The State Fair of Texas’ new policy prohibiting attendees from carrying firearms at the Fair will remain in place after the Texas Supreme Court denied an attempt by the Texas Attorney General’s office to halt the ban- and took the Attorney General’s office to task in the process.
The litigation involving the State Fair’s gun ban began on August 29, when the Texas Attorney General’s office filed suit in Dallas County District Court against the City of Dallas and the State Fair of Texas, seeking an injunction regarding the gun ban. After a hearing on September 19, State District Judge Emily Tobolowsky denied the injunction sought by the Attorney General’s office.
The case was then appealed to the newly created 15th Court of Appeals, which also denied the injunctive relief sought by the Attorney General’s office.
The Attorney General’s office then took the case up to the Texas Supreme Court, where it was also unsuccessful in halting the State Fair’s gun ban. None of the nine Republican justices on the Texas Supreme Court noted a dissent from the denial of the Attorney General’s attempt to block the ban.
Three Justices raised eyebrows by issuing an opinion concurring with the denial in which they took the rare and extraordinary step of calling out how the Attorney General’s office handled the case. The concurring opinion, authored by Justice Jimmy Blacklock and joined by Chief Justice Nathan Hecht and Justice Evan Young, highlighted the failure of the Attorney General’s office to argue that the State Fair of Texas was legally obligated to allow attendees to carry handguns.
“Remarkably, the State’s presentation to this Court takes no position on whether the State Fair of Texas, a private entity, has the legal authority to exclude patrons carrying handguns from the Fair. This may surprise many observers, given that the ostensible purpose of this litigation is to determine whether Texas law entitles law-abiding Texans to carry handguns at the State Fair despite the Fair’s recently enacted policy to the contrary,” wrote Blacklock in the concurring opinion.
“That is a very important question. It is a question on which both law-abiding handgun owners and the operators of the State Fair deserve a clear answer. It is a question to which further
litigation may provide a clearer answer. But it is not a question answered—or even addressed—by the State’s emergency filings in this Court. This Court cannot possibly order the State Fair to allow handguns to be carried at this year’s Fair when the party seeking that relief does not even argue that Texas law obligates the Fair to do so.”
The opinion concluded, “It should go without saying—though perhaps it cannot be said often enough—that a judge’s role in this case is not to decide whether the State Fair made a wise decision. Our job, instead, is to decide whether Texas law allowed the State Fair to make
the decision for itself. The State declines to take a position on that essential question but nevertheless asks this Court for an injunction overriding the State Fair’s decision. It should also go without saying that our answer, for now, must be no.”
Blacklock’s concurring opinion also references a formal opinion issued by Texas Attorney General Ken Paxton in 2016 in which he took the position that a private entity that leases property from a governmental entity could prohibit the carrying of handguns on the leased premises.
“Section 411.209 of the Government Code creates a civil penalty for a state agency or a political subdivision that provides notice that a license holder carrying a handgun is prohibited on property owned by the governmental entity unless carrying a handgun in such locations is expressly prohibited under the Penal Code. Section 411.209 applies only to a state agency or political subdivision of the State and does not address whether a private entity, including an independent nonprofit entity, may provide notice to license holders that the carrying of handguns is prohibited in the private entity’s offices. As long as the state agency or political subdivision leasing the property to the private entity has no control over the decision to post such notice, the state agency or political subdivision lessor would not be the entity responsible for the posting and would therefore not be subject to a civil penalty under Section 411.209,” wrote Paxton in the 2016 opinion.
That Attorney General’s Opinion, KP-0108, was withdrawn by Paxton’s office last month. However, it has not been replaced by an opinion offering differing guidance.
Paxton’s office also has a demonstrated track record of taking the position that private entities who lease property from a governmental entity may prohibit the carrying of handguns on the property.
In response to complaints filed with Paxton’s office in 2016 regarding signs posted at the Fort Worth Zoo prohibiting the carrying of handguns, the Attorney General’s office determined that the signs were permissible.
“After review, the OAG determines the 30.06 signs at issue were posted by the association, which possesses the exclusive right to post signage on the zoo premises under the terms of its fee-for-services management contract with the city. Further, a reviewing court would likely conclude that under existing law, a private, non-profit corporation such as the association is not considered a political subdivision of the state for purposes of section 411.209(a) of the Government Code. Accordingly, the OAG finds signage posted at the entrance to the zoo is not in violation of section 411.209 of the Government Code. The OAG is closing these complaints,” said the Attorney General’s office in a 2016 letter to then-Fort Worth Mayor Betsy Price.
That same year, the Attorney General’s office also sent letters to the City of Dallas and the City of Plano closing complaints involving private entities that banned the carrying of firearms on property they leased from the cities.
Blacklock, the author of the concurring opinion that highlighted the failure of Paxton’s office to argue that the State Fair of Texas is legally required to allow law-abiding attendees to carry firearms, has established himself as a staunch conservative on the Texas Supreme Court.
Paxton praised Blacklock’s appointment to the Texas Supreme Court in 2017.
“I am proud of Jimmy’s tireless legacy of defending the liberty of Texans at the Office of the Governor and the Office of the Attorney General,” Attorney General Paxton said. “He is a constitutional conservative who will faithfully apply the law and not bend to the desire to rewrite it from the bench. That devotion is absolutely vital for a court that handles so many of Texas’ most important cases.”
