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HomeMy WebLinkAbout2011-3385 - Ordinance - 12/08/2011 ORDINANCE NO. II- 8rj AN ORDINANCE AMENDING CHAPTER 1, "GENERAL PROVISIONS", OF THE CODE OF ORDINANCES OF THE CITY OF COLLEGE STATION, TEXAS, BY AMENDING CERTAIN SECTIONS AS SET OUT BELOW; PROVIDING A SEVERABILITY CLAUSE; DECLARING A PENALTY; AND PROVIDING AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS: PART 1: That CHAPTER 1, "GENERAL PROVISIONS", SECTION 16, "FIREARMS" of the Code of Ordinances of the City of College Station, Texas, be amended as set out in Exhibit "A", attached hereto and made a part of this ordinance for all purposes. PART 2: That if any provisions of any section of this ordinance shall be held to be void or unconstitutional, such holding shall in no way effect the validity of the remaining provisions or sections of this ordinance, which shall remain in full force and effect. PART 3: That any person, firm, or corporation violating any of the provisions of this chapter shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punishable by a fine of not less than Twenty-five Dollars ($25.00) nor more than Two Hundred Dollars ($200.00). Each day such violation shall continue or be permitted to continue, shall be deemed a separate offense. Said Ordinance, being a penal ordinance, becomes effective ten (10) days after its date of passage by the City Council, as provided by Section 34 of the Charter of the City of College Station. PASSED, ADOPTED and APPROVED this 8" day of WQ ber , 2011. APPROVED: Mayor ATTEST: ~4f~_ City Secreta APPROVED: City Attorney 10/3112011 FIREARMS ORDINANCE Page 2 EXHIBIT "A" That CHAPTER 1, "GENERAL PROVISIONS", SECTION 16, "FIREARMS" of the Code of Ordinances of the City of College Station, Texas, is hereby amended to read in its entirety as follows: CHAPTER 1, GENERAL PROVISIONS SECTION 16: FIREARMS A. UNLAWFUL TO SHOOT FIREARMS WITHIN CITY (1) DEFINITIONS (a) `Firearm' as used in this section means specifically, but not exclusively, any shotgun, pistol, rifle, air rifle, air pistol, B.B. gun, bow & arrow, or any other mechanism that discharges or ejects any bullet, buckshot, or any other projectile of any size by force of combustion, mechanism, or air. This term does not include pitching machines or similar devices that are designed and used only as a substitute for a human action. (b) 'One ownership' means an undivided parcel or tract of land that may be owned by a person, corporation, or other entity, or by a combination thereof, or by a tenant in common. (c) `Effective consent' means the consent of a person authorized to act, or whom the shooter reasonably believed was so authorized. (2) UNLAWFUL TO SHOOT FIREARMS WITHIN CITY It shall be unlawful to willfully or intentionally shoot a firearm within the limits of the City of College Station, Texas, except as provided hereafter. A person asserting an exception to prosecution under this section shall be required to prove the same as a defense under the provisions of the Texas Penal Code, as amended, and the Texas Code of Criminal Procedures, as amended. (3) EXCEPTED FROM THIS PROVISION (a) Shooting a shotgun, air rifle, air pistol, B.B. gun, or bow & arrow upon a tract of land of ten acres or more under one ownership, with the effective consent of the owner(s) and any tenant(s) residing thereon, and not within 300 feet of any residence or occupied building, provided that the firearm is not discharged in such a manner that it would reasonably be expected to cause any projectile to cross the boundary of the tract onto other premises. 10/31/11 FIREARMS ORDINANCE Page 3 Under this subsection, "shotgun" shall mean a 10 gauge or smaller shotgun with shot no larger than size 7. (b) Shooting a center fire or rim fire rifle or pistol of any caliber upon a tract of land of fifty acres or more under one ownership, with the effective consent of the owner(s) and any tenant(s) residing thereon, and not within 300 feet of any residence or occupied building, provided that the firearm is not discharged in such a manner that it would reasonably be expected to cause any projectile to cross the boundary of the tract onto other premises. (e) Shooting any firearm in lawful defense of self, a third person, or property, provided that the firearm is not discharged in such a manner as to unreasonably endanger innocent persons. (d) Law enforcement and animal control officers while in the lawful discharge of their duties. B. PENALTY (1) A violation of this section shall constitute a misdemeanor and upon conviction thereof shall be punishable by a fine pursuant to the General Penalty set out in Chapter 1, Section 5, of this Code of Ordinances. 10/31/11 CITY OF COLLEGE STATION LEGAL, DEPARTMENT MEMORANDUM PRIVILEGED AND CONFIDENTIAL TO: Adam C. Falco, Senior Assistant City Attorney FROM: John A. Haislet, Assistant City Attorney & Prosecutor DATE: October 31, 2011 RE: Statutory Changes Allowing Concealed Handguns on City-Owned Property. 1. Issues and Answers A. Can a municipality regulate the carrying of a concealed handgun on City-owned property and premises by a citizen individually licensed by the State of Texas to carry a concealed handgun? No. See Texas Penal Code §30.06(e), §46.035(c), §46.035(i), and Texas Local Government Code §229.001(b)(6). B. Is the City of College Station Code of Ordinances Chapter 1, Section 16, Part B titled "Unlawful to Carry Firearms in City Buildings" preempted by Texas law in regards to concealed handgun license holders? Yes. See Texas Penal Code §30.06(e), §46.035(c), §46.035(i), and Texas Local Government Code §229.001(b)(6). C. Do new provisions in State law restrict the City from adopting or enforcing employment policies that prohibit City employees from transporting or storing firearms or ammunition the employee is authorized by law to possess in a locked, privately owned motor vehicle in a parking lot, parking garage, or other parking area the City provides for employees? Yes. See Texas Senate Bill No. 321, Texas Labor Code Section 52.061. II. Discussion Significant changes in Texas law have occurred since 1995 when the City of College Station last amended the Code of Ordinances regulating firearms on City property. State law, at Texas Government Code Chapter 411, now authorizes persons to obtain a license to carry a concealed handgun. Texas Local Government Code Section 229.001(a) provides the general rule that a municipality may not adopt regulations relating to the transfer, private ownership, keeping, transportation, licensing or registration of firearms, ammunition, or firearm supplies. However, Texas Local Government Code Section 229.001(b)(6) states that the prohibition in 229.001(a) does not affect the authority a municipality has under another law to regulate the carrying of a firearm by a person other than a person licensed to carry a concealed handgun under Texas Government Code Chapter 411 Subchapter A., at (1) a public park; (2) public meeting of a LEGAL DE,PAR NIF,NT P.O. Box 9960 • r 101 TFSAS AVE. S COLLEGE. STATION • TEXAS • 77842 t'FICF. 979.764.3507• FAX 979.764.3481 Statutory Changes Allowing Concealed Handguns on City-Owned Property. Page 2 municipality, county or other governmental body; (3) political rally, parade, or official political meeting; or (4) a nonfirearms-related school, college or professional athletic event. Texas Penal Code Sections 46.03 and 46.035 contain various firearm regulations as well. In addition, Texas Penal Code Sections 30.05 and 30.06 contain certain criminal trespass provisions. A. Can a municipality regulate the carrying of a handgun on City-owned property and premises by a citizen individually licensed by the State of Texas to carry a concealed handgun? No. See Texas Penal Code §30.06(e), §46.035(c), §46.035(1), and Texas Local Government Code §229.001(b)(6). Trespass Provisions in Texas Penal Code and Exemptions on City-Owned Property for Holder of License to Carry Concealed Handgun. State law, at Texas Penal Code Section 30.05 [Criminal Trespass], provides the general rule that a person commits an offense if he enters and or remains on the property of another without effective consent and the person either had notice that entry was forbidden or received notice to depart but failed to do so. Texas Penal Code Section 30.06 [Trespass by Holder of License to Carry Concealed Handgun] provides the general rule that a license holder of a concealed handgun commits an offense if, without effective consent, the license holder received notice that entry by a license holder of a concealed handgun was forbidden and the license holder failed to depart. However, Texas Penal Code Section 30.06(e) provides a specific exception for property owned or leased by a governmental entity, with a few exceptions. This exception generally means that the City of College Station cannot prohibit concealed handguns lawfully licensed under Texas Government Code Chapter 411 on City-owned property and premises. B. Is the City of College Station Code of Ordinances Chapter 1, Section 16, Part B titled "Unlawful to Carry Firearms in City Buildings" preempted by Texas law in regards to concealed handgun license holders? Yes. See Texas Penal Code §30.06(e), §46.035(c), §46.035(i), and Texas Local Government Code §229.001(b)(6). In its current form, Chapter 1, Section 16, Part B titled "Unlawful to Carry Firearms in City Buildings" in the Code of Ordinances makes it unlawful for any person to carry a firearm in any City building, regardless of whether or not the person is duly licensed by the State of Texas to carry a concealed handgun. This ordinance section is in direct conflict with Texas Penal Code Section 30.06(e) which specifically prohibits a governmental entity from excluding entry onto its property by a license holder with a concealed handgun, so long as the property is not listed as a prohibited place under Penal Code Sections 46.03 or 46.035. Texas Penal Code Section 46.02(a) [Unlawful Carrying Weapons] generally provides for arrest and criminal prosecution for any person carrying a handgun or unlawful weapon who is not otherwise licensed by the State to carry a concealed handgun. While City policy currently prohibits city employees who are individually licensed in their private capacity to carry a concealed handgun on city-owned property and premises, State law generally allows citizens with a concealed handgun license to freely enter onto most city-owned property and premises, with the exception of the court building, while carrying a concealed Statutory Changes Allowing Concealed Handguns on City-Owned Property. Page 3 handgun. Texas Government Code Section 411.203 does allow employers (both private and public) to prohibit its employees from carrying a concealed handgun in the workplace. Limited Areas Where All Firearms, Including Lawfully Licensed Concealed Handguns, Are Prohibited. Although Texas Penal Code Section 30.05 and 30.06 now provide a general prohibition against restricting lawfully licensed concealed handguns on publicly owned property and premises, there are certain areas specified in Texas Penal Code Sections 46.03 and 46.035 where even lawfully licensed concealed handguns are prohibited. Under Texas Penal Code Sections 46.03 and 46.035, even lawfully licensed Chapter 411 concealed handguns are prohibited at places such as schools, polling places during voting, secured areas of airports, school athletic events, and court buildings. In addition, Texas Penal Code Section 46.035(c) and (i) prohibit lawfully licensed concealed handguns at any meeting of a governmental entity where notice is provided. C. Do new provisions in State law restrict the City from adopting or enforcing policies that prohibit City employees from transporting or storing firearms or ammunition the employee is authorized by law to possess in a locked, privately owned motor vehicle in a parking lot, parking garage, or other parking area the City provides for employees? Yes. See Texas Senate Bill No. 321, Texas Labor Code Section 52.061. Recent changes in State law [Senate Bill No. 321] restrict both private and public employers from adopting or enforcing policies that prohibit employees from transporting or storing firearms or ammunition the employee is authorized by law to possess in a locked, privately owned motor vehicle in a parking lot, parking garage, or other parking area the employer provides for employees. Since the City's current employment policy addressing weapons does not contain the exemptions required by State law, necessary modifications have been made to bring it into compliance with Texas Labor Code Section 52.061. III. Recommendation It is recommended that the City Council adopt the attached ordinance amending City Code of Ordinances Chapter 1, Section 16, "Firearms" to clarify firearms regulations and to comply with State law by removing provisions that make it unlawful for individuals with a concealed handgun license to enter onto City property and premises while carrying a concealed handgun. It is also recommended that the City's employment policy on weapons be updated to reflect recent changes in State law. If you have any questions or concerns about this subject please contact our office.