2007 State Fair of Texas - Important CHL Update

[frankie_the_yankee]

I didn't think that State Atorney General had any meaning. Its just an opinion. Would their opinion carry more weight than a local DA such as Chucky's

I think that in TX, when the AG issues an opinion on the law, it is binding until or unless ruled otherwise by the courts. But IANAL, and I'm not sure exactly how this works or where that authority comes from.

I would be very interested in one of the lawyers on this board explaining this further.

[jimlongley]

Besides this latest fracas, which may or may not be settled, I have always wondered about their Cotton Bowl prohibition. Since the law is written in the present tense, should I assume, from their prohibition, that the Cotton Bowl has sporting events taking place 24/7 during the State Fair?

I had a similar experience with the Travis County expo center and the rode there. Because of the way the law is written, I was able to carry everywhere except in the expo center while the rodeo part was happening. But 5 minutes later when the concert started, I could carry there as well. Strange law, but that isn't unusual.

The problem is that the State Fair officials deny access to the Cotton Bowl by CHL holders at any time, even when there is no sporting event taking place, based on that sentence in the law.

[Nazrat]

Frankie,

I am on shaky ground right now by posting anything on this issue due to my employment and the fact that I went to law school with someone in that section.

Here is a cut and paste section from the link:

Unless or until an opinion is modified or overruled by statute, judicial decision, or subsequent Attorney General Opinion, an Attorney General Opinion is presumed to correctly state the law. Accordingly, although an Attorney General Opinion is advisory, it carries the weight and force of law unless or until it is modified or overruled. Ultimate determination of a law's applicability, meaning or constitutionality is left to the courts. For this reason, the Attorney General generally does not write opinions on issues that are in pending litigation.

http://www.oag.state.tx.us/opinopen/opinhome.shtml

[Liberty]

Frankie,

I am on shaky ground right now by posting anything on this issue due to my employment and the fact that I went to law school with someone in that section.

Here is a cut and paste section from the link:

Unless or until an opinion is modified or overruled by statute, judicial decision, or subsequent Attorney General Opinion, an Attorney General Opinion is presumed to correctly state the law. Accordingly, although an Attorney General Opinion is advisory, it carries the weight and force of law unless or until it is modified or overruled. Ultimate determination of a law's applicability, meaning or constitutionality is left to the courts. For this reason, the Attorney General generally does not write opinions on issues that are in pending litigation.

http://www.oag.state.tx.us/opinopen/opinhome.shtml

Nazrat I will surely respect your decision to bow out of this discussussion as you choose. It sounds to me as though any court in the state can basically overturn this. and that any opinion from the AG has no weight in court? What it means is that that LEOs can use these opinions to justify their actions/nonactions

[Nazrat]

An AG opinion would render the practice meaningless until a test case is found, prosecuted and appealed.

The hope would be that the local LEO's would have an in house counsel who would say that the AG opinion is correct and that an attempt to enforce an opinion on which the AG opinion has already stated is incorrect would open up the department to potential liability.

These are clearly persuasive opinions. However, they are widely respected as the current status of the law. Typically, an AG opinion results in legislation to change the interpretation and not court case.

This is the list of overturned opinions: http://www.oag.state.tx.us/opinopen/opinions_wd.shtml

I count 21 overturned by a court case since 1939. The overwhelming majority are changed via statute.

This is merely another tactic that I believe would be more successful than emailing the General. I do not know of another mechanism whereby the AG can effectively control the actions of the entire state.

[frankie_the_yankee]

Nazrat I will surely respect your decision to bow out of this discussussion as you choose. It sounds to me as though any court in the state can basically overturn this. and that any opinion from the AG has no weight in court? What it means is that that LEOs can use these opinions to justify their actions/nonactions

First, thanks to Nazrat for posting the reference I was thinking of.

Liberty, you're right that a court can overturn an AG's opinion. But don't discount the fact that until and unless a court DOES overturn it, it has the force of law.

This can work for us as well as against us.

Let's say, for example, that Greg Abbott issued an opinion to the effect that if a private business leases property from the government, the private business CANNOT enforceably post the property 30.06 because the ultimate OWNER of the property is the government, then that's the way it is. If such property was posted and a CHL were subsequently arrested for violating section 30.06, not only would the the case be summarily dismissed, but there would be a possibility of bringing a false arrest action, IMO.

Also, TSRA could contact the private business BEFORE anyone was arrested and advise them of the AG's opinion and the fact that they had no authority to enforce 30.06 on their premesis. At that point, they would have little choice but to take the signs down and/or stop trying to enforce them.

Or alternatively, they could bring an action in court seeking to have the AG's opinion overturned.

On the other hand, if Abbott opined that for the purposes of 30.06, the leaseholder was the effective owner of the property regardless of who held the fee simple title, then Frankie's right and the leaseholder (if a private entity) can post the property and enforce it at will.

I think the TSRA should seek an opinion from Abbott on this. Abbott is one of the most pro-gun and pro-CHL AG's we have ever had or could ever hope to have. He was one of the prime movers behind our CHL law. If any AG could be expected to give us a favorable ruling, it would be him.

And it could be a lot quicker, easier, and cheaper than bringing a lawsuit against a private leasee.

Again, IANAL and the above only represents my opinion.

[Nazrat]

FYI from the same link:

Who Can Request an Attorney General Opinion?
Sections 402.042 and 402.043 of the Government Code set out the state and local officials who are authorized to request formal Attorney General opinions on questions of law. The Attorney General is prohibited by statute from giving a written opinion to anyone other than an authorized requestor. Authorized requestors include:

* the Governor
* the head of a department of state government
* the head or board of a penal institution
* the head or board of an eleemosynary institution
* the head of a state board
* a regent or trustee of a state educational institution
* a committee of a house of the Texas Legislature
* a county auditor authorized by law
* the chairman of the governing board of a river authority

The Attorney General shall also advise a district or county attorney in certain instances in which the State is interested and certain requirements are met. In addition, the Attorney General shall advise the proper authorities in regard to the issuance of bonds that by law require the Attorney General's approval.

A person other than an authorized requestor who wants to ask for an opinion should approach someone who is named in statute as an authorized requestor. In addition, a county or precinct official can request a written opinion or written legal advice from the district or county attorney, regarding the official's duties under the law.

[Charles L. Cotton]

On the other hand, if Abbott opined that for the purposes of 30.06, the leaseholder was the effective owner of the property regardless of who held the fee simple title, then Frankie's right and the leaseholder (if a private entity) can post the property and enforce it at will.

It won't happen. You have repeatedly expressed the opinion that private persons or entities renting or leasing government-owned property can ignore the express, clear and unambiguous language of TPC §30.06. You incorrectly state that lessees take real property with all the rights of a fee simple owner, then you incorrectly argue that this same lessee takes the property free of lawful restrictions, whether they be contractual or statutory. I know you state this is your personal opinion, but it must be based upon something. I renew the request made many times to provide a citation to a statute, case, or AG opinion supporting your position.

I think theTSRA should seek an opinion from Abbott on this.

Private persons and entities cannot ask for an AG's opinion.

Chas.

[Liberty]

Nazrat I will surely respect your decision to bow out of this discussussion as you choose. It sounds to me as though any court in the state can basically overturn this. and that any opinion from the AG has no weight in court? What it means is that that LEOs can use these opinions to justify their actions/nonactions

First, thanks to Nazrat for posting the reference I was thinking of.

Liberty, you're right that a court can overturn an AG's opinion. But don't discount the fact that until and unless a court DOES overturn it, it has the force of law.

This can work for us as well as against us.

Let's say, for example, that Greg Abbott issued an opinion to the effect that if a private business leases property from the government, the private business CANNOT enforceably post the property 30.06 because the ultimate OWNER of the property is the government, then that's the way it is. If such property was posted and a CHL were subsequently arrested for violating section 30.06, not only would the the case be summarily dismissed, but there would be a possibility of bringing a false arrest action, IMO.

Also, TSRA could contact the private business BEFORE anyone was arrested and advise them of the AG's opinion and the fact that they had no authority to enforce 30.06 on their premesis. At that point, they would have little choice but to take the signs down and/or stop trying to enforce them.

Or alternatively, they could bring an action in court seeking to have the AG's opinion overturned.

On the other hand, if Abbott opined that for the purposes of 30.06, the leaseholder was the effective owner of the property regardless of who held the fee simple title, then Frankie's right and the leaseholder (if a private entity) can post the property and enforce it at will.

I think the TSRA should seek an opinion from Abbott on this. Abbott is one of the most pro-gun and pro-CHL AG's we have ever had or could ever hope to have. He was one of the prime movers behind our CHL law. If any AG could be expected to give us a favorable ruling, it would be him.

And it could be a lot quicker, easier, and cheaper than bringing a lawsuit against a private leasee.

Again, IANAL and the above only represents my opinion.

I am beggining to understand the reasoning behind seeking this opinion, It might make sense. Still, a part of me wonders if its a good idea to pursue this.

30.06 is a pretty good deal for us Texans, no other state has such protection. I get nervous messing with it, or drawing attention to it. In the case of 30.06 public ignornance is our friend.
For example.
If the restraunt at the Tower were posted 30.06. I would carry inside. I believe that it is legal, and it would be very unlikely that it would be an issue or that I would ever be questioned. As unlikely as I see it that I would be questioned, I believe that it would be unlikely to be a a police or legal issue. If asked to leave I (and most CHLers) would leave.

If the police were to get involved I believe at this point most DAs wouldn't want to push this issue, they understand that they probably won't win this one.
If it does go to court I believe I would win, surely it would win as an an appeal. If a CHL were to lose this one. and there weren't any unusual circumstances. That even if found guilty the court should go gentle on the so called offender. After all a judge and jury would need to concede that it wasn't all that unreasonable to assume my interpetation of the law, and that there was no deliberate intention to break any law.

By asking for an AGs opinion we are going for an all or nothing approach. If we lose this one, we lose big time.

There is a reason that this has never been tested in court. And its not because no one ever carries in posted govt. owned buildings.

[frankie_the_yankee]

I think theTSRA should seek an opinion from Abbott on this.

Private persons and entities cannot ask for an AG's opinion.

Chas.

OK then. I would suggest that the TSRA ask someone on the list of authorized requestors as defined in the statute to request a formal opinion from AG Abbott. The list that Nazrat posted comprises a lot of people. Surely there must be at least one who would look favorably on a request from the TSRA.

This is Texas, after all.

As I said, AG Abbott is the most pro-gun, pro-CHL AG we have ever had, and most likely ever will have. If anyone would issue an opinion on this issue favorable to CHL holders, it would be him.

If this were done, and we got a favorable outcome, many venues that now improperly ban CHL's from carrying would be forced to change their policies in one fell swoop.

That would clearly be a good thing.

[Charles L. Cotton]

Legislation is the preferred method of "fixing" a problem. Yes, it can take longer, but it provides us the opportunity to control details of the bill. Things like definitions are very important, sometimes critical, and cross-referencing proposed legislation with current statutes can avoid unintended consequences.

Yes, Abbott s the most pro-gun AG we've ever had and I wouldn't hesitate to have his opinion on any gun-related issue. BTW, Nazrat is absolutely correct concerning the effect of an AG's Opinion.

Chas.

[frankie_the_yankee]

Legislation is the preferred method of "fixing" a problem. Yes, it can take longer, but it provides us the opportunity to control details of the bill. Things like definitions are very important, sometimes critical, and cross-referencing proposed legislation with current statutes can avoid unintended consequences.

I see your point. But until we get such legislation, I think CHL's should be advised to carefully consider the possible consequences of carrying in a leased facility that is posted, even if it may be improperly posted.

What I feel uneasy with is when someone posts something like, "Well, the city owns the land so the business leasing it can't enforceably post, so it's OK to carry.", like it's a done deal. Someone might act on that advice and get themselves into trouble (though as Nazrat points out, things would be unlikely to go that far unless the CHL pushed it to an unreasonable level).

In my view I think it is at least unclear as to whether 30.06 is enforceable in that instance. And unless I am misunderstanding you Chas, on some level you think it is not completely clear yourself, or you would not propose fixing it (clarifying it) with legislation.

Do you agree that further clarification is needed in the law and definitions, or do you think it's a done deal and that private leasees of government-owned property cannot enforce 30.06?

[Dragonfighter]

Just a quickie about the school activities. Correct me if I'm wrong but isn't there a significant difference between the presence of school groups at an event and one that is organized and sponsored by a school. What I am getting at is this, the State Fair of Texas is not organized by any school or school board.

On the 30.06 statute (I always thought that was an ironic chapter and sub-chapter designation), it states that the restrictions do not apply on any property (where not otherwise prohibited) owned or leased by a government entity. If I read that correctly through my layperson eyes, that means if even the property is privately held and the city was renting it for a government annex or activity, then the statute applies. So if they own it (even if it is leased by a private organization) , or are renting it from a private owner to conduct city business, you're good to go.

Whether these morons choose to enact inordinate restrictions or not is completely apart from the legality or it's being right or wrong.

Just some random and disjointed thoughts after 12 hours at the fair, with my Glock 23, after dehydration and fatigue have overcome this feeble mind. But, there was no problem getting in today.

BTW, I would have been one caught in the web, I checked the Fair's web site a few days back and have not been on here for a week so I was ignorant of all that has transpired...that'll teach me to be more diligent in visiting here. And thanks CHL/LEO for the (now rescinded) heads up.

Kyle