Supreme Court of Texas Denies State’s Emergency Mandamus Petition Over State Fair Handgun Policy

The decision

On September 26, 2024, the Supreme Court of Texas denied the State of Texas’s petition for writ of mandamus in In re The State of Texas. It also denied the State’s “emergency motion for temporary relief.” The State had sought emergency relief against the State Fair of Texas’s policy prohibiting guns at the 2024 Fair. The order appears in the court’s list of orders pronounced that day. It states no reasons, and it does not address whether the Fair’s policy is lawful or dispose of the State’s underlying suit.

The court did not issue an opinion. Justice James D. Blacklock, joined by Chief Justice Hecht and Justice Young, filed an opinion concurring in the denial. The concurrence stated that the State’s presentation to the 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.”

Background

According to the concurrence, “[t]he State Fair of Texas is a private entity that operates the Fair on public land leased from the City of Dallas.” The concurrence refers to the Fair’s “recently enacted policy” on guns but does not describe its terms.

The State’s suit named the City of Dallas, the City’s interim city manager, and the State Fair of Texas, according to the docket of the Fifteenth Court of Appeals. The case began in a Dallas County district court. The docket lists Judge Emily G. Tobolowsky as the trial judge and shows a judgment signed on September 19, 2024. According to The Dallas Morning News, that ruling denied the State’s request for a temporary injunction.

On September 20, the State filed a notice of appeal and a motion for emergency relief in the Fifteenth Court of Appeals (No. 15-24-00103-CV). The City and the Fair filed responses. On September 24, the docket shows, the court of appeals entered an order denying the motion. The Dallas Morning News reported that the order denied the State’s request for temporary relief and its alternative request for an administrative stay.

The State filed its petition for writ of mandamus and its emergency motion in the Supreme Court of Texas on September 25, according to that court’s docket. The City and the Fair filed responses the next day, and the court ruled the same day.

The concurrence describes the State’s position this way. The State argued that the City of Dallas “may not promote or enforce the State Fair’s prohibition on guns,” relying on section 411.209(a) of the Government Code. The State also contended that the policy would be unenforceable if the City’s police department could not enforce it. In the court of appeals, the State had alleged that the City controls or influences the Fair, including by appointing community members to the South Dallas/Fair Park Opportunity Fund Board. The State’s filings also suggested that the policy might raise Second Amendment problems.

The court’s reasoning

The court gave no reasons for its order. The order list records the petition for writ of mandamus as denied and the “relator’s emergency motion for temporary relief denied,” and notes the concurrence. The analysis summarized below comes from the concurrence and represents the views of Justice Blacklock and the two justices who joined him, not of the court.

Separate opinions

Justice Blacklock wrote the concurrence, which Chief Justice Hecht and Justice Young joined. It has no section headings. The subsections below follow the order of its discussion.

The question the State did not argue

The concurrence described whether Texas law entitles handgun owners to carry at the Fair despite its policy as “a very important question.” It said further litigation “may provide a clearer answer,” but that the question was not “answered—or even addressed—by the State’s emergency filings in this Court.” It stated: “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.”

Turning to the State’s argument under section 411.209(a), the concurrence assumed the State was correct that the statute bars the City from assisting in enforcing the Fair’s policy. “Even if that is true—and it may well be,” it wrote, this would not mean that handgun owners are entitled by law to carry at the Fair despite the policy. “On that pivotal question, the State’s filings are conspicuously silent.”

Enforcement by the City

In a footnote, the concurrence rejected the State’s contention that the policy would be unenforceable without the City’s police. It noted that the Fair intends to hire private security and that the Dallas County District Attorney is not a party. It suggested that “the worst possible outcome” might be an order siding with the State but enjoining only the City and its police department under section 411.209. In the concurrence’s view, such an order would leave the policy in place while giving the public the “misimpression that the courts have green-lighted” carrying handguns at the Fair.

The 2016 Attorney General opinion

The concurrence discussed Texas Attorney General Opinion KP-0108, issued in 2016. According to the concurrence, that opinion concluded that private parties leasing government-owned facilities cannot make carrying handguns a crime by posting the signs described in sections 30.06 and 30.07 of the Penal Code. The concurrence said the opinion also concluded that a private party in that position likely could exclude handgun carriers by using a tenant’s traditional authority to control entry and treat non-compliant visitors as trespassers.

The concurrence noted that KP-0108 had recently been withdrawn pending consideration of a related request, RQ-0558-KP. It wrote that “withdrawing the Opinion is not the same thing as repudiating its analysis or explaining why it was wrong,” which the State had not attempted to do. If the Attorney General opinion was correct, the Fair “may well have the authority to exclude handguns from the Fair,” even if the State is right about section 411.209. If it was wrong, the concurrence said, the party seeking a contrary result “must at least explain why its opinion was wrong.”

The State’s other arguments

The concurrence said the State’s suggestion of Second Amendment problems was “slight and indirect” and unexplained. It also addressed the allegations that the City controls the Fair, even accepting them as true. In its view they showed only “scattered and indeterminate financial connections between the entities,” not control that would make the Fair’s decisions about guns attributable to the City. It added that the State had not explained how the Opportunity Fund Board is connected to the Fair or its policy.

The present stage of the case

The concurrence stated that future litigation could reveal that the City impermissibly controlled or influenced the policy, and that “[t]he 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 wrote that “a judge’s role in this case is not to decide whether the State Fair made a wise decision.” The question, it said, is whether Texas law allowed the Fair to make that decision for itself. Because the State declined to take a position on that question while seeking an injunction, the concurrence concluded: “It should also go without saying that our answer, for now, must be no.”

Status

The order denied the State’s petition for writ of mandamus and its emergency motion for temporary relief. It did not dispose of the State’s suit against the City of Dallas, its interim city manager and the State Fair of Texas.

The Fair opened with its policy in place, according to KERA News. In a statement reported by CBS News Texas, Attorney General Ken Paxton said he would continue to fight the Fair’s gun policy.