (1987), and C-760 (1966). It contrasted out-of-state decisions treating authorities as separate entities. On federal law it cited 42 U.S.C. § 1437 et seq., the public housing agency definition in § 1437a(b)(6), the criminal-activity lease provision in § 1437d(l)(5), the contract provision in § 1437d(c)(4)(C), 24 C.F.R. § 811 et seq., the supremacy clause (U.S. Const. art. VI, cl. 2), and English v. General Electric Co. for the preemption test. The Texas Penal Code provisions on unlawful carrying and felon possession (§§ 46.02, 46.05) illustrated what counts as illegal possession.

Citations

Statutory and constitutional provisions:

• Local Gov't Code § 215.001 (municipal firearm-regulation prohibition and exceptions)
• Local Gov't Code ch. 392; §§ 392.011, 392.031, 392.051, 392.052(f)(1), 392.0565(a) (municipal housing authorities)
• Prop. Code § 21.021 (condemnation bond exception)
• Penal Code §§ 46.02, 46.05 (unlawful carrying; felon in possession)
• Tex. Const. art. I, § 23 (right to keep and bear arms)
• U.S. Const. art. VI, cl. 2 (supremacy clause)
• 42 U.S.C. §§ 1437 et seq., 1437a(b)(6), 1437d(l)(5), 1437d(c)(4)(C); 24 C.F.R. § 811 et seq. (federal public housing)
• V.T.C.S. arts. 5160, 1269k (repealed), 2368a (former statutes)

Cases:

• Housing Auth. of San Antonio v. Newton, 235 S.W.2d 197 (Tex. Civ. App.-Waco 1950, no writ)
• Miers v. Housing Auth. of Dallas, 266 S.W.2d 487 (Tex. Civ. App.-Dallas 1954, writ ref'd n.r.e.)
• Aetna Casualty & Surety Co. v. Glidden Co., 283 S.W.2d 440 (Tex. Civ. App.-Eastland 1955), rev'd on other grounds, 291 S.W.2d 315 (Tex. 1956)
• City of Paterson v. Housing Auth. of Paterson, 233 A.2d 98 (N.J. Super. Ct. Law Div. 1967)
• O'Keefe v. Dunn, 215 A.2d 66 (N.J. Super. Ct. Law Div. 1965)
• Housing Auth. of Asbury Park v. Richardson, 346 F. Supp. 1027 (D.N.J. 1972)
• Tumulty v. Jersey City, 155 A.2d 148 (N.J. Super. Ct. App. Div. 1959)
• Housing Auth. v. City of Los Angeles, 243 P.2d 515 (Cal. 1952)
• State ex rel. Great Falls Housing Auth. v. City of Great Falls, 100 P.2d 915 (Mont. 1940)
• English v. General Electric Co., 110 S. Ct. 2270 (1990)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0071
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1991/dm0071.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
Attorney General

December 31, 1991

Honorable Gene Green
Chairman
Jurisprudence Committee
Texas State Senate
P. O. Box 12068
Austin, Texas 78711

Opinion No. DM-71

Re: Authority of public housing authority to regulate tenants' legal possession of firearms (RQ-150)

Dear Senator Green:

You ask several questions regarding whether a municipal housing authority may adopt a rule under which a tenant of a public housing project it operates would be evicted "if the tenant possessed a firearm, including eviction for the possession of a firearm found in the tenant's home."[1] You ask first whether section 215.001 of the Local Government Code would restrict such action by a municipal housing authority. Subsection (a) of section 215.001 provides:

A municipality may not adopt regulations relating to the transfer, private ownership, keeping, transportation, licensing, or registration of firearms, ammunition, or firearms supplies.

(Emphasis added.)

Subsection (b) of section 215.001 provides that subsection (a) "does not affect the authority a municipality has under another law" to regulate, e.g., "the discharge of firearms," "the use of firearms in the case of an insurrection, riot, or natural disaster," or "the carrying of firearms" at certain public places or gatherings. A regulation restricting mere "possession" of a firearm would not fall within any of the exceptions set out in subsection (b) to the subsection (a) prohibition.[2]

The applicability of section 215.001 to a municipal housing authority depends partly on whether a municipal housing authority is a division or agent of a municipality, such that it would be subject to laws applicable to municipalities. The provisions of state law regarding the creation and operation of municipal housing authorities, Acts 1937, 45th Leg., ch. 462, are now found in chapter 392 of the Local Government Code. Section 392.011 provides that a municipal housing authority "is created in each municipality in the state" as "a public body corporate and politic" but that it "may not transact business or exercise its powers until the governing body of the municipality declares by resolution that there is a need for the authority." Local Gov't Code § 392.011(a) - (c). Powers of the authority are vested in five commissioners appointed by the mayor of the municipality. Id. §§ 392.031, 392.051.

While courts in some other jurisdictions have characterized municipal housing authorities created under provisions similar to those in chapter 392 as separate entities,[3] Texas authorities presented with the issue have uniformly held municipal housing authorities to be "divisions" of municipalities and, as such, subject to the laws applicable to municipalities. Miers v. Housing Auth. of Dallas, 266 S.W.2d 487 (Tex. Civ. App.--Dallas 1954, writ ref'd n.r.e.); Aetna Casualty & Surety Co. v. Glidden Co., 283 S.W.2d 440 (Tex. Civ. App.--Eastland 1955), rev'd on other grounds, 291 S.W.2d 315 (Tex. 1956); Attorney General Opinions JM-687 (1987); JM-573 (1986); MW-132 (1980).

The Miers court dealt in part with the issue whether a municipal housing authority was within the scope of a statute excepting "this state, a county or a municipal corporation, or an irrigation, water improvement, or water power control district" from a bond requirement where there was pending litigation in condemnation actions. See now Prop. Code § 21.021. The court found the housing authority within the exception for "municipal corporations," stating that the authority "is a division of the City of Dallas and exists only with the consent of the City of Dallas." Miers, 266 S.W.2d at 490.

The Aetna court considered the applicability to a municipal housing authority contract of the provisions of article 5160, V.T.C.S., which require construction contractors with "this State or its counties or school districts or other subdivisions thereof or any municipality therein" to execute a "Penal Bond." 283 S.W.2d at 441. The court cited Miers and stated: "[w]e believe that the words 'any municipality' as used in said statute were intended to and did include Housing Authorities created under Article 1269k." 283 S.W.2d at 441, 442. (Prior to their placement in chapter 392 of the Local Government Code in 1987, the provisions relating to municipal housing authorities were found in now repealed article 1269k, V.T.C.S. See Acts 1987, 70th Leg., ch. 149, §§ 1, 49 (codification and repealer respectively).)

Attorney General Opinion MW-132 (1980) considered whether former article 2368a, V.T.C.S., providing for competitive bidding requirements for cities' and counties' purchases, applied to purchases by municipal housing authorities. Citing Miers and Aetna, the opinion concluded that article 2368a "applies to housing authorities as divisions of cities." (The provisions of article 2368a relating to municipal purchases were codified in 1987 in chapter 252 of the Local Government Code. See Acts 1987, 70th Leg., ch. 149, supra.)

Attorney General Opinions JM-687 (1987) and JM-573 (1986) adhered to the conclusion of Attorney General Opinion MW-132. Those opinions concluded that purchases made by a municipal housing authority under the Consolidated Supply Program administered by the federal government were nevertheless subject to the provisions of former article 2368a respecting municipal purchases.[4] See also Attorney General Opinion C-760 (1966) (county housing authority must comply with statutes applicable to counties where they do not conflict with provisions specific to housing authority; overruling Attorney General Opinion O-6339 (1945) which had held that a municipal housing authority vehicle was not within statute providing for exempt license plates for city vehicles).

The provision, now in Local Government Code section 215.001, that a "municipality may not adopt regulations relating to the . . . ownership [or] keeping . . . of firearms," was first adopted in 1985. Acts 1985, 69th Leg., ch. 838, § 1, at 2904. It must be presumed that in enacting the provisions of section 215.001 the legislature was aware of the scope state court and attorney general opinions had theretofore given to the term "municipality" -- specifically that the term included a municipal housing authority, the latter being a "division" of a municipality. We find no state statute, in chapter 392 or elsewhere, evidencing a legislative intent that municipal housing authorities not be subject to the prohibition in section 215.001.[5]

Nor do we find anything in the federal law or regulations pertaining to municipal housing authorities which under the supremacy clause, U.S. Const. art. VI, cl. 2, would restrict the applicability of section 215.001 to the proposed regulation in question. Federal law provides for the making of loans and contributions of federal funds to "public housing agencies." 42 U.S.C. § 1437 et seq.; see also 24 C.F.R. § 811 et seq. "[P]ublic housing agency" is defined as "any State, county, municipality, or other governmental entity or public body (or agency or instrumentality thereof) which is authorized to engage in or assist in the development or operation of low-income housing." 42 U.S.C. § 1437a(b)(6); see also Local Gov't Code § 392.052(f)(1) (housing authority may "borrow money or accept grants or other financial assistance from the federal government for, or in aid of, a housing project in the authority's area of operation"). We find no federal provisions applicable to housing authorities which are in conflict with the provisions of section 215.001 or which indicate a congressional intent that federally-funded housing authorities not be subject to such state law restrictions. See English v. General Electric Co., 110 S. Ct. 2270 (1990) (test of whether state law is superseded under supremacy clause).

We do note that title 42, section 1437d(l)(5), of the United States Code requires local housing agency leases to "provide that any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises . . . engaged in by a public housing tenant, any member of the tenant's household, or any guest or other person under the tenant's control, shall be cause for termination of tenancy." (Emphasis added.) This provision might support a municipal housing authority regulation, to be incorporated in authority leases, providing for eviction for the criminal possession of a firearm. It would not in our opinion, however, supersede the section 215.001 restrictions with respect to the regulation in question, which, as we understand it, would restrict possession that was otherwise legal. See Penal Code §§ 46.02 (carrying certain weapons on or about one's person a crime), 46.05 (crime for certain felons to "possess" a firearm "away from the premises where [they] live").[6]

Accordingly, we conclude that municipal housing authorities are, as "divisions" of municipalities, subject to the provisions of section 215.001. They would be precluded by subsection (a) of section 215.001 from adopting a regulation restricting tenants' otherwise legal possession of firearms. Such a regulation would "relat[e] to" the "private ownership" or "keeping" of firearms within the subsection (a) prohibition and would not fall within any of the exceptions to the subsection (a) prohibition set out in subsection (b) of section 215.001. Nor does applicable federal law supersede the section 215.001 prohibition.

You also ask whether a municipal housing authority's powers under chapter 392 of the Local Government Code are broad enough to permit adoption of the regulation in question, and whether such a regulation would violate the provisions of article I, section 23, of the Texas Constitution relating to the right to "keep and bear arms." In view of our conclusion that a municipal housing authority is precluded by section 215.001 from adopting such a regulation, we need not reach these other issues here.

SUMMARY

Section 215.001 of the Local Government Code prohibits a municipal housing authority from adopting a regulation providing for a tenant's eviction for the otherwise legal possession of a firearm.

Very truly yours,

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by William Walker
Assistant Attorney General

[1] You refer specifically to the San Antonio Public Housing Authority. See Housing Auth. of San Antonio v. Newton, 235 S.W.2d 197 (Tex. Civ. App.--Waco 1950, no writ) (San Antonio Public Housing Authority is a municipal housing authority).

[2] As we have not been supplied with the text of the regulation in question, we necessarily base this opinion on your description of that proposed regulation.

[3] See, e.g., City of Paterson v. Housing Auth. of Paterson, 233 A.2d 98 (N.J. Super. Ct. Law Div. 1967); O'Keefe v. Dunn, 215 A.2d 66 (N.J. Super. Ct. Law Div. 1965), cited in Housing Auth. of Asbury Park v. Richardson, 346 F. Supp. 1027, 1033 (D.N.J. 1972); Tumulty v. Jersey City, 155 A.2d 148 (N.J. Super. Ct. App. Div. 1959); Housing Auth. v. City of Los Angeles, 243 P.2d 515 (Cal. 1952); State ex rel. Great Falls Housing Auth. v. City of Great Falls, 100 P.2d 915 (Mont. 1940).

[4] The legislature has, since the issuance of Attorney General Opinions JM-687 and JM-573, specifically exempted such housing authority purchases from state law purchasing requirements. See note 5, infra.

[5] Compare Local Gov't Code § 392.0565(a), added in 1989 (authority exempt from state law to the extent necessary to allow authority's participation in federal purchasing programs). Acts 1989, 71st Leg., ch. 1, § 41(a), at 107.

[6] We note also that a local public housing agency receiving federal funds must enter into a contract with the United States Secretary of Housing and Urban Development. In such a contract, the secretary may make provisions pertaining, inter alia, to "the establishment of effective tenant-management relationships designed to assure that satisfactory standards of tenant security and project maintenance are formulated." 42 U.S.C. § 1437d(c)(4)(C). As we do not have a particular contract before us, we do not address here the effect of provisions therein, if any, bearing on an authority's regulation of tenants' possession of firearms.