Untitled Texas Attorney General Opinion ( 1990 )

-
THE ATTORNEY GENERAL
OF'TEXAS
December 21, 1990
Honorable William C. Wilson Opinion No. JM-1271
Major General, TXARRG
Adjutant General's Department Re: Authority of an employee
P. 0. BOX 5210 of the Adjutant General's De-
Austin, Texas 78763-5218 partment to carry a handgun
while in the course and scope
of his employment (RQ-2166)
Dear General Wilson:
You have requested our opinion regarding whether a
particular employee of the Adjutant General's Department may
lawfully carry a handgun while performing his duties on
premises under control of the department and while traveling
to and from those premises.
Section 46.02 of the Penal Code provides: "[A]. person
commits an offense if he intentionally, knowingly, or
recklessly carries on or about his person a handgun, illegal
knife, or club." Section 46.03 states:
(a) The provisions of section 46.02 do not
apply to a person:
(1) in the actual discharge of his official
duties as a member of the armed forces or
national guard or a guard employed by a penal
institution;
(2) on his own premises or premises under
his control unless he is an employee or agent
of the owner of the premises and his primary
responsibility is to act in the capacity of a
security guard to protect persons or property,
in which event he must comply with Subdivision
(5) of this subsection:
(3) traveling:
(4) engaging in lawful hunting, fishing, or
other sporting activity if the weapon is a
type commonly used in the activity:
p. 6801
Honorable William C. Wilson - Page 2 (JM-1271) - .
(5) who holds a security officer commission
issued by the Texas Board of Private Investi-
gators and Private Security Agencies, if:
(A) he is engaged in the performance of
his duties as a security officer or
traveling to and from his place of
assignment;
(B) he is wearing a distinctive uniform:
and
(C) the weapon is in plain view; or
(6) who is a peace officer, other than a
person commissioned by the Texas State Board
of Pharmacy.
In 1989, the legislature added the following provision
to the adjutant general's duties under section 431.029 of
the Government Code:
The adjutant general shall:
. . . .
(12) employ and arm persons as public
security officers licensed under Chapter 415,
Government Code, for the purposes of
protecting property that is under the adjutant
general's authority and satisfying applicable
security requirements established by the
secretaries of the army and air force.
Acts 1989, 71st Leg., ch. 336, 5 1, at 1303.
you indicate that the individual in question holds a
license, under chapter 415 of the Government Code, from the
Commission on Law Enforcement Officer Standards and Educa-
tion. Such a license does not, however, make a person a
peace officer and therefore does not authorize him to carry
a handgun. YOU ask then by what authority the public
security officer may carry a handgun.
In our opinion, subsection (12) of section 431.029 of
the Government Code, by authorizing the adjutant general to
"employ and m persons as public security officers," acts
as an additional exception to section 46.02 of the Penal
Code. It is well established that any potential conflict
between two statutory provisions should be harmonized if
p. 6802
~ I. .
Honorable William C. Wilson - Page 3 (JM-1271)
possible and effect given to each. 7, 542
S.W.Zd 169 (Tex. Crim. App. 1976); -Universal Ins
Co., 373 S.W.Zd 66 (Tex. Civ. APP. - 1963;
writ ref'd n.r.e.). Thus, it appears that the public
security officer may carry a handgun while performing his
duties on premises under your control. Although subsection
(a)(3) of section 46.03 of the Penal Code specifically
excepts from section 46.02 any person who is Vraveling,"
this provision has been repeatedly held not to except
persons who leave on a journey and return home the same day.
250 S.W.Zd 795 (Tex. Grim. App.), cert.
Lgy%sFF 901 (1953); &oraP v. Stofs, 234 S.W. 87
(Tex. &rim. App: 1921); Creswell v. State, 39 S.W. 372 (Tex.
trim. App.) rev*d on other crounds 39 S.W. 935 (Tex. Crim.
App. 1897).' As a result, the trakling exception does not
apply to this individual.
As to your second question, since the authority to
"arm" the public security officer derives from subsection
.(12)of section 431.029 of the Government Code, he is not
required to comply with any of the provisions applicable to
licensed security officers under subsection (a)(5) of
section 46.03.
SUMMARY
A public security officer employed by the
Adjutant General's Department may lawfully
carry a handgun while performing his official
duties on premises under the control of the
adjutant general, but not while traveling to
and from those premises, without the necessity
of obtaining a commission from the Board of
Private Investigators and Private Security
Agencies. .
JIM MATTOX
Attorney General of Texas
WARYEELLJ3R
First Assistant Attorney General
mu MCCREARY
Executive Assistant Attorney General
p. 6803
Honorable William C. Wilson - Page 4 (JM-1271)
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Rick Gilpin
Assistant Attorney General
P. 6804