The state’s highest civil court rejected an emergency appeal by the Office of the Attorney General (OAG) challenging the legality of a new rule by the State Fair of Texas banning concealed carry during this year’s fair, which begins Friday.
Final rejection of the state’s request for a temporary injunction came Thursday evening, just a day after the justices of the state’s new 15th Court of Appeals also rejected the OAG’s arguments, leading to Attorney General Ken Paxton’s appeal to the Texas Supreme Court.
Justice Jimmy Blacklock was joined by Chief Justice Nathan Hecht, and Justice Evan Young in a concurring opinion explaining the rationale behind why the court rejected the request to stay the carry ban — and did not hold back in their criticism of the appeal.
According to the three justices, the question of whether the Fair, which is a private non-profit that leases the fair grounds from the City of Dallas, is an important question. However, the State failed to present that argument to the court.
“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,” the concurrence states.
“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.”
Instead of arguing whether the Fair had the authority, the state’s position centered on whether the City of Dallas may promote or enforce the Fair’s carry ban, the justices explained.
“Assume the State is correct. Assume that section 411.209(a) of the Government Code prohibits the City of Dallas from assisting in the enforcement of, or associating itself in any way with, the State Fair’s gun policy,” Blacklock wrote.
“Even if that is true — and it may well be — this would not mean that handgun owners are entitled by law to carry their weapons at the State Fair despite the State Fair’s contrary policy. On that pivotal question, the State’s filings are conspicuously silent.”
The OAG had also argued in its appeal that the Fair’s policy would be unenforceable if the Dallas Police Department was unable to assist in its enforcement. But the justices shot this argument down as well, asserting that other security personnel as well as the Dallas County District Attorney’s Office would be unhampered with enforcing trespass against unlawful carrying.
They also explained how a hypothetical victory on this argument could cause otherwise lawful gun-owners the misimpression they have been greenlighted with the privilege to carry at the Fair.
“To the extent the State advocates for such an ill-conceived half-measure, it does so unadvisedly,” they said in rebuke.
On another key point, the justices took note of the OAG’s decision to withdraw a 2016 Opinion that substantiated the right of private lessees to restrict firearms on the rented property, saying that a withdrawal is not the same thing as a repudiation of its legal findings, nor has the OAG demonstrated to the Court why the prior analysis was wrong.
“If the AG Opinion was correct about the common-law authority of private parties who lease public property, then the privately operated State Fair may well have the authority to exclude handguns from the Fair, and this is the case even if the State is completely right about the City of Dallas’s obligations under section 411.209,” the court wrote.
The justices also said the OAG’s allegation that the Fair’s policy is “actually the city’s policy” through positions of influence and financial support only amounted to a “scattered and indeterminate” connection that did not give rise to the kind of control that would be necessary to “make the State Fair’s decisions about guns imputable to the City.”
On a final point, the court did say a future legal challenge could reveal impermissible influence by the City in the Fair’s policy making decision, but at this point, the facts show the Fair’s governing board made its own decision to prohibit guns at this year’s Fair.
“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,” the court concluded.
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