Can a Texas city or county shut down gun stores under a local disaster or emergency order?

Plain-English summary

In late March 2020, as COVID-19 spread, a number of Texas cities and counties declared local disasters and issued stay-home orders that closed businesses deemed non-essential. Some of those orders left firearms retailers off the essential list, which would have shut them down or sharply limited how they could operate. A state representative asked the AG whether local officials actually had the power to restrict firearm sales that way through an emergency declaration.

The AG said they did not. He started by acknowledging that the Government Code's disaster provisions do give local officials real emergency powers: under section 418.108, once a local disaster is declared, a county judge or mayor may control ingress and egress and the movement of persons and occupancy of premises in the disaster area. But that authority is not unlimited. Two provisions in the Local Government Code, sections 229.001 and 236.002, bar cities and counties from adopting regulations relating to the transfer, possession, ownership, storage, transportation, or sale of firearms, and to commerce in firearms. Critically, both statutes say they apply "notwithstanding any other law," which Texas courts treat as an express conflicts-of-law provision that overrides other grants of authority. The phrase "relating to" is read broadly. So the general emergency power in section 418.108 cannot be used to reach firearm sales, and any local ordinance, order, or official action that tries to is void to the extent it conflicts.

The AG added two clarifications. First, even orders that limited retail to delivery or curbside service would effectively block firearm sales, because federal law generally requires in-person transactions with a licensed dealer (the ATF Form 4473 has to be completed at the licensed premises). Second, section 229.001 does let a municipality "regulate the use of firearms" during an insurrection, riot, or natural disaster if it finds the regulation necessary for public health and safety, but the AG drew a line between use and sale: using a firearm is distinct from transferring, owning, or selling one, so the limited power to regulate use does not extend to regulating sales.

Currency note

This opinion was issued in 2020. 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.

What the opinion meant for those who asked

For Texas cities and counties writing COVID-19 disaster orders in 2020, the opinion's reading was that firearm sales were off-limits to local regulation, full stop. Local officials kept broad authority to control movement and the occupancy of premises, but the firearms-preemption statutes overrode that authority "notwithstanding any other law," so an essential-business order could not exclude gun stores in a way that restricted firearm sales, and a provision that did so was void to the extent of the conflict. For firearms retailers operating during the shutdowns, the opinion described the legal baseline: orders limiting them to delivery or curbside would, in the AG's reading, effectively prohibit lawful sales given the federal in-person transaction requirement. The opinion also flagged, without resolving, that the Governor has separate statutory authority under section 418.019 to suspend or limit firearm sales during a disaster; the AG expressly did not address that gubernatorial power, confining the opinion to municipal and county authority.

Common questions

Q: Could a Texas city close gun stores as non-essential during the COVID-19 shutdowns?
A: No. The AG concluded that Local Government Code sections 229.001 and 236.002 barred cities and counties from regulating firearm sales, and those statutes applied "notwithstanding any other law," so a disaster order could not restrict firearm sales.

Q: What about a curbside-or-delivery-only rule?
A: The AG noted that limiting firearm retail to delivery or curbside would effectively prohibit sales, because federal law generally requires the ATF Form 4473 to be completed in person at the dealer's licensed premises.

Q: Don't local officials get extra power during a declared disaster?
A: Yes, but it is bounded. Section 418.108 lets a county judge or mayor control movement and occupancy in the disaster area, but the firearms-preemption statutes override that general authority where firearm sales are concerned.

Q: Can a city ever regulate firearms during a disaster?
A: Only the "use" of firearms, and only if the city finds it necessary to protect public health and safety. The AG distinguished regulating use from regulating transfer, ownership, or sale, and said the use power does not extend to sales.

Background and statutory framework

The Government Code's emergency-management chapter (sections 418.001-.261) lets the presiding officer of a municipality or county declare a local state of disaster (section 418.108(a)), after which a county judge or mayor "may control ingress to and egress from a disaster area . . . and control the movement of persons and the occupancy of premises in that area" (section 418.108(g)). A separate provision, section 418.019, gives the Governor (not local officials) authority to suspend or limit the sale of firearms during a disaster; the AG expressly did not address that power. The firearms-preemption provisions, Local Government Code sections 229.001 and 236.002, bar municipal and county regulation relating to firearms "notwithstanding any other law," and declare any conflicting ordinance, resolution, rule, policy, or official action void (sections 229.001(a-1), 236.002(b)), with the Attorney General authorized to seek an injunction (sections 229.001(f), 236.002(f)). The AG read "relating to" broadly under RSR Corp. v. Siegmund, 309 S.W.3d 686 (Tex. App.-Dallas 2010, no pet.) and Kirby Highland Lakes Surgery Ctr., L.L.P. v. Kirby, 183 S.W.3d 891 (Tex. App.-Austin 2006, no pet.), treated "notwithstanding any other law" as an express conflicts-of-law provision under Molinet v. Kimbrell, 356 S.W.3d 407 (Tex. 2011), and applied the plain-words approach of Tex. Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628 (Tex. 2010). The federal in-person transaction requirement comes from 27 C.F.R. § 478.124(a) (Form 4473).

Citations and references

Statutory provisions:

• Tex. Gov't Code § 418.108; § 418.019
• Tex. Loc. Gov't Code § 229.001; § 236.002
• 27 C.F.R. § 478.124(a)

Cases:

• RSR Corp. v. Siegmund, 309 S.W.3d 686 (Tex. App.-Dallas 2010, no pet.)
• Kirby Highland Lakes Surgery Ctr., L.L.P. v. Kirby, 183 S.W.3d 891 (Tex. App.-Austin 2006, no pet.)
• Molinet v. Kimbrell, 356 S.W.3d 407 (Tex. 2011)
• Tex. Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628 (Tex. 2010)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0296
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2020/kp-0296.pdf

Original opinion text

March 27, 2020

The Honorable Dustin Burrows
Chair, House Ways and Means Committee
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. KP-0296

Re: Whether sections 229.001 and 236.002 of the Local Government Code prohibit municipal or county officials from restricting the sale of firearms through an emergency declaration (RQ-0341-KP)

Dear Representative Burrows:

You ask whether city or county officials may prohibit the sale of firearms through an emergency declaration that excludes firearms retailers as essential businesses.[1]

Multiple provisions within the Government Code recognize governmental entities in Texas may require additional authority during times of disaster to address emergency situations. See TEX. GOV'T CODE §§ 418.001-.261. Relevant here, the Legislature authorized the presiding officer of a governing body of a municipality or county to declare a local state of disaster. Id. § 418.108(a); see id § 418.004(6).[2] Once a local state of disaster has been declared, the "county judge or the mayor of a municipality may control ingress to and egress from a disaster area under the jurisdiction and authority of the county judge or mayor and control the movement of persons and the occupancy of premises in that area." Id. § 418.108(g). Pursuant to that authority, some counties and municipalities in Texas, in recent days, declared local disasters due to the spread of the disease COVID-19 and issued orders requiring all non-essential businesses to limit or cease operations.[3] You indicate that some of these orders exclude firearms retailers as essential businesses, thereby prohibiting or restricting those retailers from operating their businesses. See Request Letter at 1.

While the Legislature granted local officials certain emergency powers to address disaster situations, that local authority is not without limitation. Relevant to your question, provisions in the Local Government Code prohibit municipalities and counties from regulating, among other things, the transfer, possession, ownership, or sale of firearms, "notwithstanding any other law." See TEX. LOC. GOV'T CODE §§ 229.001(a), 236.002(a). Section 229.001 of the Local Government Code prohibits certain municipal regulation:

Notwithstanding any other law, . . . a municipality may not adopt regulations relating to:
(1) the transfer, possession, wearing, carrying, ownership, storage, transportation, licensing, or registration of firearms, air guns, knives, ammunition, or firearm or air gun supplies or accessories;
(2) commerce in firearms, air guns, knives, ammunition, or firearm or air gun supplies or accessories; or
(3) the discharge of a firearm or air gun at a sport shooting range.

TEX. LOC. GOV'T CODE § 229.001(a) (emphasis added). Using almost identical language, section 236.002 of the Local Government Code prohibits counties from adopting regulations related to the same matters. Id. § 236.002(a). Texas courts recognize that the phrase "relating to" is a "very broad term." RSR Corp. v. Siegmund, 309 S.W.3d 686, 701 (Tex. App.-Dallas 2010, no pet.); see also Kirby Highland Lakes Surgery Ctr., L.L.P. v. Kirby, 183 S.W.3d 891, 898 (Tex. App.-Austin 2006, no pet.) (explaining that courts have construed the phrase "related to" within the arbitration context to be "extremely broad" and "capable of expansive reach" (citations and quotation marks omitted)). In addition, when the Legislature uses the phrase "notwithstanding any other law," courts construe that language as "an express, unambiguous conflicts-of-law provision." Molinet v. Kimbrell, 356 S.W.3d 407, 414 (Tex. 2011). Thus, although section 418.108 of the Government Code may generally allow municipal and county officials to "control the movement of persons and the occupancy of premises" in a local disaster area, notwithstanding that general authority, emergency orders from local officials may not relate to the transfer, possession, ownership or sale of firearms.[4]

In addition to prohibiting county or municipal regulation in these areas, the Legislature articulated the effect of a municipal or county regulation related to the transfer, possession, ownership or sale of firearms. Any attempt to adopt or enforce an "ordinance, resolution, rule, or policy . . . , or an official action, including in any legislative, police power, or proprietary capacity" taken in violation of subsection 229.001(a) or 236.002(a) "is void." TEX. LOC. GOV'T CODE §§ 229.001(a-1), 236.002(b).[5] The statutes' unambiguous words disclose the Legislature's intent: if a municipality or county adopts a regulation related to the transfer, possession, ownership or sale of firearms, that regulation will be void to the extent of a conflict with section 229.001(a) or section 236.002(a). See Tex. Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628, 639 (Tex. 2010). Thus, municipal and county officials may not use their emergency powers under section 418.108 of the Government Code to regulate or restrict the sale of firearms.

Section 229.001 of the Local Government Code recognizes municipal authority under other law to "regulate the use of firearms, . . . in the case of an insurrection, riot, or natural disaster if the municipality finds the regulations necessary to protect public health and safety." TEX. LOC. GOV'T CODE § 229.001(b)(4) (emphasis added). Thus, municipal governments possess limited authority to regulate firearms during a disaster. Id. § 229.001(a). However, the action of using a firearm is distinct from the transfer, ownership, or sale of the firearm, each of which can be accomplished without actual use. Thus, municipal authority to regulate the use of firearms during a disaster does not grant authority to also regulate the transfer, possession, ownership or sale of firearms.

S U M M A R Y

Subsections 229.001(a) and 236.002(a) of the Local Government Code prohibit a municipality or county from adopting regulations related to the transfer, possession, or ownership of firearms, or commerce in firearms. These provisions apply to municipal and county regulation "notwithstanding any other law." Thus, while municipal and county officials possess general emergency authority to control the movement of persons and the occupancy of premises in a local disaster area under Government Code section 418.108, such orders may not regulate or restrict the sale of firearms.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

[1] See Letter from Honorable Dustin Burrows, Chair, House Comm. on Ways & Means, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Mar. 24, 2020), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] Your question is limited to municipal or county authority to restrict the sale of firearms. Request Letter at 1. You do not ask about, and we do not address, any emergency authority the Governor has to limit or suspend the sale of firearms during a disaster declaration. See TEX. GOV'T CODE § 418.019 ("The governor may suspend or limit the sale, dispensing, or transportation of alcoholic beverages, firearms, explosives, and combustibles.").

[3] See, e.g., Order of the Mayor of the City of Austin Steve Adler (Mar. 24, 2020), available at http://www.mayoradler.com/wp-content/uploads/2020/03/Order-20200324-007-Stay-Home-Work-Safe.pdf.

[4] Some local disaster declarations and related orders restrict the operation of business to delivery or curbside service for certain retail operations. However, federal regulations governing the purchase of firearms generally require in-person transactions with licensed dealers. See, e.g., 27 C.F.R. § 478.124(a) (requiring a licensed dealer to record all firearms transactions on a firearms transaction record, Form 4473); see also Bureau of Alcohol, Tobacco, Firearms & Explosives, Form 4473, available at https://www.atf.gov/firearms/docs/4473-part-1-firearms-transaction-record-over-counter-atf-form-53009/download (requiring form preparation "in original only at the licensed premises" of the dealer). Thus, limiting retail sales of firearms to delivery or curbside service will effectively prohibit firearms sales from licensed dealers.

[5] The Legislature authorized the Attorney General to "bring an action in the name of the state to obtain a temporary or permanent injunction" against a municipality or county adopting a regulation in violation of these provisions. TEX. LOC. GOV'T CODE §§ 229.001(f), 236.002(f).