TPWD: January 27, 2022 Commission Meeting Agenda

January 26-27, 2022, Commission Meeting Agenda

Work Session

Commission Agenda Items

November 3-4, 2021, Transcripts

Commission Meeting Agenda Item No. 1
Presenter: Luis Sosa

Action
Implementation of Legislation during the 87th Texas Legislative Session – House Bill 1927
Relating to Provisions Governing the Carrying of a Firearm
Recommended Adoption of Proposed Changes
January 27, 2022

I. Executive Summary: With this item staff is seeking adoption of published proposed amendments to rules governing the possession, display, and use of firearms on state parks, wildlife management areas, and coastal management areas in response to the passage of House Bill (H.B.) 1927 by the most recent regular session of the Texas Legislature.

II. Discussion: Under the provisions of H.B. 1927 (Regular Session, 2021), a person 21 years of age or older who is not otherwise prohibited by state or federal law from possessing a firearm may carry a handgun (provided it is concealed or in a holster) without a permit in any location where such possession is not expressly prohibited by statute or prohibited pursuant to statutory authority granted by statute. Under the provisions of H.B. 1927, the Texas Parks and Wildlife Commission does not have the authority to establish regulations to modify or prohibit the effect of the legislation. The proposed rules (located at Exhibits A, B, and C) comport existing Texas Parks and Wildlife Department regulations with the intent of the legislature.

III. Recommendation: The staff recommends that the Texas Parks and Wildlife Commission adopt the following motion:

“The Texas Parks and Wildlife Commission adopts amendments to 31 TAC, §59.131 and §59.134, concerning State Park Operational Rules, to 31 TAC, §65.199, §65.202, and §65.203, concerning Public Hunting Proclamations, and to 31 TAC §57.1011 and §57.1012, concerning Coastal Management Areas with changes as necessary to the proposed text as published in the December 24, 2021 issue of the Texas Register (46 TexReg 8989).”

Attachments – 3

Exhibit A – Proposed State Park Rules of Conduct
Exhibit B – Proposed Public Hunting Proclamation Rules
Exhibit C – Proposed Coastal Management Area Rules

Commission Agenda Item No. 1
Exhibit A

STATE PARK OPERATIONAL RULES

RULES OF CONDUCT IN PARKS

PROPOSAL PREAMBLE

1. Introduction

The Texas Parks and Wildlife Department proposes amendments to 31 TAC §59.131 and §59.134, concerning State Park Operational Rules. The proposed amendments would comport department rules governing the possession and display of handguns by visitors to state parks with the provisions of legislation enacted in the most recent general session of the Texas Legislature. Under the provisions of House Bill 1927 (Regular Session, 2021), a person 21 years of age or older who is not otherwise prohibited by state or federal law from possessing a firearm may carry a handgun in a holster without a permit in any location where such possession is not expressly prohibited. Under the provisions of H.B. 1927, the Texas Parks and Wildlife Commission does not have the authority to establish regulations to modify or prohibit the effect of the legislation.

The proposed amendment to §59.131, concerning Definitions, would add a reference to applicable provisions of the Penal Code to the definition of “arms and firearms” to accommodate the effect of H.B. 1927.

The proposed amendment to §59.134, regarding Rules of Conduct in State Parks, would alter current rule to the effect of ensuring that department regulations regarding the possession and display of handguns in state parks do not conflict with the provisions of House Bill 1927. Additionally, the proposed amendment would alter current language regarding exceptions to the prohibition of display and use of arms and firearms to clarify that the exceptions exist only during the authorized activities and not at any other time the person is within the park.

Robert Macdonald, Regulations Coordinator, has determined that for each of the first five years that the rules as proposed are in effect, there will be no fiscal implications to state or local governments as a result of administering or enforcing the rules.

Mr. Macdonald also has determined that for each of the first five years that the rules as proposed are in effect, the public benefit anticipated as a result of enforcing or administering the proposed rules will be compliance with the statutory directives of the legislature.

Under provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. Those guidelines state that an agency need only consider a proposed rule’s "direct adverse economic impacts" to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers "direct economic impact" to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services. The department has determined that because the proposed rules regulate conduct of visitors to state parks, there will be no direct effect on small businesses, micro-businesses, or rural communities. On this basis, the department has a determined that neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies.

The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rules.

The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.

In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS). The rules as proposed, if adopted, will neither create nor eliminate a government program; not result in an increase or decrease in the number of full-time equivalent employee needs; not result in a need for additional General Revenue funding; not affect the amount of any fee; not create a new regulation; not expand an existing regulation; neither increase nor decrease the number of individuals subject to regulation; and not positively or adversely affect the state’s economy.

Comments on the proposed rule may be submitted to Chief Wes Masur, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 389-8001; email: wes.masur@tpwd.texas.gov or via the department website at www.tpwd.texas.gov.

The amendments are proposed under Parks and Wildlife Code, §13.101, which provides the commission with authority to promulgate regulations governing abusive, disruptive, or destructive conduct of persons; the activities of park users including camping, swimming, boating, fishing, or other recreational activities; and conduct which endangers the health or safety of park users or their property.

The proposed amendments affect Parks and Wildlife Code, Chapter 13.

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§59.131. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Arms and firearms — Any device from which shot, a projectile, arrow, or bolt is fired by the force of an explosion, compressed air, gas, or mechanical device. To include, but not limited to, any device described by Penal Code, §46.01(3), rifle, shotgun, handgun, air rifle, pellet gun, longbow, cross bow, sling shot, blow gun, or dart gun.

(2) – (20) (No change.)

§59.134. Rules of Conduct in Parks.

(a) – (c) (No change.)

(d) Arms and Firearms. It is an offense for any person to display or discharge an arm or firearm in a state park, except while [unless]:

(1) the person is participating in a public hunting activity within the state park as[that has been] authorized by [written order of the director so long as the person is in compliance with the] applicable public hunting rules and regulations;

(2) (No change.)

(3) the person is licensed to possess and carry a handgun under Government Code, Chapter 411, Subchapter H, and is in possession of and[and/or] carrying the handgun in compliance with applicable law, including, but not limited to, applicable regulations adopted pursuant to Government Code, Chapter 411, Subchapter H;[or]

(4) the person carries a handgun in a holster in compliance with Penal Code, Chapter 46; or

(5)[(4)] the person has been authorized to do so by written order of the director.

(e) – (q) (No change.)

Issued in Austin, Texas, on

Commission Agenda Item No. 1
Exhibit B

PUBLIC HUNTING PROCLAMATION

PROPOSAL PREAMBLE

1. Introduction

The Texas Parks and Wildlife Department proposes amendments to 31 TAC §§65.199, 65.202, and 65.203, concerning the Public Hunting Proclamation. The proposed amendments would comport department rules governing the possession and display of handguns on wildlife management areas operated by the department with the provisions of legislation enacted in the most recent general session of the Texas Legislature. Under the provisions of House Bill 1927 (Regular Session, 2021), a person 21 years of age or older who is not otherwise prohibited by state or federal law from possessing a firearm may carry a handgun in a holster without a permit in any location where such possession is not expressly prohibited. Under the provisions of H.B. 1927, the Texas Parks and Wildlife Commission does not have the authority to establish regulations to modify or prohibit the effect of the legislation.

The proposed amendment to §65.199, concerning General Rules of Conduct, §65.201, concerning Motor Vehicles, and §65.203, concerning Hunter Safety, would create exceptions to current rules regarding possession of firearms to allow persons to possess a handgun in compliance with applicable law, including, but not limited to, Penal Code, Chapter 46 and Government Code, Chapter 11, Subchapter H. The proposed amendment to §65.203 would also make nonsubstantive changes to enhance clarity.

2. Fiscal Note.

3. Public Benefit/Cost Note.

Mr. Macdonald also has determined that for each of the first five years that the rules as proposed are in effect:

(A) The public benefit anticipated as a result of enforcing or administering the proposed rules will be compliance with the statutory directives of the legislature.

(B) Under provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. Those guidelines state that an agency need only consider a proposed rule’s "direct adverse economic impacts" to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers "direct economic impact" to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services. The department has determined that because the proposed rules regulate conduct of visitors to public hunting lands, there will be no direct effect on small businesses, micro-businesses, or rural communities. On this basis, the department has a determined that neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

(C) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies.

(D) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rules.

(E) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.

(F) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS). The rules as proposed, if adopted, will:

(1) neither create nor eliminate a government program;

(2) not result in an increase or decrease in the number of full-time equivalent employee needs;

(3) not result in a need for additional General Revenue funding;

(4) not affect the amount of any fee;

(5) not create a new regulation;

(6) not expand an existing regulation;

(7) neither increase nor decrease the number of individuals subject to regulation; and

(8) not positively or adversely affect the state’s economy.

4. Request for Public Comment.

5. Statutory Authority.

The amendments are proposed under Parks and Wildlife Code, §81.403, which allows the department to issue permits authorizing access to public hunting land or for specific hunting, fishing, recreational, or other use of public hunting land or a wildlife management area and requires the commission to prescribe by rule the conditions for the issuance and use of such permits, and §81.405, which provides the commission with authority to adopt rules governing recreational activities in wildlife management areas.

The proposed amendments affect Parks and Wildlife Code, Chapter 81.

6. Rule Text.

§65.199. General Rules of Conduct.

(a) – (b) (No changes.)

(1) (No change.)

(2) possess a firearm, archery equipment, arrow gun, air gun, or any other device for taking wildlife resources on public hunting lands, except for persons authorized by the department to hunt or conduct research on the area, commissioned law enforcement officers, and department employees in performance of their duties; provided, however, a person may possess a handgun in compliance with applicable law, including, but not limited to, the provisions of Penal Code, Chapter 46, and Government Code, Chapter 411, Subchapter H.

(3) – (19) (No change.)

(d) (No change.)

§65.201. Motor Vehicles.

(a) (No change.)

(b) It is unlawful for any person to:

(1) hunt any wildlife resource from a motor vehicle or[,] motor-driven land conveyance[, or possess a loaded firearm, arrow gun, or air gun in or on the vehicle,] except

as provided for a disabled person; or

(2) possess a loaded firearm, arrow gun, or air gun in or on a motor vehicle or motor-driven land conveyance, except that a person may possess a handgun in accordance with applicable law, including, but not limited to, the provisions of Penal Code, Chapter 46, and Government Code, Chapter 411, Subchapter H.

§65.203. Hunter Safety.

(a) – (b) (No change.)

(1) possess a loaded firearm, arrow gun, or air gun in or on a motor vehicle, except as provided in §65.201(c) of this title (relating to Motor Vehicles) for a disabled person; or[.]

(2)[(d) It is an offense to] possess a loaded firearm, arrow gun, or air gun within a designated campsite, vehicle parking area, boat launching facility, or departmental check station.

(d) The provisions of subsection (c) of this section do not apply to a person in possession of a handgun in compliance with applicable law, including, but not limited to, Penal Code, Chapter 46, and Government Code, Chapter 411, Subchapter H.

(e) – (f) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

Issued in Austin, Texas, on

Commission Agenda Item No. 1
Exhibit C

COASTAL MANAGEMENT AREAS

PROPOSAL PREAMBLE

1. Introduction

The Texas Parks and Wildlife Department proposes amendments to 31 TAC §57.1011 and §57.1012, concerning Coastal Management Areas. The proposed amendments would comport department rules governing the possession and display of handguns on coastal management areas (CMAs) operated by the department with the provisions of legislation enacted in the most recent general session of the Texas Legislature. Under the provisions of House Bill 1927 (Regular Session, 2021), a person 21 years of age or older who is not otherwise prohibited by state or federal law from possessing a firearm may carry a handgun in a holster without a permit in any location where such possession is not expressly prohibited. Under the provisions of H.B. 1927, the Texas Parks and Wildlife Commission does not have the authority to establish regulations to modify or prohibit the effect of the legislation.

The proposed amendment to §57.1011, concerning Definitions, would add a reference to the Penal Code definition of firearms for clarity.

The proposed amendment to §57.1012, concerning Rules of Conduct, would create an exception to the current rule regarding display of handguns to allow persons to possess a handgun in compliance with applicable law, including, but not limited to, applicable regulations adopted pursuant to Government Code, Chapter 411, Subchapter H and Penal Code, Chapter 46.

2. Fiscal Note.

3. Public Benefit/Cost Note.

Mr. Macdonald also has determined that for each of the first five years that the rules as proposed are in effect:

(A) The public benefit anticipated as a result of enforcing or administering the proposed rules will be compliance with the statutory directives of the legislature.

(B) Under provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. Those guidelines state that an agency need only consider a proposed rule’s "direct adverse economic impacts" to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers "direct economic impact" to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services. The department has determined that because the proposed rules regulate conduct of visitors to coastal management areas, there will be no direct effect on small businesses, micro-businesses, or rural communities. On this basis, the department has a determined that neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.

(D) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rules.

(E) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.

(F) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS). The rules as proposed, if adopted, will:

(1) neither create nor eliminate a government program;

(2) not result in an increase or decrease in the number of full-time equivalent employee needs;

(3) not result in a need for additional General Revenue funding;

(4) not affect the amount of any fee;

(5) not create a new regulation;

(6) not expand an existing regulation;

(7) neither increase nor decrease the number of individuals subject to regulation; and

(8) not positively or adversely affect the state’s economy.

4. Request for Public Comment.

5. Statutory Authority.

The amendments are proposed under Parks and Wildlife Code, §81.006, which allows the department to authorize access to wildlife management areas (which includes coastal management areas) and §81.405, which provides the commission with authority to adopt rules governing recreational activities in wildlife management areas, including coastal management areas.

The proposed amendments affect Parks and Wildlife Code, Chapter 81.

6. Rule Text.

§57.1011. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) (No change.)

(2) Arms and firearms — Any device from which shot, a projectile, arrow, or bolt is fired by the force of an explosion, compressed air, gas, or mechanical device, including, but not limited to, any device described by Penal Code, §46.01(3), rifle, shotgun, handgun, air rifle, pellet gun, longbow, cross bow, sling shot, blow gun, or dart gun.

(3) – (7) (No change.)

§57.1012. Rules of Conduct.

(a) – (d) (No change.)

(e) Arms and Firearms. It is an offense for any person to display or discharge an arm or firearm, except while:

(1) [while] hunting migratory game birds under the provisions of this subchapter[; or]

(2) [while] fishing by means of lawful archery equipment; or

(3) the person is licensed to possess and carry a handgun under Government Code, Chapter 411, Subchapter H, and is in possession of and carrying the handgun in compliance with applicable law, including, but not limited to, applicable regulations adopted pursuant to Government Code, Chapter 411, Subchapter H; or

(4) the person carries a handgun in a holster in compliance with Penal Code, Chapter 46.

(f) – (o) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.

Issued in Austin, Texas, on