Brief Description and Statutes
Due to the manner in which Section 46.035 of the Texas Penal Code was written, especially in regard to the listed places in Section 46.035(b), much confusion has resulted as to whether Texas concealed carry in church is permissible. Contrary to popular belief, churches and places of worship are not listed under Section 46.03 of the Texas Penal Code as places that weapons are strictly prohibited. However, LTC holders are specifically targeted under Section 46.035(b) of the Texas Penal Code, provided the church or place of worship properly posts Section 30.06 or 30.07 signs or notices.
Under Section 46.035(b)(6) of the Texas Penal Code, an LTC holder commits a Class A misdemeanor if they intentionally, knowingly, or recklessly carry a handgun either concealed or open on the premises of a church, synagogue, or other established place of religious worship. “Premises” is narrowly defined to only include “a building or a portion of a building, according to Section 46.035(f)(3) of the Texas Penal Code. Additionally, public driveways, private driveways, streets, sidewalks, walkways, parking lots, parking garages, or any other parking areas are not included in the definition of “premises.”
However, places of religious worship are still required to post Section 30.06 and 30.07 notices if an LTC holder is to be successfully prosecuted, according to Section 46.035(i) of the Texas Penal Code. Specifically, Section 46.035(i) indicates that the LTC holder prohibition does not apply to churches or other places of religious worship if the LTC holder was not given effective notice under Section 30.06 or 30.07.
Brief Legislative History
This odd exception to the list of prohibited places for LTC holders comes out of the 1997 Legislative Session in which the Texas legislature decided to eliminate the outright prohibition of concealed carrying in churches, places of worship, and specific other statutorily-listed prohibited places. Instead of simply repealing Section 46.035(b)(6) and other subsections that the legislature wanted to alter, they instead added Section 46.035(i), which essentially blends Section 46.035, a statutory list of prohibited places with Section 30.06, which is a trespass statute for private property holders. While the desired result was achieved, it has opened up a grey area that we will discuss further.
Overall, churches and places of worship are treated as private property owners and may post Section 30.06 and Section 30.07 signs and/or notices according to the wishes of their congregation’s governing body. Once again, churches are not required to post Section 30.06 or 30.07 notices, but may at their own discretion. If no Section 30.06 or 30.07 signs/notices are given, an LTC holder can legally carry on the premises of the church or place of religious worship.
This next section discusses a grey area in the notice requirements under Section 30.06 and 30.07: written notice. While an LTC holder who chooses to carry in a church despite receiving notice by Section 30.06 and/or 30.07 signs will likely result in a Class A misdemeanor charge, the answer is not so clear with the methods described below for written notice. This next section is not intended to be definitive authority on the matter, as to our knowledge, no case deciding these specific scenarios has been decided. However, it is worth discussing to ensure LTC holders are aware of their need to be extra conscientious upon entering a place of worship, and to open a discussion with churches to find effective ways to properly give notice to new parishioners who are LTC holders.
Written Notices in Bulletins and Slideshows
It should also be noted that some places of religious worship choose not to post Section 30.06 and/or 30.07 signs, but publish written communications, or “written notices” in church bulletins, handouts, or cards instead. Furthermore, some religious conferences advocate member churches to refrain from posting signs and insist that member churches give written notice instead.
As previously discussed in the section pertaining to Texas Penal Code Section 30.06, written notice must spell out the Section 30.06 and/or 30.07 statutes to the letter in both English and Spanish. Furthermore, if a church elects to publish via written notice in a church bulletin and you did not receive a copy of the bulletin, you technically have not received effective notice for prosecution under Section 46.035(b)(6). It can also be argued that an LTC holder did not receive effective notice if the notice under Section 30.06 and/or 30.07 is not immediately visible to the LTC holder upon receiving the church bulletin. Simply put, placing the written notice a few pages into the bulletin or not receiving a bulletin from the church greeter is not likely going to be considered effective notice if the LTC holder is not immediately aware of its presence when entering the premises.
Our office has heard from LTC holders that a few places of worship are providing “written notice” by running a PowerPoint or slideshow before the service begins with the statutory Section 30.06 and/or 30.07 language. Once again, this presents a precarious situation regarding whether an LTC holder received effective notice. Also, it can be argued that providing “written notice” in this manner does not provide notice upon immediately entering the premises and thus, presents a situation in which an LTC holder “intentionally” and/or “knowingly” carries a concealed or open handgun in the premises of a house of worship.
Determining Effective Notice
So, how do you argue that the LTC holder in either of these scenarios did not receive effective notice? Likely, the defense will argue that the LTC holder did not receive effective notice upon entering the premises and hopefully, the LTC holder complied and took their weapon back to their vehicle after becoming aware of the “faulty written notice.” However, a prosecutor may attempt to argue, with the help of subpoenaed church staff, that “everyone” received the “written notice,” and despite receiving that notice, the LTC holder carried into the church anyway. Furthermore, a prosecutor may argue that Section 46.035 does not provide for “second-chance” oral notice after an LTC holder enters a church that has “written notice,” no matter how obscure it may be.
In the end, the argument comes down to whether a judge or jury believes that effective written notice must be given before entering the premises for prosecution under Section 46.035(b)(6) of the Texas Penal Code. Why this becomes the paramount issue is the different sections of the Texas Penal Code referenced. As Section 46.035 covers the list of prohibited places for LTC holders, presumably carrying in the premises violates the statute and the “second-chance” oral notice provided under Sections 30.06(d) and 30.07(d) does not apply.
Putting it another way, the current language of the Texas Penal Code presents a question as to whether receiving notice after entering the premises leads to an automatic Class A misdemeanor charge under Section 46.035, or a Class C misdemeanor under Section 30.06(d) and/or 30.07(d), under the premise that the LTC holder complies with the church’s instructions and takes their weapon to their vehicle upon receipt of the “written notice.” Specifically, Section 30.06(d) and 30.07(d) state, “An offense under this section is a Class C misdemeanor punishable by a fine not to exceed $200, except that the offense is a Class A misdemeanor if it is shown on the trial of the offense that, after entering the property, the license holder was personally given the notice by oral communication described by Subsection (b) and failed to depart.” Nowhere in Subsection (d) does the statute state whether an LTC holder can receive “notice by oral communication” after entering the property for purposes of prosecution and/or defense to prosecution under Section 46.035 (the prohibited places statute). While a strong defense to prosecution under these scenarios likely exists, chances are you may still take a ride to the police station and become a test case on this particular issue.
Exercise an abundance of caution and be on the lookout for written notice if you choose to visit a place of religious worship for the first time if the church does not post Section 30.06 and 30.07 signs at each entrance. A way to approach a situation like this is to immediately ask the greeter upon entering the building about their gun policies if you do not see posted Section 30.06 and/or 30.07 signs on the exterior of the building. And remember, once you receive effective notice when visiting a church for the first time, you are still technically “on notice” every time you return.
If you as an LTC holder have any questions or if you represent a local church in Texas and have questions regarding these statutes and notice requirements, along with the new Church Security Team statute passed in the 2017 Legislative Session, feel free to give us a call and set up a consult, as we would be happy to assist churches and places of religious worship.