Untitled Texas Attorney General Opinion ( 1980 )

The Attorney General of Texas
February 11, 1980
MARK WHITE
Attorney General
Honorable Henry Wade Opinion No. MW-141
Criminal District Attorney
Dallas County Government Center Re: Whether a person employed
Dallas, Texas 75202 by a hospital district to provide
security services may carry a
handgun.
Dear Mr. Wade:
You have asked whether a deputy sheriff employed for security
services by the Dallas County Hospital District outside of his normal
working hours may carry handguns. Section 46.02 of the Penal Code makes
it an offenas for a person to intentionally, knowingly, or recklessly cany a
handgun on or about his person Section 46.03 of the Code, however, makes
certain exceptions to that prohibition.
The provisions of Section 46.02 of this cods do not
apply to a person:
(1) in the actual discharge of his official duties
as a peace officer, 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 unlem he is an employee or agent of the
owner of the premises and his primary responsibility
is to act in the capacity of a private security guard to
protect persons or property, in which event he must
comply with Subdivision (5) of this section;
(3) traveling;
(4) engaging in lawful hunting, fishing, or other
sporting activity if the weapon is a type commonly
used in the activity; or
(5) who holds a security officer commission
issued by the Texas Board of Private Investigators
and Private Security Agencies, ifi
(A) he is engaged in the performance of
his duties as a security officer or is traveling to
an: f toRy “,” place of .assignment; ‘.
1s wearmg a dlstmcttve uniform;
(C) the weapon is in plain view.
p. 454
Honorable Henry Wade - Page TWO (Mw-141)
A deputy sheriff employed by the hospital district for security services must by the nature
of such assignment have the premises under his control and he is therefore permitted to
carry a handgun under subsection (2) above. Evers v. State, 576 S.W.2d 46 (Tex. Crim.
App. 1978); Attorney General Opinions H-549 (1975) (security personnel of port authority
may carry handguns while on duty and on the premises); H-l85 (1973) (construing “premises
under his control”); cf. Flares v. State, 486 S.W.2d 577 (Tex. Crim. App. 1972) (employee
of lounge may carry handgun); See Ro y. v. ,,)State, 552 S.W.2d 827 (Tex. Crim. App. 1977)
(motor vehicle does not constitute “premises . In order to qualify under subsection (2) he
is required to comply with subsection (5) which, inter alia, requires individuals to hold a
security officer commission. V.T.C.S. article 4413(29bb), section 3(a)(3), however,
exempts individual peace officers from being licensed under that act. It exempts:
a person who has full-time employment as a peace officer as
defined by Article 2.12, Code of Criminal Procedure, 1965, who
receives compensation for private employment on an individual or
an independent contractor basis as a patrolman, guard, or
watchman if such person ir:
(a) employed in an employee-employer relationship; or
(b) employed on an individual contractual basis;
k) not in the employ of another peace officer; and
(d) not a reserve peace officer.
SUMMARY
A deputy sheriff may carry a handgun while on duty pursuant to
employment by a county hospital district for security services.
,’Very truly yours,
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney Genera)
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by David B. Brooks
Assistant Attorney General
APPROVED:
OPINION COMMITTRE
C. Robert Heath, Chairman
p. 455
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Honorable Henry Wade - Page Three (m-141)
David B. Brooks
Tom Bullington
Bob Gammege
Susan Garrison
Rick Gilpin
p. 456