Can you carry a gun in a Texas school's parking lot, driveway, or sidewalk?

Plain-English summary

Senator John Whitmire, who chaired the Senate Committee on Criminal Justice, asked the AG how the open-carry and weapons-free-zone provisions of the Penal Code applied to school-district property. His two questions came down to one practical concern: do the outdoor parts of a school district's property (parking lots, driveways, sidewalks, and walkways) count as places where carrying a handgun is prohibited?

The AG worked through how two statutes fit together. Penal Code section 30.07 creates a trespass offense for a license holder who openly carries a handgun onto property after receiving notice that entry is forbidden, but it does not apply to property owned or leased by a governmental entity unless that property is a "premises or other place" where carrying is prohibited under section 46.03 or 46.035. Section 46.035(f)(3) defines "premises" narrowly, as a building or portion of a building, and expressly leaves out driveways, streets, sidewalks, walkways, parking lots, parking garages, and other parking areas. So under that narrow definition, a school's "premises" means the buildings, not the surrounding grounds.

The key, the AG explained, is that section 30.07 says "premises or other place." Section 46.03(a)(1) is the "other law" that supplies an additional prohibited place: it prohibits weapons on "any grounds or building on which an activity sponsored by a school ... is being conducted." So when a school-sponsored activity is being conducted on outdoor grounds (the AG's example was a high school band rehearsal in a parking lot), those grounds fall within section 46.03(a)(1) and weapons are prohibited there during the activity. When no school activity is being conducted on those areas, section 46.03 does not prohibit weapons there. The AG added that whether, and where, a school-sponsored activity is occurring is a fact question that an attorney general opinion does not resolve.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG 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. The Penal Code's weapons provisions (including sections 30.07, 46.02, 46.03, and 46.035) have been amended since 2015, and Texas later changed its handgun-carry laws, so confirm the current statutes before relying on these specifics.

What the opinion meant for those who asked

School districts and administrators (as the opinion described it): The opinion described section 46.03(a)(1) as prohibiting weapons on any school-district grounds, including outdoor areas like parking lots and walkways, while a school-sponsored activity is being conducted there. It described those same outdoor areas as not covered by the prohibition when no school activity is occurring on them.

Law enforcement (as the opinion described it): The opinion tied the prohibition to whether a school-sponsored activity is being conducted at a particular spot, and described the question of whether and where such an activity is occurring as a fact question outside the scope of an attorney general opinion.

Handgun license holders (as the opinion described it): The opinion described the narrow definition of "premises" in section 46.035(f)(3) as excluding driveways, sidewalks, parking lots, and similar grounds, but explained that section 46.03(a)(1) separately reaches those grounds while a school-sponsored activity is being conducted on them.

Common questions

Does the law treat a school parking lot the same as a school building?
Not exactly. The AG explained that the narrow definition of "premises" in section 46.035(f)(3) covers the buildings and leaves out parking lots, driveways, sidewalks, and walkways. But section 46.03(a)(1) separately prohibits weapons on "any grounds" where a school-sponsored activity is being conducted, which can include those outdoor areas.

So can someone have a handgun in a school's parking lot?
The AG's answer turned on whether a school-sponsored activity is being conducted there. If, for example, a band rehearsal is being held in the parking lot, that area falls within section 46.03(a)(1) and weapons are prohibited during the rehearsal. If no school activity is occurring on that area, section 46.03 does not prohibit weapons there.

Who decides whether a school activity is happening on a given spot?
The AG said that whether, and where on school grounds, a school-sponsored activity is occurring involves fact questions that are beyond the purview of an attorney general opinion.

Did this opinion cover college campuses?
No. The AG noted that subsection 46.03(a)(1)(B) carves out the premises of institutions of higher education, and because the senator asked about K-12 school districts, the opinion did not address carrying handguns on college campus grounds.

Background and statutory framework

Section 30.07 of the Penal Code creates the offense of trespass by a license holder with an openly carried handgun, but excepts property owned or leased by a governmental entity that is not a "premises or other place" where carrying is prohibited under section 46.03 or 46.035 (Tex. Penal Code § 30.07). Section 46.03 identifies places where weapons, including handguns, are prohibited, among them "the physical premises of a school or ... any grounds or building on which an activity sponsored by a school ... is being conducted," whether the school is public or private (Tex. Penal Code § 46.03(a)(1)). Section 46.035(f)(3) defines "premises" to mean a building or portion of a building and excludes driveways, streets, sidewalks, walkways, parking lots, parking garages, and other parking areas (Tex. Penal Code § 46.035(f)(3)).

Reading the statutes together, the AG concluded that because section 30.07(e) reaches a "premises or other place," and section 46.03(a)(1) supplies that other prohibited place, weapons are prohibited on school grounds, including the otherwise-excluded outdoor areas, while a school-sponsored activity is being conducted there. The AG relied on the rule that a statute's plain language is the best indicator of legislative intent (Zanchi v. Lane, 408 S.W.3d 373, 376 (Tex. 2013)) and on a prior opinion recognizing that "premises" excludes specified grounds around the building (Tex. Att'y Gen. Op. No. DM-363 (1995)). The AG also noted, in a footnote, that the opinion addressed only the specific handgun-carry provisions and that a separate provision, section 46.02(a), does not apply to a person licensed to carry a handgun (Tex. Penal Code §§ 46.02(a), 46.15(b)).

Citations

Statutory provisions:

• Tex. Penal Code § 30.07 (trespass by a license holder with an openly carried handgun; governmental-entity exception)
• Tex. Penal Code § 46.03(a)(1) (weapons prohibited on the premises of a school and on grounds where a school-sponsored activity is being conducted)
• Tex. Penal Code § 46.035(f)(3) (definition of "premises" excluding driveways, sidewalks, parking lots, and similar areas)
• Tex. Penal Code § 46.05(a) (prohibited weapons referenced in section 46.03(a))
• Tex. Penal Code § 46.02(a) (unlawful carrying of weapons, referenced in a footnote)
• Tex. Penal Code § 46.15(b) (nonapplicability to license holders, referenced in a footnote)
• Tex. Gov't Code ch. 411 (handgun licensing)

Cases:

• Zanchi v. Lane, 408 S.W.3d 373, 376 (Tex. 2013)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0050
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2015/kp0050.pdf

Original opinion text

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

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

December 21, 2015

The Honorable John Whitmire Opinion No. KP-0050
Chair, Committee on Criminal Justice
Texas State Senate Re: Application of Penal Code sections
Post Office Box 12068 30.07 and 46.03, relating to the open carry of
Austin, Texas 78711-2068 handguns, to school districts (RQ-0054-KP)

Dear Senator Whitmire:

You ask two questions relating to the open-carry handgun provisions of Penal Code sections 30.07 and 46.03. [1] Specifically, you ask whether "the trespass provision of the new 'Open Carry' law under section 30.07 of the Texas Penal Code ... appl[ies] to school district property, including parking lots, driveways, sidewalks and walkways[.]" Request Letter at 1. You also ask whether Penal Code subsection "46.03(a)(1) prohibit[s] the carrying of firearms on the grounds of a school district where educational activity is being conducted to include parking lots, driveways, sidewalks or walkways of the school property[.]" Id. at 2. Because of the relationship between the two provisions about which you ask, we address your questions together.

Section 30.07 of the Penal Code creates the offense of trespass by a license holder with an openly carried handgun. See TEX. PENAL CODE § 30.07(a). A person licensed to carry a handgun under chapter 411 of the Government Code commits an offense if the person enters onto property with an openly carried handgun after receiving notice that entry was forbidden. Id. § 30.07(a)(1), (2). Section 30.07 contains an exception providing that it does not apply to openly carrying a handgun on property that is "owned or leased by a governmental entity and is not a premises or other place on which the license holder is prohibited from carrying the handgun under Section 46.03 or 46.035." Id. § 30.07(e). Penal Code section 46.03 identifies places where weapons, including handguns, are prohibited. See id. § 46.03(a) (prohibiting "a firearm, illegal knife, club, or prohibited weapon listed in Section 46.05(a)"). Among the places identified as ones from which weapons are prohibited is "the physical premises of a school or ... any grounds or building on which an activity sponsored by a school . . . is being conducted, ... whether the school or educational institution is public or private." Id. § 46.03(a)(1) (emphasis added). [2]

You state that there is concern that the term "premises" in subsection 30.07(e) may "have the same restrictive definition" as in Penal Code section 46.035. Request Letter at 2. Subsection 46.035(f)(3) defines "premises" to mean a "building or a portion of a building" and expressly excludes "any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area." TEX. PENAL CODE § 46.035(f)(3); see also Tex. Att'y Gen. Op. No. DM-363 (1995) at 4 (recognizing in this context that "premises" excludes specified grounds around the building). Under subsection 46.035(f)(3), the physical premises of a school encompass only the school buildings and not the surrounding grounds. Nonetheless, subsection 30.07(e) refers to "premises or other place" which means that it includes places other than school buildings if other law so provides. TEX. PENAL CODE § 30.07(e). And Penal Code subsection 46.03(a)(1) is other law providing that weapons are prohibited from "any grounds or building on which an activity sponsored by a school ... is being conducted." Id. § 46.03(a)(1); see also Zanchi v. Lane, 408 S.W.3d 373, 376 (Tex. 2013) (stating that a "statute's plain language" is the best indicator of legislative intent). To the extent "any grounds" under subsection 46.03(a)(1) may include a public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area, such places are ones from which weapons are prohibited by law when an activity sponsored by a school is being conducted. TEX. PENAL CODE § 46.03(a)(1). Conversely, section 46.03 does not prohibit weapons on such places when a school-sponsored activity is not being conducted.

The question whether, and where on school grounds, a school-sponsored activity is occurring involves the resolution of fact questions that are beyond the purview of an attorney general opinion. Tex. Att'y Gen. Op. No. GA-0827 (2010) at 2 ("This office does not determine questions of fact in an attorney general opinion ...."). For instance, if a high school utilizes a school parking lot for a band rehearsal, that parking lot would likely fall within the scope of subsection 46.03(a)(1), prohibiting weapons during the time of the rehearsal. Yet, the other parking areas at the school where school activities are not occurring would not fall within subsection 46.03(a)(1) and would not be places where weapons are prohibited. See Tex. Att'y Gen. Op. No. DM-363 (1995) at 4 (recognizing that a concern before the Legislature in excluding parking lots and other similar areas from "premises" was to make it not a crime for a person with a concealed handgun to drive into the driveway of a place where handguns were prohibited).

In sum, Penal Code subsection 46.03(a)(1) prohibits weapons, including handguns, from places on which a school-sponsored activity is being conducted, which places can include grounds otherwise excluded from the definition of "premises" such as public or private driveways, streets, sidewalks or walkways, parking lots, parking garages, or other parking areas. [3]

SUMMARY

Subsection 46.03(a)(1) of the Penal Code prohibits handguns from places on which a school-sponsored activity is occurring, which places can include grounds otherwise excluded from the definition of "premises" such as public or private driveways, streets, sidewalks or walkways, parking lots, parking garages, or other parking areas.

Very truly yours,

KEN PAXTON
Attorney General of Texas

CHARLES E. ROY
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable John Whitmire, Chair, Senate Criminal Justice Comm., to Honorable Ken Paxton, Tex. Att'y Gen. at 1-2 (Sept. 22, 2015), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] Subsection 46.03(a)(1)(B) excepts from this prohibition the carrying of handguns "on the premises of an institution of higher education or private or independent institution of higher education." TEX. PENAL CODE § 46.03(a)(1)(B). As you ask about "property or grounds of K-12 school districts," we do not address any issues related to the carrying of handguns on college campus grounds. See Request Letter at 1.

[3] It bears noting that this opinion deals only with the specific statutory provisions on carrying handguns. There is also a broader statutory provision prohibiting the carrying of a handgun, illegal knife, or club in certain circumstances. TEX. PENAL CODE § 46.02(a). This prohibition does not apply to a person licensed to carry a handgun. See Act of May 29, 2015, 84th Leg., R.S., ch. 437, § 49(b)(6), 2015 Tex. Gen. Laws 1706, 1722 (to be codified at TEX. PENAL CODE § 46.15(b)).