Untitled Texas Attorney General Opinion ( 1984 )

The Attorney’ Ge,neral of Texas
,M MATTOX Dacetther 28, 1984
ttorney General
Ipmmscourt
8UlldklQ Bouorable James S. L:(:rath Opinion No. m-286
r.aBox1254B Criminal District At':orney
Auam, lx 75711.2545 Jefferson County Courthouse Ret Whether handguns may be
2u75-2501 P. 0. Box 2553 bought, sold, and traded at
lkx QlW574-1357
Beaumont. Texas 77’104 the Port Arthur Civic Center,
I elecqpier 512147502s5
a premises licensed for the
sale or service of alcoholic
:4 Jackson, Sulto 700 beverages
wellas. TX. 75202.4505
2w742.SQ44
Dear Mr. McGrath:
&24 Alberta Ave., Suile 180 You inform us th,at handgun dealers rent spaces at tha Port Arthur
El Rso. TX. 7QQtB2793 Civic Center in ordr,r to sell the guns. The Civic Center is licensed
1Y5334454 by the state for the: sale and service of alcoholic beverages. You
wish to know whethey, section 46.02 of the Penal Code is violated when
Teme. suits 700 handguns are bought, sold, and traded at the Port Arthur Civic Center.
ouston. TX. 77w2.3111
131223-5888 Section 46.02 of the Penal Code provides es follows:
(a) A person commits an offense if he
I5 Broadway. Suite 312
xbbock. TX. 7Q401-3479
intentionally. knowingly, or recklessly carries on
SCW747.5235 or about II:Ls person a handgun, illegal knife, or
club.
Xl9 N. Tenth. Suite B
(b) llxrept as provided in Subsection (c). an
nwllerl, 7x. 7asQt.1555
wa8S2.4547 offense under this section is a Class A
misdemeamr.
Lw Makl flu*. mte 400 (c) !m 'offense under this section is a felony
Sm Antonio. TX. 7-2797
of the third degree if it occurs on any premises
t2a25.4191
licensed m: issued a permit by thin state for the
sale or sowice of alcoholic beverages.
An Equal OppOrtunityI
Wirmalive Action Emplow Section 46.03 provides certain exceptions to section 46.02 of the
Penal Code:
(a) The provisions of Section 46.02 of this code
do not app::y to a person:
. . . >
n. 1270
Honorable James S. McGrath - l’oge 2 (JM-286)
(2) on his ova premises or premises under his
coatrol unless he i.r an eeployee or agent of the
owner of the premises and his k-i-7
responsibility is tD act in the capacity of a
private security ,91ard to protect persons or
DroDertY . la which eveat he mbt comol~
. - with
&bhivibion (5) of this subsection:
(3) traveling;
. . . .
Whether OF inJividuai tlas violated section 46.02 or may avails
himself of section 46.03 is a fact questioa to be :esolved through the
criminal process. See, e.g.-, Tex. Coast. art. 1. S110,15,19; Code
Grim. Proc. art. 1.03. Thus, ve rannot aaswer your question as a
matter of lav. We can, however, point out judicial constructions of
sectioa 46.02 which should be helpful to you la your role as
prosecutor of alleged violations thereof.
Section 46.02(c) of the Penal Code has been strictly enforced.
The court in Hilligan v. Starl, 465 S.W.2d 137 (Tex. Grim. Apr. 1971).
held that the defendant comitted a felony offease by carrying a
pistol in a coffee shop licmsed to sell beer, even though it could
not legally sell beer at the time defendant was there. A~I individual
prosecuted under section 4,6.02(c) is not, however, deprived of
defenses available under t!le Penal iode. The Court of Criminal
Appeals has decided that the ~defwse of necessity, which section 9.22
of the Penal Code defines, 16 not unmailable as a matter of lav la a
prosecution under section 46,02(c). Johnson v.- State, 650 S.W.2d 414
(Tex. Grim. App. 1983) (en baac). Thus, statutory aad judicially
created defenses to carryinS a gun are not iaapplfcable to such
conduct on premises licensed under the Alcoholic LIeverages Code. -See
Flores v. State, 486 S.W.2d !i77 (Tex. Grim. App. 1972).
Texas law has long inc:luded prohibitions against carrying a gun
and has provided the exceptiona now found in sections 46.03(a)(2) and
(3) of the Penal Code. The Act of April 12. 1871. made it a
misdemeanor offense for aayow to carry “oa or about his person . . .
any pistol . . . .w Acts 1671. 12th Leg.. ch. 34. 51, at 25; C 8.
Ganunel, Laws of Texas 927 (1:3!M). It included the following proviso:
[Plrovided, that this section shall aot be so
construed as to pwhibit auy person from keeping
or bearing arms on his or her own premises. or at
his or her own p:Lace of business. . . . nor to
prohibit persons traveling in tLc State from
keeping or carrying arms with their baggage. . . .
Woaorablc James S. HcGrath - page 3 (JM-286)
Id. Judicial decisions inte,rpretiag the Act of April 12. 1871.
created an exception allowing the purchaser to take a handgun home
from the places of purchase. !iee Waddell v. State, 37 Tex. 354 (1872);
_--
Christian v. State, 37 Tex. 475 (1872). The legislature has modified
the statutes on illegal carrying of guns. but the judicially created
exception has continually bmcen recognized. See, e.g.. Henson v.
State, 252 S.W.2d 711 (Tex. ~:rim. App. 1952); Ho1 Ll&na- v. State, 158
KS14 (Tex. Grim. App. 1913); Waterhouse v. State, 138 S.W. 386
(Tex. Grim. App. 1911); Pressler v. State, 19 Tex. App. 52 (1885).
See 20 Tex. Jur. 3d, Crimxr Law 91332. It has been held that the
purchaser must carry the gun i;rwithout unreasonable delay. Benson
0. State, w The judicially created defense for purchasers and
the statutory defense of tr.rreling are relevant to evaluating the
conduct of an individual who purchases a gun at the Port Arthur Civic
Center. Whether an individual is a traveler is generally a question
of fact. George v. State, 234 S.W. 87 (Tex. Grim. App. 1921).
We next consider provis~lons relevant to the conduct of the
handgun dealers who sell guns in the Civic Center. Section
46.03(a)(2) renders section 46.02 of the Penal Code inapplicable to a
person on premises under hial control. Cf. Flores v. State,
(predecessor of section 46,02 inapplicme to liquor v
licensee s
employee carrying arms at his place of employment). A prior opinion
of this office has determined that premises leased by an individual
may qualify as premises within section 46.02(a)(2) as long as he has a
right to control these premises. Attorney General Opinion H-22
(1973). See also Ever* v. 2;. 576 S.W.Zd 46 (Tex. Grim. App.
1978); Attorney General Opinion H-185 (1973). Whether the handgun
dealers have sufficient control over the spaces they rent at the Port
Arthur Civic Center is a fact question.
Whether particu L;lr conduct violates sectioa
46.02 of the Penal Code is a fact questioa. A
judicially created defense to prosecution under
section 46.02 permit,8 the purchaser of a handgun
to take it home. !?remises leased by a handgun
dealer may qualify as premises within section
46.03(a) (2) if the dealer has sufficient control
of them.
JIM MATTOX
Attorney General of Texas
p. 1272
Honorable James S. McGrath - Pzy;e 4 (JM-286)
TOMGRPXN
First Assistant Attoruey Generd.
DAVID R. RICHARDS
Executive Assistant Attorney Gmeral
RICR GILPIN
Chalnnan, Opinion Committee
Prepsred by Susan Garrison
Assistant Attorney General
APPROVED:
OPINION COHMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Bruce Youngblood
p. 1273