As Open Carry Takes Effect, Local Officials Predict Lawsuits

As the New Year arrived, so did a new option for gun-toting Texans. 

The state’s roughly 826,000 handgun license holders, who previously had to keep their firearms concealed, can now carry them openly in a hip or shoulder holster.

Across Texas, law enforcement officials, city leaders and business owners are bracing for lawsuits.

That's because state officials have so far largely left interpretation of the new law, which Gov. Greg Abbott signed in June, up to local authorities. Prosecutors and police chiefs across the state’s 254 counties will now each determine their own answer to what was one of the most hotly debated questions of the 2015 legislative session: whether police officers can ask those visibly carrying guns to present their permits.

“There is a difference of opinion about whether or not just the mere fact that someone is walking down Main Street carrying a pistol in a holster is sufficient probable cause for a police officer to insist on seeing their handgun permit,” said Kevin Laurence, the executive director of the Texas Municipal Police Association. “We are going to wind up having to get court cases out of this defining exactly what authority police officers have.”

Heralding the new open carry law as a much-needed update to the state’s gun regulations, Second Amendment rights activists say it lifts a burden unfairly placed on law-abiding citizens. 

"I believe the state is prepared for a smooth, simple transition from concealed to open carry, though I expect most people will continue to carry concealed,” state Sen. Craig Estes, the Wichita Falls Republican who sponsored the legislation, said in a statement. “I truly believe the new law will benefit all law-abiding Texans."

But the legislation’s critics have warned it could have negative consequences for tourism, retail and public safety in the state. 

And when it comes to enforcement, confusion reigns. 

Laurence said his organization, which represents more than 22,000 Texas law enforcement officers at the state, county and local level, has advised police officers to seek guidance from their departments on how they should approach open carry — and whether they need some evidence or suspicion of criminal activity to ask to see someone’s gun permit.

“The biggest emotion going on out there is confusion,” he said.

While the law protects existing "gun-free zones" — school campuses, courthouses and certain public property, for example — there’s still some uncertainty about where such zones begin and end.  

In September, state Sen. John Whitmire, a Houston Democrat who opposes open carry, asked Texas Attorney General Ken Paxton whether the law merely gave schools the authority to prohibit guns in buildings and classrooms, or whether that authority extended to all district property, including parking lots, sidewalks and driveways.

Attorneys for Hays and Tom Green counties both asked Paxton to clarify their authority to limit handguns in multipurpose government buildings that also house courts. Their question boils down to whether officials may only ban guns in rooms where court proceedings take place — or if they can bar them from an entire building if the building houses a courtroom, said Hays County Criminal Attorney Wes Mau.

Paxton offered some clarification on the new law in three advisory opinions issued on Dec. 21. He ruled that school districts could prohibit weapons on all district property, including sidewalks and driveways, but that local officials could only ban guns from courtrooms, not entire courthouse facilities. 

Complicating matters for government entities is a second law legislators passed in 2015, one that imposes a fine on local officials who improperly ban handguns in public places. 

But it’s not just government entities grappling with open carry. Businesses in Texas are choosing between allowing open carry of handguns — which can make patrons uneasy — or facing an angry backlash from gun rights activists if they don’t.

Shortly after the law passed, Whataburger announced it would not allow open carry in its restaurants. Targeted outrage and calls for a boycott of the San Antonio-based fast food chain led CEO Preston Atkinson to make a public statement on the policy.

He said that while the company supports the Second Amendment, it made the "business decision" not to allow open carry in its restaurants "a long time ago."  

"We’re the gathering spot for Little League teams, church groups and high school kids after football games," Atkinson wrote. "We’ve had many customers and employees tell us they’re uncomfortable being around someone with a visible firearm who is not a member of law enforcement, and as a business, we have to listen and value that feedback.”

Under the open carry law, if a business wants to prohibit all handguns on its property, it must post two signs in English and Spanish, one banning concealed handguns and another banning open carry.

The new requirements — and the legal threat companies face for not complying — are especially burdensome for small businesses that lack corporate resources like an in-house lawyer, said state Rep. Diego Bernal, a Democrat.

Since October, Bernal has been distributing signs that meet state requirements to small businesses in his San Antonio district that wish to ban firearms.

“The state has zero plan to let people know what to expect — folks are kind of in the dark,” said Bernal. “There are going to be a patchwork of interpretations and probably a patchwork of lawsuits. It was so poorly done.”