This week, the Texas House Committee on Homeland Security and Public Safety made a formal request for an opinion by Texas Attorney General Greg Abbott regarding a school district’s authority to allow employees and trustees to carry and use concealed handguns at meetings, on school premises, and at school-related sporting and interscholastic events.  The opinion request observed that some school districts designate an employee to carry a concealed handgun on school property.  These policies have been termed the “Guardian Plan.”  This summer, the 83rd Texas Legislature also passed House Bill 1009, which allows a board to designate an employee as a “School Marshal.”

The Guardian Plan is based on Texas Penal Code § 46.03(a)(1), in combination with the school board’s general authority to manage and oversee public schools under Texas Education Code §§ 11.151(b) and 11.151(b)(15).  Under these plans, a school district will adopt a board policy allowing the board to authorize a “Guardian” to carry a handgun on school property and to use it under limited defined, emergency situations.  Guardians typically must have a current concealed handgun license.  However, there are limitations to these plans.  Texas Penal Code § 46.035 prohibits a license holder from carrying a handgun at a sporting or interscholastic event and at board meetings.  The Committee on Homeland Security and Public Safety, therefore, asked the Attorney General whether the potential conflict between Penal Code § 46.03(a)(1) authorizing Guardian Plans overrides the prohibition under Penal Code § 46.035 to carry a handgun to board meetings and sporting and interscholastic events.

The opinion request also raised this issue of whether a school district may simultaneously appoint one person to serve as a School Marshal, as authorized by House Bill 1009, and another person to serve as a Guardian under a Guardian Plan.  House Bill 1009, known as the Protection of Texas Children Act, creates an additional category of certified peace officer.  This “School Marshal” is designated by the school board and is authorized to carry a concealed handgun on school property.  School Marshals must be district employees, licensed under the Texas Commission on Law Enforcement Officer Standards and Education (TCLEOSE), have a concealed handgun license, pass a psychological exam, and have eighty hours of law enforcement training.

House Bill 1009 imposes other restrictions and requirements.  As a result, districts may choose a Guardian Plan over a School Marshal Plan because the Guardian Plan provides school districts with more flexibility and allows districts to define its own regulations.  According to the opinion request, one significant difference is that a School Marshal must be an employee.  “As a result, some districts that wish to designate a school board member(s) as a Guardian are bypassing the option of a School Marshal Plan and opting for the Guardian Plan.”  The issue before the Attorney General then becomes whether serving as a Guardian falls within the scope of official duties of a school board trustee under Texas Education Code § 11.1511(b)(15).  In addition, if the Attorney General finds that Penal Code § 46.035 prohibits a Guardian at board meetings and sporting or interscholastic events, the Committee on Homeland Security and Public Safety asked whether a district may simultaneous appoint a School Marshal for board meetings and sporting events, and a Guardian for an armed presence in other locations.

Given recent school shootings, including one this week at a Nevada middle school, districts are grappling with how to properly implement safety measures on their campuses.  The districts are in need of clarification of their legal rights and responsibilities in this area because the stakes are extremely high when student safety and guns on campus are involved.  A decision is not expected for several months. Stay tuned and look for updates on this case in the Texas School Administrators’ Legal Digest.

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