Debate continues on guns in buildings that contain courtrooms

Some Texas cities and counties have lifted bans on handguns in multi-use government buildings that house courtrooms after individuals complained that the bans were too broad and therefore illegal. At least two challenges to local bans have moved to the courts.

In 2015, the Texas Legislature enacted SB 273 by Campbell, creating a process to challenge local handgun bans on certain government premises. The bill gave the attorney general authority to investigate citizen complaints and to sue local governments if a ban was believed to be unlawfully restrictive.

Two lawsuits have been filed by the attorney general against local governments alleging that their bans are illegal. Another lawsuit was filed by a county against an individual making a complaint and asks the court to declare the county’s ban legal.

The debate over local authority to ban handguns from government buildings and courthouses centers on whether bans may be applied to an entire building if part of it contains courts and court offices, along with other government offices, or whether the bans must be more limited. As courts weigh in, the 85th Legislature could address the issue during its regular session in 2017.

Current law

Under current law, several statutes affect whether local governments may exclude handguns from certain premises. Penal Code, sec. 30.06 prohibits concealed handgun license holders from carrying a handgun on another’s property without consent but does not apply if the property is owned or leased by a government entity and if the premises are not places where they otherwise are statutorily prohibited from carrying a handgun.

Penal Code, sec. 46.03 prohibits individuals, including handgun licensees, from carrying firearms and other weapons on the “premises of any government court or offices utilized by the court” unless under the court’s authorization or written regulations. Sec. 46.035(c) prohibits license holders from carrying handguns in certain government meetings if proper notice is given.

Sec. 46.035(f)(3) defines “premises” as a building or portion of a building. The attorney general said last year in opinion KP 0047 (2015) that the premises of, or offices used by, a court include only government courtrooms and offices essential to their operation.

Enforcement mechanism. Government Code, sec. 411.209, created by SB 273 in 2015, prohibits state agencies and local governments from posting signs banning handgun licensees from carrying guns on property owned or leased by the entity unless carrying a handgun is prohibited under Penal Code, sec. 46.03 or sec. 46.035. Prohibited signs include those described by Penal Code, sec. 30.06 and signs referring to that law or to a concealed handgun license.

Entities that violate this provision are liable for civil penalties of $1,000 to $1,500 per day for a first violation and $10,000 to $10,500 per day for subsequent ones. Texas citizens and handgun license holders may file complaints with the attorney general after giving the entity notice describing the violation and three days to correct it. The attorney general must investigate before suing for penalties. If a suit is warranted, the state must give the entity 15 days to remove the sign before proceeding.

Challenges to local policies

Many complaints about local policies have been resolved after an initial complaint or after the attorney general’s office conducted an initial investigation or sent a letter to the entity. As of early September, about 40 cases remained pending after an initial letter. Fewer than 20 second letters have been issued, but in four of those cases, the disputes remain unresolved.  Cases can be resolved either by the city or county complying or the attorney general closing the complaint for other reasons. Two challenges have gone to court.

In August, Waller County responded to a complaint about signs banning handguns from its courthouse by filing a lawsuit against the person making the complaint. The suit asks the district court to declare that Penal Code, sec. 46.03(a)(3) prohibits individuals from carrying firearms throughout the entire Waller County Courthouse and that the county’s signs are legal. In response to the same complaint, the attorney general sent a letter to the county saying it was violating the law and in late August filed a lawsuit asking a court to require the county to comply and to award penalties of $1,500 per day, beginning on August 29.

A suit filed in July by the attorney general against the city of Austin says that Austin continues to wrongfully ban handguns from city hall based on the presence of a court within the building. The lawsuit arose from a citizen complaint in fall 2015, which was closed when the city removed its signs. Another citizen filed a complaint in April 2016 accusing the city of continuing to violate the law by displaying different signs banning guns and by giving verbal notice to visitors that handguns were prohibited in city hall. The suit asks the court to force Austin to comply with state law and to assess civil penalties. In a response indicating its intent to defend the suit, the city said it believed it was acting within the law based on the presence of court proceedings and office space for court personnel within the building.

Debate

Those challenging broad handgun bans in buildings that house courtrooms say government entities may prohibit handguns only from courtrooms themselves and from certain court offices but not from entire buildings that also house other government activities unrelated to the courts. The law allows only limited bans, they say, and local governments should not infringe on 2nd Amendment rights by overextending this authority.

Others say that when the Legislature in 2003 amended Penal Code, sec. 46.03, it allowed prohibitions of handguns from entire buildings, not just courtrooms or court offices. They say it is not always possible to separate non-court areas from those associated with courts and that entire buildings may need to be secure. They say the potentially volatile nature of many court proceedings can make it necessary for bans to include common areas in which prosecutors, clerks, witnesses, and others associated with legal or government proceedings may be working or assembled.

by Kellie A. Dworaczyk

Posted in Criminal Justice, Judiciary | Tagged , , ,

New federal law requires labeling of bioengineered foods

A recently enacted federal law directs the secretary of agriculture to establish national standards for labeling bioengineered foods, sometimes described as genetically engineered foods or foods with genetically modified organisms (GMOs). S.764  by Wicker (R-MS) preempts state requirements for labeling bioengineered foods or seeds, including a labeling law recently enacted by the Vermont General Assembly. Texas law does not mandate labeling of foods with GMOs, although a bill to establish such a requirement was introduced in the 2015 legislative session.

According to the federal Food and Drug Administration, evidence has shown that foods from genetically engineered plants are as safe to eat as their non-genetically engineered counterparts, but proposals requiring labeling of such foods have emerged in response to consumers who say they have a right to know how their food is made and who may wish to avoid eating genetically engineered foods for various reasons. Advocates of a federal solution have sought a consistent, national approach to labeling, rather than differing requirements across states.

Under the new federal law, the secretary of agriculture within two years must set labeling standards that require manufacturers to disclose on packages the use of bioengineered ingredients through text, a symbol, or an electronic or digital link, such as a Quick Response (QR) code. Small food manufacturers will have other disclosure options that include providing a phone number consumers can call to access more information. The secretary also must within one year study potential technological challenges affecting customers’ ability to access disclosures about bioengineered foods through electronic or digital methods.

The new law defines bioengineered foods as foods containing genetic material that has been modified through “in vitro recombinant DNA techniques” and for which the modification could not be found in nature or obtained through conventional breeding. In vitro recombinant DNA techniques involve combining DNA from different sources to achieve certain benefits, such as insect resistance for plants. Under the new law, food derived from an animal that consumed feed containing a bioengineered substance cannot be considered a bioengineered food solely for that reason. The secretary of agriculture must determine how much of a bioengineered substance may be in a food for it to be considered bioengineered.

A bill filed but not enacted in Texas by the 84th Legislature in 2015 would have required that foods offered for sale by a retailer be labeled as produced entirely or partially from genetic engineering, if applicable, and would have established a civil penalty for noncompliant manufacturers or retailers. The bill, HB 3499 by Alvarado, was referred to the House Committee on Public Health but did not receive a public hearing.

by Mary Beth Schaefer

 

Posted in Natural Resources | Tagged , , , ,

State considers ways to address financial abuse of elderly

As the population ages in Texas and nationwide, state lawmakers are examining ways to curb financial exploitation of the elderly. Proposals could emerge to address the issue in the 85th Texas Legislature’s regular session in 2017.

The House Committee on Investments and Financial Services and the Senate Committee on Business and Commerce are both charged this interim with addressing financial exploitation of the elderly, which Texas generally defines as those 65 and older. Both committees met earlier this year to discuss whether changes are needed to improve protections. Among the possible changes considered was granting discretion and protection from liability to financial institutions and securities broker-dealers for holding transactions or refusing to disburse funds when exploitation of an older client was suspected.

While recent hearings have focused on protective services and consumer protections, concerns about elder financial exploitation also extend to other areas. For example, Texas and other states have policies to help prevent financial abuse by guardians or someone to whom a senior has granted power of attorney. Texas also has established stricter criminal penalties for people who commit fraud or other types of exploitation against the elderly. For more on approaches to combating elder financial abuse at the state level, see the recent House Research Organization focus report, State Examines Ways to Curb Financial Exploitation of Older Texans.

Posted in Criminal Justice, Human Services | Tagged , , , ,

Texas studies freshwater loss, explores aquifer storage and recovery

As part of an interim charge to study freshwater loss in Texas, the House Natural Resources Committee is expected to meet this fall to examine aquifer storage and recovery (ASR) as a water storage method that could prevent loss to evaporation. ASR involves collecting water during wet periods and storing it underground in an aquifer from which it can be drawn during periods of peak demand.

According to the Texas Water Development Board, about 7.2 million acre-feet of water currently stored in surface water reservoirs evaporates in an average year. While surface reservoirs continue to feature prominently in the recently adopted 2017 state water plan, many consider ASR to have several advantages over reservoirs that justify its expanded use. In addition to resisting water loss through evaporation, ASR does not involve the acquisition and flooding of land above ground, which can be expensive and result in destruction of wildlife habitat and private property.

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AG issues opinion on property of closed charter schools

The Texas attorney general said in a June 20 opinion that the education commissioner has authority to take possession of property of a charter school that is no longer in operation and that a court likely would conclude that such property was not “unappropriated public domain” belonging to the Permanent School Fund. The Texas Education Agency (TEA) had requested the opinion to address questions about the legal status and disposition of such property amid an increase in charter school revocations.

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