In The News

Here's What You Should Know About Open Carry Before Jan. 1

Dec 11, 2015

Don't panic if you see a holstered handgun on your client's hip on New Year's Day. Open carry takes effect Jan. 1, at which point Texans with concealed handgun licenses can legally carry their handguns in plain sight. Here's a look at the implications to property managers and landlords.

The new Texas open carry legislation authorizes people to openly carry a holstered handgun in the same places they could previously carry a concealed handgun (with a few exceptions). There are specific places open carry isn’t allowed like school buses, government buildings, K-12 schools, polling places, courthouses, race tracks, correctional facilities, hospitals, amusement parks and churches, among others. You'll notice most commercial real estate isn't on the list, which is working some property managers and building owners into a frenzy.

Dallas-based Munsch Hardt Kopf & Harr shareholder Kitty Henry says the impact of the new law is still up in the air. Basically, landlords and building owners can prohibit people from concealed carry with specific notices on building entrances. With open carry, there is an additional notice that needs to be posted alerting visitors that it's a gun-free area. A verbal notification to someone carrying a handgun is sufficient notice to ask them to leave the premises, Kitty says, but it's not ideal for property managers because that may create an awkward moment. Kitty expects open carry proponents may test their limits by going to businesses to point out where the signs are insufficient, but she doesn’t expect the hubbub to last too long—building owners will either correct insufficient signage or perhaps affix signs if they didn’t before.

Want to ban handguns from your premises? There's an entirely new complex set of rules and regulations that must be closely followed, says Rob Harlow, a partner in the Houston office of Jackson Walker. Kitty's first piece of advice is to post signage that meets state requirements. Landlords are weighing whether they want to put a fairly significant amount of signage on each entrance to their buildings (concealed carry and open carry require separate notices—in English and Spanish at each entrance) or if they will deal with the issue on a case-by-case basis. Rob adds building owners need to consider what open carry-related terms they may want to include in leases and other agreements and establishing protocols to address potential issues. 

One important note: just like with concealed carry, the law only applies to the building itself. As Andrews Kurth’s Micala Bernardo (Dallas office) and Marc Katz (Dallas and NY offices) wrote in the National Law Review, employers may not prohibit employees from storing lawfully possessed firearms and ammunition in vehicles parked in the employer’s parking lot/garage or from carrying in public spaces like sidewalks or parking lots. 

It’s a hot-button issue and not many property managers wanted to comment—largely because they’re just unsure of what’s ahead. BOMA Dallas, for one, is not taking a stance on the issue. Younger Partners’ Greg Grainger is recommending property owners take a non-interference position unless there's a good reason to interfere. Most owners are leaving it to tenants to determine if they want to bar handguns from their space. One significant omission from the Open Carry Law, Micala and Marc say, is that it doesn't grant employers immunity from civil actions resulting from an occurrence involving the employee and his or her openly carried firearm, which the 2011 Texas CHL law did, except in cases of gross negligence. Greg says that leaves no safe harbor for property managers if something happens and it could be reasonably presumed that a person with a handgun could have prevented injury to innocents. Of course, the opposite could be true if someone was injured by a licensed person with a handgun and the owner did not bar them from the property. Greg says it seems the safest position for property owners is to stand down and not usurp the law; this way, they can argue that they did not grant any right nor did they stand in the way of the open or concealed carry rights.

By: Tonie Auer