The conflict between city code and state law

Photo by Todd Wiseman

On April 7, an estimated crowd of 300 people met in San Antonio to march to Olmos Park City Hall in protest of Olmos Park Police Chief Rene Valenciano and a recently overturned local ordinance that prohibited the carrying of loaded weapons. Very few of those protesting, however, were residents of Olmos Park itself. As reported by KENS5, “citizens from across Texas took to the Olmos Park streets.” Reporting on the vote to overturn the controversial ordinance for the San Antonio Express-News more than a week before, Emilie Eaton noted: “The activists, none of whom were Olmos Park residents, erupted in applause after the vote. They vowed to keep protesting and said they were planning another rally.”

The episode — and the events that preceded it — has raised many important questions about local governance in Texas. To what extent should local governments be entitled to legislative powers over the areas they are elected to represent? Who should local governments be accountable to: those who elected them or those who travel across the state to protest legally unenforceable local ordinances, such as previously existed in Olmos Park?

On March 27, Olmos Park police arrested Temple resident CJ Grisham, a former candidate for the 55th District in the Texas House of Representatives and the founder of Open Carry Texas, a gun rights advocacy group. The manner of his arrest, which was recorded and uploaded to YouTube, stirred controversy. Grisham was charged with interfering in the duties of a public servant, obstructing a public roadway, assaulting a peace officer and resisting arrest. It was alleged, however, that the arresting officers had stopped him because he was carrying a loaded gun.

On Thursday, March 29, two days after Grisham’s arrest, the Olmos Park City Council voted to overturn section 24-85 of the city code, which made it “unlawful for any person, other than a duly authorized peace officer, to carry a loaded rifle or loaded shotgun on any public street within the city.” The following week, Hollywood Park and Alamo Heights followed suit, overturning similar sections of their city codes.

But as David Amad, the vice president of Open Carry Texas, commented, “The truth of the matter is state law has pre-empted all of these different city ordinances for some time.” This was the principle behind the San Antonio Police Department’s approach to the issue, and Police Chief William McManus emphasized that SAPD officers “conform with state law in this case. We don’t enforce the city code. We enforce the state law.”

There remains, however, an obvious sense that some residents of Olmos Park, a municipality of some 2,200 residents which largely lacks sidewalks, are uncomfortable with people walking down their streets openly carrying weapons. McManus reported that several residents contacted police on the day of the march to complain about individuals carrying guns. Local residents also commented on their unease with the protest when interviewed. And when overturning the ordinance that prohibited the carry of loaded firearms, the Olmos Park City Council commented that “It is challenging when people have rifles or other firearms slung over their body or openly carrying and the officers don’t know their intent and who is a law-abiding citizen or who is attempting to commit a crime.”

The recent events in Olmos Park bring the utility of local ordinances into question. Texas is a state that has proven itself resistant to federal overreach in recent years; only earlier this year it launched yet another lawsuit against the Affordable Care Act. When a state legislature perceives federal law to be contrary to the needs of its residents, it has the ability to conduct itself in this manner. But what if a local municipality considers state law to be contrary to the best interests of its residents? What is the purpose of a locally elected body — such as the Olmos Park City Council — if it is forced to change its laws not at the behest of its residents but rather at the insistence of non-residents?

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Andrew Sanders

Assistant professor, Texas A&M University San Antonio