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Northeast Times | October 19, 2021

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AG Paxton: Local Governments Must Allow the Sale of Firearms

AG Paxton: Local Governments Must Allow the Sale of Firearms

AUSTIN – Texas Attorney General Ken Paxton today issued a legal opinion following a request from Representative Dustin Burrows regarding the sales of firearms in Texas municipalities and counties. The opinion concludes that municipal and county authorities may not use emergency powers to regulate or restrict the sale of firearms.

“State law provides several emergency powers to local governments to control movement within their region during a disaster, which serves our communities well during public health events like the one we’re fighting now. However, local regulation of the sale, possession, and ownership of firearms is specifically prohibited under Texas law,” said Attorney General Paxton. “Under our laws, every Texan retains their right to purchase and possess firearms.”

Under the Texas Local Government code, municipal governments possess the limited authority to regulate the use of firearms during a disaster; however, that authority does not extend to the regulation of transfer, possession, ownership or sale of firearms.

For information on the spread or treatment of Coronavirus (COVID-19), please visit the Texas Department of State Health Services website.

Read a copy of the opinion below:
The Honorable Dustin Burrows
Chair, House Ways and Means Committee
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910
Opinion No. KP-0296
Re: Whether sections 229.001 and 236.002 of the Local Government Code prohibit
municipal or county officials from restricting the sale of firearms through an
emergency declaration (RQ-0341-KP)
Dear Representative Burrows:
You ask whether city or county officials may prohibit the sale of firearms through an
emergency declaration that excludes firearms retailers as essential businesses.1

Multiple provisions within the Government Code recognize governmental entities in Texas
may require additional authority during times of disaster to address emergency situations. See
TEX. GOV’T CODE §§ 418.001–.261. Relevant here, the Legislature authorized the presiding
officer of a governing body of a municipality or county to declare a local state of disaster. Id.
§ 418.108(a); see id § 418.004(6).
2
Once a local state of disaster has been declared, the “county
judge or the mayor of a municipality may control ingress to and egress from a disaster area under
the jurisdiction and authority of the county judge or mayor and control the movement of persons
and the occupancy of premises in that area.” Id. § 418.108(g). Pursuant to that authority, some
counties and municipalities in Texas, in recent days, declared local disasters due to the spread of
the disease COVID-19 and issued orders requiring all non-essential businesses to limit or cease
operations.3
You indicate that some of these orders exclude firearms retailers as essential
1
See Letter from Honorable Dustin Burrows, Chair, House Comm. on Ways & Means, to Honorable Ken
Paxton, Tex. Att’y Gen. at 1 (Mar. 24, 2020), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinionrqs (“Request Letter”).
2
Your question is limited to municipal or county authority to restrict the sale of firearms. Request Letter at
1. You do not ask about, and we do not address, any emergency authority the Governor has to limit or suspend the
sale of firearms during a disaster declaration. See TEX. GOV’T CODE § 418.019 (“The governor may suspend or limit
the sale, dispensing, or transportation of alcoholic beverages, firearms, explosives, and combustibles.”).
3
See, e.g., Order of the Mayor of the City of Austin Steve Adler (Mar. 24, 2020), available at
http://www.mayoradler.com/wp-content/uploads/2020/03/Order-20200324-007-Stay-Home-Work-Safe.pdf.
The Honorable Dustin Burrows – Page 2
businesses, thereby prohibiting or restricting those retailers from operating their businesses. See
Request Letter at 1.
While the Legislature granted local officials certain emergency powers to address disaster
situations, that local authority is not without limitation. Relevant to your question, provisions in
the Local Government Code prohibit municipalities and counties from regulating, among other
things, the transfer, possession, ownership, or sale of firearms, “notwithstanding any other law.”
See TEX. LOC. GOV’T CODE §§ 229.001(a), 236.002(a). Section 229.001 of the Local Government
Code prohibits certain municipal regulation:
Notwithstanding any other law, . . . a municipality may not adopt
regulations relating to:
(1) the transfer, possession, wearing, carrying, ownership, storage,
transportation, licensing, or registration of firearms, air guns,
knives, ammunition, or firearm or air gun supplies or accessories;
(2) commerce in firearms, air guns, knives, ammunition, or firearm
or air gun supplies or accessories; or
(3) the discharge of a firearm or air gun at a sport shooting range.
TEX. LOC. GOV’T CODE § 229.001(a) (emphasis added). Using almost identical language, section
236.002 of the Local Government Code prohibits counties from adopting regulations related to the
same matters. Id. § 236.002(a). Texas courts recognize that the phrase “relating to” is a “very
broad term.” RSR Corp. v. Siegmund, 309 S.W.3d 686, 701 (Tex. App.—Dallas 2010, no pet.);
see also Kirby Highland Lakes Surgery Ctr., L.L.P. v. Kirby, 183 S.W.3d 891, 898 (Tex. App. —
Austin 2006, no pet.) (explaining that courts have construed the phrase “related to” within the
arbitration context to be “extremely broad” and “capable of expansive reach” (citations and
quotation marks omitted)). In addition, when the Legislature uses the phrase “notwithstanding any
other law,” courts construe that language as “an express, unambiguous conflicts-of-law provision.”
Molinet v. Kimbrell, 356 S.W.3d 407, 414 (Tex. 2011). Thus, although section 418.108 of the
Government Code may generally allow municipal and county officials to “control the movement
of persons and the occupancy of premises” in a local disaster area, notwithstanding that general
authority, emergency orders from local officials may not relate to the transfer, possession,
ownership or sale of firearms.
4

4
Some local disaster declarations and related orders restrict the operation of business to delivery or curbside
service for certain retail operations. However, federal regulations governing the purchase of firearms generally require
in-person transactions with licensed dealers. See, e.g., 27 C.F.R. § 478.124(a) (requiring a licensed dealer to record
all firearms transactions on a firearms transaction record, Form 4473); see also Bureau of Alcohol, Tobacco, Firearms
& Explosives, Form 4473, available at https://www.atf.gov/firearms/docs/4473-part-1-firearms-transaction-recordover-counter-atf-form-53009/download (requiring form preparation “in original only at the licensed premises” of the
dealer). Thus, limiting retail sales of firearms to delivery or curbside service will effectively prohibit firearms sales
from licensed dealers.
The Honorable Dustin Burrows – Page 3
In addition to prohibiting county or municipal regulation in these areas, the Legislature
articulated the effect of a municipal or county regulation related to the transfer, possession,
ownership or sale of firearms. Any attempt to adopt or enforce an “ordinance, resolution, rule, or
policy . . . , or an official action, including in any legislative, police power, or proprietary capacity”
taken in violation of subsection 229.001(a) or 236.002(a) “is void.” TEX. LOC. GOV’T CODE
§§ 229.001(a-1), 236.002(b).
5
The statutes’ unambiguous words disclose the Legislature’s intent:
if a municipality or county adopts a regulation related to the transfer, possession, ownership or sale
of firearms, that regulation will be void to the extent of a conflict with section 229.001(a) or section
236.002(a). See Tex. Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 639
(Tex. 2010). Thus, municipal and county officials may not use their emergency powers under
section 418.108 of the Government Code to regulate or restrict the sale of firearms.
Section 229.001 of the Local Government Code recognizes municipal authority under other
law to “regulate the use of firearms, . . . in the case of an insurrection, riot, or natural disaster if
the municipality finds the regulations necessary to protect public health and safety.” TEX. LOC.
GOV’T CODE § 229.001(b)(4) (emphasis added). Thus, municipal governments possess limited
authority to regulate firearms during a disaster. Id. § 229.001(a). However, the action of using a
firearm is distinct from the transfer, ownership, or sale of the firearm, each of which can be
accomplished without actual use. Thus, municipal authority to regulate the use of firearms during
a disaster does not grant authority to also regulate the transfer, possession, ownership or sale of
firearms.
5
The Legislature authorized the Attorney General to “bring an action in the name of the state to obtain a
temporary or permanent injunction” against a municipality or county adopting a regulation in violation of these
provisions. TEX. LOC. GOV’T CODE §§ 229.001(f), 236.002(f).
The Honorable Dustin Burrows – Page 4
S UMMAR Y
Subsections 229.001(a) and 236.002(a) of the Local
Government Code prohibit a municipality or county from adopting
regulations related to the transfer, possession, or ownership of
firearms, or commerce in firearms. These provisions apply to
municipal and county regulation “notwithstanding any other law.”
Thus, while municipal and county officials possess general
emergency authority to control the movement of persons and the
occupancy of premises in a local disaster area under Government
Code section 418.108, such orders may not regulate or restrict the
sale of firearms.
Very truly yours,
KEN PAXTON
Attorney General of Texas