Can Texas Medical Board investigators carry a concealed handgun on the job?

Plain-English summary

The executive director of the Texas Medical Board asked the Attorney General whether the Board could allow its investigators who hold a concealed handgun license (CHL) to carry a concealed handgun while on duty, without subjecting the Board to liability. The Board's investigators sometimes go into potentially dangerous situations, and the Board was considering a resolution that would permit, but not require, those with a CHL to carry for protection.

On whether the Board may do this, the Attorney General concluded that no law stands in the way. Occupations Code section 154.057(c) says an investigator the Board commissions as a peace officer may not carry a firearm, but the Board did not intend to commission its investigators as peace officers, and that firearm prohibition applies only to peace-officer investigators. Section 154.057 dates to 1983, before the CHL statutes existed, and says nothing about CHL holders, so it does not bar a non-peace-officer investigator from carrying under the CHL law while on duty.

On liability, the opinion gave a partial answer and was candid about its limits. Adopting the resolution would be a legislative function, and the Tort Claims Act does not waive a governmental unit's immunity for its legislative functions, so the policy decision itself would not expose the Board to suit. But the question of liability for an investigator actually using a handgun is different. The Tort Claims Act does not waive immunity for an employee's intentional torts, including an intentional handgun use, yet a court has held that negligent use of a weapon can be a "use of property" that waives immunity. So depending on the facts, a court could find the Act waives the Board's immunity for an investigator's negligent handgun use. As for Government Code section 411.208, which immunizes various government actors for damage caused by a license holder, the opinion noted no court had construed it; while its plain language might extend immunity to a state employer for an employee CHL holder's negligent use, the AG said it could not provide definitive guidance given the absence of authority.

Currency note

This opinion was issued in 2013. 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

The Texas Medical Board (as the opinion described it): The opinion told the Board it was not prohibited from allowing non-peace-officer investigators to carry a concealed handgun under the CHL law on duty, and that adopting such a resolution, as a legislative act, would not waive the Board's immunity for the policy decision. It did not give the Board a definitive answer on liability for an investigator's actual negligent use of a handgun.

State agencies and government employers (as the opinion described it): The opinion described the legislative-function immunity for adopting a policy, the Tort Claims Act's non-waiver for intentional torts, and the possibility that negligent weapon use could waive immunity under the Act. On section 411.208, it described the statute's apparent licensing-process purpose and its broader plain language, but expressly declined to predict how a court would apply it to an employer.

Investigators and other on-duty CHL holders (as the opinion described it): The opinion treated a non-peace-officer investigator's right to carry under the CHL law as unaffected by section 154.057(c), which reaches only peace-officer investigators. It did not address whether any individual would face personal liability; its liability analysis concerned the Board's immunity.

Common questions

Does Texas law let a state agency allow employees with a CHL to carry on duty?
The opinion concluded it found no law prohibiting the Texas Medical Board from allowing its non-peace-officer investigators to carry a concealed handgun under the CHL law while on duty.

Why didn't the rule barring investigators from carrying firearms apply?
The opinion explained that Occupations Code section 154.057(c) bars only an investigator the Board commissions as a peace officer from carrying a firearm. The Board did not intend to commission its investigators as peace officers, and the statute predates and does not address CHL holders.

Would adopting the policy expose the Board to lawsuits?
The opinion said adopting the resolution is a legislative function, and the Tort Claims Act does not waive immunity for a governmental unit's legislative functions, so the policy decision itself would not waive immunity.

Is the Board protected if an investigator misuses a handgun?
The opinion did not give a definitive answer. It explained the Act does not waive immunity for intentional handgun use, but a court has found negligent weapon use can waive immunity, so the result could depend on the facts. It said it could not predict whether section 411.208 would immunize a state employer, because no court had construed that statute.

Background and statutory framework

The opinion read Occupations Code section 154.057(c) using the plain-language and harmonization principles from TGS-NOPEC Geophysical Co. v. Combs and Valero Transmission Co. v. Hays Consol. Indep. Sch. Dist., concluding the firearm prohibition reaches only peace-officer investigators. It noted the CHL statutes were enacted in 1995 and section 154.057's predecessor in 1983.

On immunity, the opinion worked through the Tort Claims Act: section 101.021(2) (limited waiver for use of tangible property), section 101.052 (no waiver for legislative functions, with Lopez v. Trevino treating policy-setting as legislative), and section 101.057 (no waiver for intentional torts, with Tex. Dept. of Pub. Safety v. Petta on intentional handgun use). It cited City of Houston v. Vargas for the proposition that negligent weapon use can be a "use of property" that waives immunity. Finally, it quoted Government Code section 411.208(a)-(b) and explained that, with no court having construed it, the office could not give definitive guidance, while noting that an agency rule might be challenged under the Administrative Procedure Act (section 2001.038).

Citations

Cases:

• TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011)
• Valero Transmission Co. v. Hays Consol. Indep. Sch. Dist., 704 S.W.2d 857, 864 (Tex. App.-Austin 1985, writ ref'd n.r.e.)
• Lopez v. Trevino, 2 S.W.3d 472, 474 (Tex. App.-San Antonio 1999, pet. dism'd w.o.j.)
• Tex. Dept. of Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001)
• City of Houston v. Vargas, 193 S.W.3d 143, 147 (Tex. App.-Houston [1st Dist.] 2006, pet. denied)

Statutes:

• Tex. Occ. Code Ann. § 154.057(c) (West 2012); § 154.057
• Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (West 2005); § 101.052; § 101.057
• Tex. Gov't Code Ann. § 411.208(a)-(b) (West 2012); § 411.208(a)(2); § 2001.038 (West 2008)

Other authority:

• Act of May 16, 1995, 74th Leg., R.S., ch. 229, 1995 Tex. Gen. Laws 1998, 1998-2015 (enacting CHL statutes)
• Act of May 30, 1983, 68th Leg., R.S., ch. 974, § 12, 1983 Tex. Gen. Laws 5291, 5304

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1008
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2013/ga1008.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 10, 2013

Ms. Mari Robinson Opinion No. GA-1008
Executive Director
Texas Medical Board Re: Whether the Texas Medical Board may allow its
Post Office Box 2018 investigators who hold a concealed handgun license
Austin, Texas 78768-2018 to carry a concealed handgun while on duty without
subjecting the Board to liability (RQ-1104-GA)

Dear Ms. Robinson:

You ask whether the Texas Medical Board (the "Board") may allow its investigators who hold a concealed handgun license ("CHL") to carry a concealed handgun while on duty without subjecting the board to liability.[1]

You state that the Board has investigators whose duties may take them into potentially dangerous situations. Request Letter at 1. You further inform us that the Board wishes to recognize the right of an investigator who has a CHL to carry a concealed handgun for protection and is considering adopting a resolution that would "allow its investigators to carry concealed handguns [while on duty] but at the same time indicate that such action is not required by the Board or the employees' job descriptions[.]" Id. at 2. In your first two questions, you ask if the Board may legally adopt such a resolution. Id.

You specifically ask about section 154.057 of the Occupations Code, which authorizes the Board to employ investigators to investigate complaints. Id. at 1-2. Subsection (c) provides: "The board may commission investigators as peace officers to enforce this subtitle. An investigator commissioned as a peace officer under this subsection may not carry a firearm or exercise the powers of arrest." TEX. OCC. CODE ANN. § 154.057(c) (West 2012) (emphasis added). You inform us that the Board does not intend to commission its investigators as peace officers. Request Letter at 1. Nevertheless, the Board is concerned that section 154.057(c) might be construed to prohibit the Board from allowing non-peace officer investigators to carry a concealed handgun pursuant to CHL laws. Id. at 1-3.

Courts construing an unambiguous statute "adopt the interpretation supported by its plain language unless such an interpretation would lead to absurd results." TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011). Moreover, when construing seemingly incongruous statutes, courts attempt to harmonize them to "give effect to both by assigning each a meaning that will permit each to stand." Valero Transmission Co. v. Hays Consol. Indep. Sch. Dist., 704 S.W.2d 857, 864 (Tex. App.-Austin 1985, writ ref'd n.r.e.). The prohibition against carrying a firearm in section 154.057(c) of the Occupations Code does not apply to anyone other than an investigator who the Board has commissioned as a peace officer. See TEX. OCC. CODE ANN. § 154.057(c) (West 2012). Further, section 154.057 was enacted in 1983, more than a decade before the CHL statutes were first enacted.[2] Section 154.057 does not address CHL holders, and therefore does not prohibit a non-peace officer investigator from carrying a concealed handgun pursuant to the CHL law. In sum, we are not aware of any law that prohibits the Board from allowing its non-peace officer investigators to carry a concealed handgun according to the CHL law while the investigators are on duty.

You also ask whether the Board would be protected by sovereign immunity from suit and liability if it adopts the resolution. Request Letter at 2-3. You ask specifically about section 101.021(2) of the Tort Claims Act ("TCA"). Id. at 3; see also TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2) (West 2005). Section 101.021(2) provides a limited waiver of a governmental unit's immunity for the "condition or use of tangible personal or real property." TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2) (West 2005). The TCA does not waive immunity for "a claim based on . . . the legislative functions of a governmental unit." Id. § 101.052 (emphasis added). The Board's adoption of a resolution would constitute a legislative function and would not constitute a waiver of immunity under the TCA. See Lopez v. Trevino, 2 S.W.3d 472, 474 (Tex. App.-San Antonio 1999, pet. dism'd w.o.j.) (holding that the establishment of general policy is a legislative function).[3]

Whether the Board would be immune from suit or damages for injury caused by an investigator carrying a concealed handgun pursuant to a CHL poses a different question. The TCA does not waive immunity for damages caused by an employee's intentional torts, including damages from an intentional use of a handgun. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.057 (West 2005). See also Tex. Dept. of Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001) (holding that the claim that an officer shot at complainant's tires alleges intentional conduct that "fit[s] squarely within section 101.057's exclusion"). However, a court has held that negligent use of a weapon could constitute the use of property under the TCA and therefore give rise to a waiver of immunity under the TCA. City of Houston v. Vargas, 193 S.W.3d 143, 147 (Tex. App.-Houston [1st Dist.] 2006, pet. denied). Consequently, depending on the facts, a court could conclude that the TCA waives the Board's immunity from suit or liability for an investigator's negligent use of a handgun.

Finally, you ask about the immunity provided by section 411.208 of the Government Code, which provides:

(a) A court may not hold the state, an agency or subdivision of the state, an officer or employee of the state, a peace officer, or a qualified handgun instructor liable for damages caused by:
(1) an action authorized under this subchapter or a failure to perform a duty imposed by this subchapter; or
(2) the actions of an applicant or license holder that occur after the applicant has received a license or been denied a license under this subchapter.
(b) A cause of action in damages may not be brought against the state, an agency or subdivision of the state, an officer or employee of the state, a peace officer, or a qualified handgun instructor for any damage caused by the actions of an applicant or license holder under this subchapter.

TEX. GOV'T CODE ANN. § 411.208(a)-(b) (West 2012) (emphasis added). No court decision has addressed this statute. Reading the statute as a whole, the apparent purpose of section 411.208 is to immunize government actors who implement the CHL licensing process against claims based on the later actions of licensees and applicants. See id. The statute's plain language, however, is not limited to agencies involved in the CHL licensing process and extends immunity to all state agencies for the actions of a CHL holder. Thus, a court could conclude that section 411.208(a)(2) provides immunity to a state employer for the actions of an employee who holds a CHL and uses a handgun negligently while on the job. Given the lack of legal authority interpreting section 411.208, however, we are unable to provide you with definitive guidance.

SUMMARY

Texas law does not prohibit the Texas Medical Board from allowing its investigators who are not commissioned as peace officers to carry a concealed handgun pursuant to the concealed handgun law while the investigators are on duty.

Adopting a concealed handgun policy that is consistent with state law would not waive the Texas Medical Board's immunity for its own actions of a legislative character. However, we cannot predict whether a court would construe section 411.208 of the Government Code as granting a state employer immunity for the negligent use of a handgun by an employee who holds a concealed handgun license.

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

[1] Letter from Ms. Mari Robinson, Exec. Dir., Tex. Med. Bd., to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Jan. 7, 2013), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] See Act of May 16, 1995, 74th Leg., R.S., ch. 229, 1995 Tex. Gen. Laws 1998, 1998-2015 (enacting CHL statutes); Act of May 30, 1983, 68th Leg., R.S., ch. 974, § 12, 1983 Tex. Gen. Laws 5291, 5304 (enacting predecessor to section 154.057(c) of the Occupations Code).

[3] If the resolution constitutes an agency rule, however, its validity or applicability might be subject to challenge in a declaratory judgment action under the Administrative Procedure Act. See TEX. GOV'T CODE ANN. § 2001.038 (West 2008).