Can a Texas general-law city ban firearm discharge inside its original city limits?

Plain-English summary

Texas cities sometimes want to ban or restrict the firing of guns within their boundaries, but state law puts limits on that authority for land outside or recently brought into a city. State Senator Jeff Wentworth asked the Attorney General whether a Type A general-law municipality (one of the basic forms of Texas city government) may adopt and enforce an ordinance banning firearm discharge on property inside its original corporate limits.

The opinion concluded that it may. A municipality is authorized to adopt and enforce ordinances for the good government, peace, or order of the municipality, and chapter 229 of the Local Government Code recognizes a municipality's potential authority to regulate the discharge of firearms within its limits. The catch the senator pointed to is section 229.002, which says a municipality may not apply a firearm-or-weapon-discharge regulation in its extraterritorial jurisdiction, or in an area annexed after September 1, 1981, to certain weapons (a shotgun, air rifle, pistol, BB gun, or bow and arrow) discharged on a tract of 10 acres or more, more than 150 feet from a residence or occupied building on another property, in a way not reasonably expected to send a projectile across the tract's boundary.

The opinion read that limit as not reaching the original city limits. By its terms, section 229.002 applies to a municipality's extraterritorial jurisdiction and to certain annexed property; it does not mention property within the municipality's original boundaries. The opinion walked through why those are different concepts: incorporation creates a city and sets its original boundaries, extraterritorial jurisdiction is by definition the unincorporated area just outside the city, and annexation brings outside land into the city. Because the Legislature is presumed to choose its words carefully and to omit words on purpose, the absence of any reference to the original city limits meant section 229.002 does not prohibit a Type A general-law ordinance from regulating firearm or weapon discharge in the city's original boundaries.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

Type A general-law cities (as the opinion held for them): The opinion told them that section 229.002 did not stand in the way of an ordinance regulating firearm or weapon discharge on property within the city's original corporate limits.

On the extraterritorial jurisdiction and annexed land (as the opinion described it): The opinion left intact section 229.002's limit as it applies to a city's extraterritorial jurisdiction and to land annexed after September 1, 1981, for the specified weapons and large-tract conditions.

Property owners inside original city limits (what the opinion meant for them): Under the opinion, a Type A general-law city's firearm-discharge regulation could reach property within the city's original boundaries; the statutory carve-out for large rural tracts did not protect land in the original city limits.

Common questions

Can a Type A Texas general-law city prohibit firing a gun within its original limits?
Yes. The opinion concluded section 229.002 does not prohibit a Type A general-law ordinance from regulating firearm or weapon discharge in an area within the city's original city limits.

What does section 229.002 actually limit?
The opinion explained it limits a city's firearm-discharge regulation in the city's extraterritorial jurisdiction and in land annexed after September 1, 1981, for certain weapons discharged on tracts of 10 acres or more under the conditions the statute lists.

Why doesn't that limit apply inside the original city limits?
Because section 229.002 names only the extraterritorial jurisdiction and annexed areas, not the original boundaries, and the opinion presumed the Legislature omitted the original city limits on purpose.

Does a general-law city have authority to pass such an ordinance at all?
Yes. The opinion noted a municipality may adopt ordinances for the good government, peace, or order of the city, and that chapter 229 recognizes its potential authority to regulate firearm discharge within its limits.

Background and statutory framework

A municipality may adopt and enforce ordinances for the good government, peace, or order of the municipality. Tex. Loc. Gov't Code Ann. § 51.001 (West 2008); see id. §§ 51.012, 54.001. Chapter 229 recognizes a municipality's potential authority to regulate the discharge of firearms within its limits. Id. § 229.001(b)(2). Section 229.002 bars a municipality from applying a firearm-or-weapon-discharge regulation in its extraterritorial jurisdiction or in an area annexed after September 1, 1981, to certain weapons discharged on a tract of 10 acres or more, more than 150 feet from a residence or occupied building on another property, in a manner not reasonably expected to cross the tract's boundary. Id. § 229.002 (West 2008); see also Tex. Agric. Code Ann. § 251.005(c) (West Supp. 2010).

Incorporation, annexation, and extraterritorial jurisdiction are distinct concepts. A municipality's extraterritorial jurisdiction is the unincorporated area contiguous to its corporate boundaries. Tex. Loc. Gov't Code Ann. § 42.021 (West 2008). Annexation authority generally reaches property in the extraterritorial jurisdiction, and annexed land becomes part of the municipality. Id. §§ 43.051, 43.023(g), 43.024(d); see Elliott Common Sch. Dist. No. 48 v. Cnty. Bd. of Sch. Trustees, 76 S.W.2d 786, 789 (Tex. Civ. App.-Texarkana 1934, writ dism'd). Because the Legislature is presumed to include and omit words for a purpose, the opinion concluded the original city limits fall outside section 229.002's limitation. Kappus v. Kappus, 284 S.W.3d 831, 835 (Tex. 2009); In re M.N., 262 S.W.3d 799, 802 (Tex. 2008).

Citations

Statutes:

• Tex. Loc. Gov't Code Ann. § 51.001 (West 2008)
• Tex. Loc. Gov't Code Ann. § 51.012
• Tex. Loc. Gov't Code Ann. § 54.001
• Tex. Loc. Gov't Code Ann. § 229.001(b)(2)
• Tex. Loc. Gov't Code Ann. § 229.002 (West 2008)
• Tex. Loc. Gov't Code Ann. § 42.021 (West 2008)
• Tex. Loc. Gov't Code Ann. § 43.051
• Tex. Loc. Gov't Code Ann. § 43.023(g)
• Tex. Loc. Gov't Code Ann. § 43.024(d)
• Tex. Agric. Code Ann. § 251.005(c) (West Supp. 2010)

Cases:

• Elliott Common Sch. Dist. No. 48 v. Cnty. Bd. of Sch. Trustees, 76 S.W.2d 786, 789 (Tex. Civ. App.-Texarkana 1934, writ dism'd)
• Kappus v. Kappus, 284 S.W.3d 831, 835 (Tex. 2009)
• In re M.N., 262 S.W.3d 799, 802 (Tex. 2008)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0862
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2011/ga0862.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

June 16, 2011

The Honorable Jeff Wentworth Opinion No. GA-0862
Chair, Select Committee on
Open Government Re: Authority of a Type A general-law municipality
Texas State Senate to adopt and enforce an ordinance prohibiting the
Post Office Box 12068 discharge of certain firearms or other weapons on
Austin, Texas 78711-2068 property located within its original corporate limits
(RQ-0937-GA)

Dear Senator Wentworth:

You ask about the authority of a Type A general-law municipality "to adopt and enforce a firearm discharge ban on property located within its original corporate boundaries."[1] A municipality is authorized to adopt and enforce an ordinance "for the good government, peace, or order of the municipality." TEX. LOC. GOV'T CODE ANN. § 51.001 (West 2008). See also id. §§ 51.012 (authority of a Type A general-law municipality to adopt "an ordinance, act, law, or regulation, not inconsistent with state law, that is necessary for the government, interest, welfare, or good order of the municipality as a body politic"), 54.001 (general enforcement authority of municipalities). Chapter 229 of the Local Government Code recognizes the potential authority of a municipality to "regulate the discharge of firearms within the limits of the municipality." Id. § 229.001(b)(2).[2]

You note, however, that section 229.002 of the Local Government Code creates a general limitation on such authority:

A municipality may not apply a regulation relating to the discharge of firearms or other weapons in the extraterritorial jurisdiction of the municipality or in an area annexed by the municipality after September 1, 1981, if the firearm or other weapon is:

(1) a shotgun, air rifle or pistol, BB gun, or bow and arrow discharged:

(A) on a tract of land of 10 acres or more and more than 150 feet from a residence or occupied building located on another property; and

(B) in a manner not reasonably expected to cause a projectile to cross the boundary of the tract[.]

Id. § 229.002 (emphasis added); see Request Letter at 1-2.

The limitation in section 229.002 expressly applies to a municipality's extraterritorial jurisdiction and to certain annexed property, but does not mention property located within the municipality's original city limits. In Texas statutes, boundaries established by municipal incorporation, annexation, and extraterritorial jurisdiction involve different concepts and authority.

Incorporation creates a municipality and establishes its original boundaries.[3] A municipality's extraterritorial jurisdiction, however, is by definition an area outside of its corporate boundaries. See TEX. LOC. GOV'T CODE ANN. § 42.021 (West 2008) (stating that "[t]he extraterritorial jurisdiction of a municipality is the unincorporated area that is contiguous to the corporate boundaries of the municipality").

Likewise, annexation is distinct from incorporation. A municipality's annexation authority is generally limited to property located in its extraterritorial jurisdiction. Id. § 43.051. Upon annexation, the area annexed by a Type A general-law municipality "becomes a part of the municipality." See id. §§ 43.023(g) (authority of Type A general-law municipality with a population over 5,000 to annex contiguous property), 43.024(d) (annexation authority of Type A general-law municipality). See also Elliott Common Sch. Dist. No. 48 v. Cnty. Bd. of Sch. Trustees, 76 S.W.2d 786, 789 (Tex. Civ. App.-Texarkana 1934, writ dism'd) (stating that "[a]s ordinarily understood 'annex' means to make an integral part of something larger").

Thus, property located in a municipality's original corporate boundaries is not property "in the extraterritorial jurisdiction of the municipality or in an area annexed by the municipality," as section 229.002 provides. TEX. LOC. GOV'T CODE ANN. § 229.002 (West 2008). In construing a statute, it is presumed that the Legislature chooses its words carefully, that words are included in a statute for a purpose, and that words not included were purposely omitted. Kappus v. Kappus, 284 S.W.3d 831, 835 (Tex. 2009); In re M.N., 262 S.W.3d 799, 802 (Tex. 2008). Accordingly, section 229.002 of the Local Government Code does not prohibit a Type A general-law municipal ordinance from regulating the discharge of a firearm or other weapon in an area that is within the municipality's original city limits.

SUMMARY

Section 229.002 of the Texas Local Government Code does not prohibit a Type A general-law municipal ordinance from regulating the discharge of a firearm or other weapon in an area that is within the municipality's original city limits.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Jeff Wentworth, Chair, Select Committee on Open Government, to Honorable Greg Abbott, Attorney General of Texas at 1, 3 (Dec. 29, 2010), https://www.oag.state.tx.us/opin/index_rq.shtml ("Request Letter").

[2] See also TEX. AGRIC. CODE ANN. § 251.005(c) (West Supp. 2010) (providing that municipal requirements do not apply to an agricultural operation on land brought within the corporate limits after a certain date unless "reasonably necessary to protect persons who reside in the immediate vicinity or persons on public property in the immediate vicinity of the agricultural operation from the danger of ... discharge of firearms or other weapons, subject to the restrictions in Section 229.002, Local Government Code").

[3] See TEX. LOC. GOV'T CODE ANN. §§ 5.901 (general-law municipality territorial requirements), 6.001-.002 (authority to incorporate as a Type A general-law municipality utilizing procedures applicable to a Type B general-law municipality), 7.001-.007 (procedures for incorporating as a Type A or Type B municipality, resulting in an order that "include[s] the boundaries of the municipality") (West 2008).