Texas Department of Family and Protective Services

[gljjt]

What is the supposed penalty for violating a "rule"?

[G.A. Heath]

What is the supposed penalty for violating a "rule"?

The entity licensed by the state (Child Care provider) can loose their license or be fined. For the general public we would have to violate the signage they are forcing the licensed entities to post and thus suffer the penalties for violating 30.06 and 30.07.

[JALLEN]

Does the agency have the authority to make such a rule? There are procedural requirements as well as the substantive grants of authority in statutes.

Grants of authority by the Lege to a regulatory body are not generally expansive. There needs to be a specific grant.

[rotor]

What is the supposed penalty for violating a "rule"?

The entity licensed by the state (Child Care provider) can loose their license or be fined. For the general public we would have to violate the signage they are forcing the licensed entities to post and thus suffer the penalties for violating 30.06 and 30.07.

From this I assume that any LTC holder can carry legally if there is no 30.06 or 30.07 but the daycare center is in RULE violation for not posting such signs. Still, the only places a LTC can not carry are listed in 46.035 ( plus Federal stuff). The violation would be the day care center and not the LTC holder. Similar if a bar didn't post a TABC sign.

[ELB]

Does the agency have the authority to make such a rule? There are procedural requirements as well as the substantive grants of authority in statutes.

Grants of authority by the Lege to a regulatory body are not generally expansive. There needs to be a specific grant.

This is what I was getting at. Even if the signs are not actually enforceable against an LTC holder, but not posting them is a violation that can be held against the facility, something stinks here.

[G.A. Heath]

I believe that if this were to end up in court this rule would not survive due to the state constitution which gives power to the legislature alone to regulate the wearing of arms.

[chasfm11]

Does the agency have the authority to make such a rule? There are procedural requirements as well as the substantive grants of authority in statutes.

Grants of authority by the Lege to a regulatory body are not generally expansive. There needs to be a specific grant.

In an email, I asked them where their authority was granted. They came back with the number 46.042. Since there is no such entry in TPC, I assume this to be in the administrative code. Since I have asked a lawyer to research it for us, I didn't try to look it up myself.

[chasfm11]

What is the supposed penalty for violating a "rule"?

The entity licensed by the state (Child Care provider) can loose their license or be fined. For the general public we would have to violate the signage they are forcing the licensed entities to post and thus suffer the penalties for violating 30.06 and 30.07.

To be clear, their email says specifically that they are not requiring signs be posted. But the email seems to imply that effective notice must be given since they supply the 30.06 and 30.07 language My interpretation is that it could be done via written notice. But I can find no one with experience from previous FPS examinations that will confirm what I believe.

[G.A. Heath]

What is the supposed penalty for violating a "rule"?

The entity licensed by the state (Child Care provider) can loose their license or be fined. For the general public we would have to violate the signage they are forcing the licensed entities to post and thus suffer the penalties for violating 30.06 and 30.07.

To be clear, their email says specifically that they are not requiring signs be posted. But the email seems to imply that effective notice must be given since they supply the 30.06 and 30.07 language My interpretation is that it could be done via written notice. But I can find no one with experience from previous FPS examinations that will confirm what I believe.

You might want to re-read the email in the OP, it says

We do not regulate the signage that could apply if the center operates in a public building.

This implies that if it is not in a public building then they do regulate the signage.

[TxAggieEngineer]

In many ways, I see a parallel with TABC.

I agree. FPS rules should not apply to licensed carry. I had the same question when Adventure Kids Playcare in Cedar Park posted 06/07 signs. When I e-mailed them about it they referred me to the FPS regulation governing their license. Of course, my big question is why they just put up the 06/07 signs in January but that's beside the point.

I have referred our situation to a lawyer who used to work for FPS but she has not been able to spend time on it yet.

Please keep us posted on what you find out. Based on previous posts on the forum it seems many of us are scratching our heads about this.

[chasfm11]

What is the supposed penalty for violating a "rule"?

The entity licensed by the state (Child Care provider) can loose their license or be fined. For the general public we would have to violate the signage they are forcing the licensed entities to post and thus suffer the penalties for violating 30.06 and 30.07.

To be clear, their email says specifically that they are not requiring signs be posted. But the email seems to imply that effective notice must be given since they supply the 30.06 and 30.07 language My interpretation is that it could be done via written notice. But I can find no one with experience from previous FPS examinations that will confirm what I believe.

You might want to re-read the email in the OP, it says

We do not regulate the signage that could apply if the center operates in a public building.

This implies that if it is not in a public building then they do regulate the signage.

Thanks. i have a copy of that original email and did see what you quoted. A church should be considered a public building. But that does not resolve how FPS determines compliance. I've been successful so far in postponing the discussion about signage until we get a response from the lawyer.

Let me draw you what I think is a parallel. I built a barn on my property. I wanted a concrete floor. The city told me that they did not require soil testing. But they had a requirement that a foundation engineer sign off on my concrete plan. I could not find a foundation engineering group who would certify as the city required without a soil test. So I ended up paying $1,000 for a soil test that the city didn't require.

[baldeagle]

There is a lot of speculation going on in this thread that is not based on law.

The Texas DPS is referring to the Texas Administrative Code. The Texas Administrative Code is a compilation of the rules of the state agencies. The rules that DPS cite explicitly state that weapons are not allowed "for all other persons" (than law enforcement officials). I have no doubt that it's against the law to violate state agency rules (perhaps a lawyer can cite the code and section), so I would highly advise anyone entering a child care facility to obey the rules.

https://texreg.sos.state.tx.us/public/r ... 46&rl=3707

Baldeagle. The problem here, I believe, is different than someone entering the child care space with a gun. It is whether the rules that apply to the child care space cover the entire building that is not specifically dedicated to child care.

I don't see how they could. The rules cover day care centers, not anything else. So, even if the day care center was not secured from the rest of the building, I would think carry would be legal everywhere in the building except the day care center.

Of course we all know what problem that creates. If you need to enter the day care center, you have to return to your vehicle and disarm, then return to enter the day care center. Stupid, I know, but that's what we labor under presently.

In our case, there is a segregated wing with locked doors during the child care hours. The unfortunate part for us is that the child care area is also used for Sunday school on the weekends. Also, on rainy days when the kids cannot go outside, some of the rest of the church is used by at least some of the child care classes. I'll admit upfront that I don't understand all of this, including the term "designated space" used in the FPS.

Many of the large churches in our area have child care. None of them are currently posted. I can only draw the conclusion that whatever level of enforcement of the administrative code by FPS in the past did not drive 30.06 and 30.07 signage and, since their own email states that nothing has changed, nothing should drive those signs now. It could be, however, that FPS, like Carter Bloodcare has always had a policy and has only now been awakened that it isn't being handled as they thought. That is not as much about the law as about the enforcement of it.

In many ways, I see a parallel with TABC. They also have regulations and those, for right or wrong, are being interpreted by some liquor license holders as requiring them to post 30.07 signs. I never expected all of this to be worked out quickly but there should be some way to start down the process of working it out. I just don't understand what that process is as it relates toe FPS. I have referred our situation to a lawyer who used to work for FPS but she has not been able to spend time on it yet. My initial conversation with her suggested that she was going to have to spend a fair amount of time figuring it out because she didn't understand it off the top of her head, even at the high level. That, too, suggests that it didn't come up while she worked there.

Frankly I think we've uncovered more that needs to be addressed by the legislature. I think it's obvious that the intent of the rules is to keep firearms and ammunition away from the children. But the mere fact that they allow law enforcement officials to carry demonstrates that they are not worried about children accessing the firearms that are carried securely on body. So I think the legislature should add an exemption for day care centers and then let them sign the center if they don't want to allow carry.

[baldeagle]

You might want to re-read the email in the OP, it says

We do not regulate the signage that could apply if the center operates in a public building.

This implies that if it is not in a public building then they do regulate the signage.

Thanks. i have a copy of that original email and did see what you quoted. A church should be considered a public building.

No, you misunderstand the meaning of "public". Public refers to buildings owned or operated by the government. Churches are, by Constitutional declaration (the First Amendment), strictly private.

[rotor]

You are looking at Texas Administrative Code, Chapter 746 MINIMUM STANDARDS FOR CHILD-CARE CENTERS. If you run such a center you should probably run out right now and post a 30.06 and 30.07 sign. If you don't post these signs you, the owner of the child care center, could be in violation of their rules. This does not appear to be nuclear science as other members are suggesting. This only involves a LTC if he/she enters a posted child-care center or if not posted is told to leave. This obviously makes a child-care center a gun free zone unless the center is in a private dwelling where guns are then locked and secured (essentially gun free). Not nuclear science. How many people here run child-care centers?

[ScottDLS]

You are looking at Texas Administrative Code, Chapter 746 MINIMUM STANDARDS FOR CHILD-CARE CENTERS. If you run such a center you should probably run out right now and post a 30.06 and 30.07 sign. If you don't post these signs you, the owner of the child care center, could be in violation of their rules. This does not appear to be nuclear science as other members are suggesting. This only involves a LTC if he/she enters a posted child-care center or if not posted is told to leave. This obviously makes a child-care center a gun free zone unless the center is in a private dwelling where guns are then locked and secured (essentially gun free). Not nuclear science. How many people here run child-care centers?

The OP for one...