Texas Department of Family and Protective Services

[westex9]

Long story short my child's daycare put up a ghostbusters gun sign. When I asked about it they said Texas Department of Family and Protective Services inspectors are requiring "signage" I have read all kinds of forums about daycare vs school and off limits carry. So I emailed Texas DFPS and asked them about it. Here is what they said.

**********************************************************************************
Mr. Xxxxxxxx,

We do not have any new rules regarding the new open carry law. Our standards remain:

§746.3707 Are firearms or other weapons allowed at my child-care center?

(a) Law enforcement officials who are trained and certified to carry a firearm on duty may have firearms or ammunition on the premises of the child-care center.

(b) For all other persons, firearms, hunting knives, bows and arrows, and other weapons are prohibited on the premises of the child-care center, unless the child-care center is also your residence.

(c) Firearms, hunting knives, bows and arrows, and other weapons kept on the premises of a child-care center located in your home must remain in a locked cabinet inaccessible to children during all hours of operation.

(d) Ammunition must be kept in a separate locked cabinet and inaccessible to children during all hours of operation.



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

Thank you,

Child Care Licensing
*****************************************************************************************************************


Now how does apply to CHL or LTC people? Don't think this was mentioned in class..

[MeMelYup]

Looks like we need to add an (e) to this law that is an exception for LTC that are carrying concealed.

[oohrah]

There already is an exception. No need to stir the pot. Those rules do not apply to licensed persons.

[westex9]

There already is an exception. No need to stir the pot. Those rules do not apply to licensed persons.

Not trying to stir the pot just wondering. Do you happen to know where those exceptions are?

thanks

[mojo84]

What's important is to make sure the regulatory agencies are up to date on the laws and the update their rules accordingly.

[SewTexas]

if it's just a child-care and it doesn't have a legal sign, keep your gun concealed, go in drop-off/pick-up and leave. Concealed means concealed, and keep quiet about it.

[oohrah]

There already is an exception. No need to stir the pot. Those rules do not apply to licensed persons.

Not trying to stir the pot just wondering. Do you happen to know where those exceptions are?

thanks

What I meant was, the regulations made by a state agency on public property cannot change your entitlement to licensed carry. They may be able to restrict unlicensed legal carry, I suppose. And if my interpretation is correct, I'm sure someone will chime in.

[maumelle]

if it's just a child-care and it doesn't have a legal sign, keep your gun concealed, go in drop-off/pick-up and leave. Concealed means concealed, and keep quiet about it.

Even it's not a legal sign, we all know the sign means "come and get me. we are easy target". My concern is that my children are unsafe in such "gun free zone" all day. We cannot even send our children to another daycare as all child care providers in Texas will be asked to post the sign eventually.

[rotor]

Unless it is Federal, doesn't 46.035 list every place a license holder can NOT go with a handgun?

[chasfm11]

What their rules can do is to invalidate your child care license if they don't like your compliance with them. They do not permit carry by off-duty LEOs and have (IMHO) no basis for that regulation. I, too, wrote them and asked about their statutory basis. They are covered by the administrative code, not the TPC.

I'm guessing that the gunbusters sign is not going to cut it if they do a compliance check. Their response email to me included the 30.06 and 30.07 legal wording. While they say that they do not require the signs, it clear that they expect effective notice to be issued. Right now, I'm hoping that such notice can be limited to the parents and the child care staff.

At the macro level, I cannot imagine them invalidating every child care license for failing to post .06, 07 signs. But I don't want our church's child care to be the test case.

[ELB]

Unless there is some statute explicitly authorizing the DFPS to force child care centers to post, then it sounds like they are grabbing authority they do not have, and they need a smack on the head for it. When there is no genuine penalty for a bureaucrat to break the law, then he's going to do whatever he feels like, we saw that for years with the posting of government buildings. SB 273 fixed that in a hurry. Sounds like that solution should be extended.

[chasfm11]

Unless there is some statute explicitly authorizing the DFPS to force child care centers to post, then it sounds like they are grabbing authority they do not have, and they need a smack on the head for it. When there is no genuine penalty for a bureaucrat to break the law, then he's going to do whatever he feels like, we saw that for years with the posting of government buildings. SB 273 fixed that in a hurry. Sounds like that solution should be extended.

But the claim in their email is that this has ALWAYS been their policy and that the email was simply a reminder of that policy in light of OC.
I've asked many others about how previous compliance was determined. I know that we have had onsite inspections and they have found us non-compliant in some areas. I really don't want to ask them "how was firearm policy compliance assessed in the past" because I fear that I won't like the answer.

[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

[chasfm11]

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. 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.

[G.A. Heath]

This is something we need to address with expanding pre-emption. Even if this rule goes away via agency action, litigation, or legislation we have to ensure that state agencies do not create rules that run counter to the intent of legislature on gun rights.

Additionally I suspect a case could be made on the constitutionality of the rule as it regulates the wearing of arms, something reserved to the legislature.