As we noted earlier this week, a number of stay-at-home orders that have been issued for the higher population counties in Texas have resulted in gun stores being shut down. In response to the closings, Texas Rep. Dustin Burrows requested a formal opinion on the counties’ authority to deprive Texans of access to firearms and ammunition during an emergency.
Paxton has just released an opinion letter (PDF) stating unequivocally that under the Texas preemption laws, counties do not have the right to order that gun stores be closed.
As Paxton wrote,
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.” …
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). 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….
Texas law does give counties the authority to regulate the use of guns during an emergency to protect public health or safety. However . . .
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.
In other words, cities and counties can’t order gun stores to close their doors. Period.
You can read the entire letter here.
