In RE THE STATE OF TEXAS v. the State of Texas

Supreme Court of Texas
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No. 24-0813
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In re The State of Texas,
Relator

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On Petition for Writ of Mandamus
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JUSTICE BLACKLOCK, joined by Chief Justice Hecht and Justice
Young, concurring in the denial of the petition for writ of mandamus and
motion for emergency relief.

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. 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 State Fair of Texas is a private entity that operates the Fair
on public land leased from the City of Dallas. Whether Texans have a
legal right to carry handguns at a mass public event of this nature is not
a question that should ever be in doubt. Law-abiding handgun owners
in Texas know that there are certain places where they may not carry
their weapon. They need to know—with maximum clarity—whether the
State Fair is one of those places. Yet the State’s filings do not even
attempt to answer that question. Instead of arguing that the State Fair
lacks the authority to prohibit guns at the Fair, the State instead argues
that the City of Dallas may not promote or enforce the State Fair’s
prohibition on guns. 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. 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. 1

1 The State contends that the Fair’s gun policy would be unenforceable

if the City’s police department is prohibited from enforcing it. That is obviously
wrong. The Fair intends to hire private security, and the Dallas County
District Attorney is not a party to this case. Perhaps the worst possible
outcome from all of this would be a court order that sides with the State but
actually only enjoins the City of Dallas and its police department based on
section 411.209, which is the kind of order for which much of the State’s
briefing seems to advocate. That order would leave the State Fair’s gun policy
in place—and expose those who violate it to potential liability at the hands of
local government officials who do not work for the City—while giving the

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An Attorney General Opinion issued in 2016 was not so silent. It
concluded that private parties leasing government-owned facilities
cannot make carriage of handguns on their leased property a crime by
posting the familiar signage described by sections 30.06 and 30.07 of the
Penal Code. Tex. Att’y Gen. Op. KP-0108, at 3 (2016). The AG Opinion
went on, however, to address a key question that is entirely unaddressed
by the State’s filings—whether private parties leasing government
property can exclude carriers of handguns by invoking the traditional
authority of a tenant to control entry to the property and to exclude
non-compliant visitors as trespassers. The Opinion concluded that a
private party in such a position likely could prohibit guns in this way
under Texas law. Id. at 3 n.2.
AG Opinion KP-0108 was recently withdrawn pending
consideration of a related opinion request, RQ-0558-KP. But
withdrawing the Opinion is not the same thing as repudiating its
analysis or explaining why it was wrong, which the State has not
attempted to do in this Court. 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. If the AG Opinion was wrong, then surely the party seeking a

law-abiding, gun-carrying public the misimpression that the courts have
green-lighted their carriage of handguns at the Fair. To the extent the State
advocates for such an ill-conceived half-measure, it does so unadvisedly.

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result at odds with its own publicly stated opinion must at least explain
why its opinion was wrong.
The State’s filings obliquely suggest that there may be Second
Amendment problems with the Fair’s gun policy, but the suggestion is
slight and indirect, and any such argument is not explained. Likewise,
in its briefing to the court of appeals, the State alleged that the City of
Dallas controls or influences the State Fair in various ways, insinuating
that the State Fair’s gun policy is actually the City’s policy. Even
accepting the State’s factual allegations as true—which we are not
obliged to do at this stage—the allegations that the City controls the
Fair amount only to scattered and indeterminate financial connections
between the entities, not the kind of control that would make the State
Fair’s decisions about guns imputable to the City. The State further
alleged that the City appoints community members to the South
Dallas/Fair Park Opportunity Fund Board, but the State failed to
explain how that board is connected to the State Fair or how it may have
influenced the Fair’s gun policy, if at all.
While it is possible that future litigation could reveal that the City
impermissibly controlled or influenced the State Fair’s gun policy, it is
not possible for an impartial court to conclude at this stage of the case
that anything like that has happened. The factual landscape could
certainly change as this litigation proceeds. But at this stage, every
indication is that the State Fair’s private 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,

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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.

James D. Blacklock
Justice

OPINION FILED: September 26, 2024

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