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New Texas Open Carr y Law Has Significant Implications for Employers
Micala R. Bernardo and Marc D. Katz
October 15, 2015
On June 13, 2015, Texas Governor Greg Abbott signed into law HB 910, the Texas Open Carry Bill for Concealed Handgun
Holders (“Open Carry Law”). The Open Carry Law becomes effective on January 1, 2016. The Open Carry Law expands the
scope of a concealed handgun license and authorizes an individual carrying such a license to carry a handgun in plain view
in a public place as long as the handgun is carried in a shoulder or belt holster.
The Open Carry Law also adds Penal Code Section 30.07 to establish a new offense for trespassing with an openly carried
handgun if a license holder enters another’s property without effective consent and: (a) had notice that entry was forbidden,
or (b) received notice that remaining on the property was forbidden and failed to depart. A license holder receives notice if
an owner or someone with apparent authority to act on the owner’s behalf provides notice by verbal or written
communication. However, the compliance requirements for a sufficient “written communication” are strict and detailed. The
“written communication” may be a card, document or sign posted on the owner’s premises. Such a sign would be required
to: (a) include Penal Code Section 30.07 language in English and Spanish, (b) have contrasting colors with block letters at
least one inch in height, and (c) be conspicuously displayed and clearly visible at each entrance to the property.
The Open Carry Law additionally permits individuals with concealed handgun licenses to carry handguns in plain view in a
motor vehicle or watercraft owned by the person as long as the gun is carried in a shoulder or belt holster.
Implications for Texas Employers
This new legislation raises several implications for Texas employers, as it expands individuals’ rights from parking lots to
company property. Currently, employers may not prohibit employees from storing lawfully possessed firearms and
ammunition in vehicles parked in the employer’s parking lot (or garage or other lot provided by the employer). Specifically,
the 2011 Texas concealed handgun law permits the possessor of a firearm or ammunition to store those items in a locked,
privately owned car, as long as the possessor holds a concealed handgun license.
The Open Carry Law, while permitting concealed handgun licensees to openly carry a holstered firearm, also allows public
and private employers to prohibit licensees from carrying their firearms onto the “premises” of the business. Under
the definition set forth in the Texas Penal Code, “premises” includes “the building or a portion of the building.” The term,
however, “does not include any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other
parking area.”
One significant omission from the Open Carry Law is that it does not grant employers immunity from civil actions resulting
from an occurrence involving the employee and his or her openly carried firearm. The 2011 Texas concealed handgun law
expressly included a provision providing employers with such immunity, except in cases of gross negligence. That immunity,
however, applied only to firearms and ammunition stored or transported in an employee’s vehicle and does not address an
occurrence involving an employee who is openly carrying a firearm.
The Open Carry Law, similar to the 2011 legislation, does not create a private cause of action for employees against their
employer if the employee contends that his or her right to openly carry has been infringed. Thus, it seems that an
employee’s only remedy would be to report the employer’s alleged violation (e.g., a policy banning firearms from being
openly carried) to the Attorney General’s office.
In light of this new legislation, employers must decide: (1) whether to allow employees with concealed handgun licenses to
openly carry handguns on company premises, and (2) whether to permit visitors, vendors, guests and other third parties to
openly carry handguns on company premises. Implementing and enforcing these decisions will require considerable
planning, including a determination as to whether any existing company policies need to be updated to comply with the new
law.
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If you have any questions regarding the Open Carry Law, please contact your Andrews Kurth labor and employment section
attorney.
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