Untitled Texas Attorney General Opinion ( 1975 )

March 12, 1975
The Honorable Joe Reswebsr Opinion No. H-549
County Attorney
Harris County Courthouse Re: Authority of Port of
Houston, Texas 77002 Houston Security Offkern
to carry firearms
Dear Mr. Resweber:
You have requested our opinion concerning whether recurity officera
employed by the Port of Houston Authority, formerly the Harrie County
Houston Ship Channel Navigation District, may carry handguns while on
or off duty and whether detention0 and arrests made by such security
officers are valid and proper.
Section 46.02 of the Penal Code makes it unlawful to carry a handgun.
However, section 46,03 render8 thio prohibition inapplicable to a person:
(I)...in the actuai discharge of his official duties
a8 a p&ace offtcer, a member of the armed forces
or national guard, o,r a guard employed by a penal
inetitutton;
(2) on his own premises or premises under hia
control;
(3). traveling,; or
(4) engaging in lawful hunting or fishing or other
lawful 8portbg activity.
The first three categories are essentially a restatement of prior law,
See
- Practice Commentary to section 46. OS, Vernon’s Annotated Penal Code.
You have asked whether the security officers are exempted by sub-
sections (1) or (2),and if so to what extent.
p. 2466
The Honorable Joe Reswebcr, page 2 (H-549)
The definition section of the Penal Code defines “peace officer” as
“a person so designated by the Code of Criminal Procedure, 1965.” Penal
Code $1.07(a)(25). However, we do not believe that this definition by
reference is intended to repeal other statutes specifically authorizing or
designating certain persons as peace officers. Article 2.12 of the Code of
Criminal Procedure itself does not state that it is intended to so repeal
such designations. The rule is well established that enactment of a
general law does not ordinarily operate as a repeal of a particular law
by implication. 53 Tex. Jur. 2d Statutes $ 110, and cases cited therein.
See
- Attorney General Opinion H-522 (1975).
In our opinion, where a person is either designated as or authorized to
act as a peace officer by specific statute, he is exempted from the provisions
of section 46.02 by section 46.0311). even though he is not listed in article 2.12.
Section 60.077 of the Water Code, which deals with the powers of navi-
gation districts, provides:
In prosecutions involving the enforcement of the
provisions of this subchapter or the enforcement of
any ordinance, rule, or regulation of the district,. any
sheriff, constable, or other duly conetituted peace
officer of the State of Texas or any peace officer
employed or appointed by the commission may make
arrests, serve criminal warrants, subpoenas, or
writs, and perform any other service or duty which
may be performed by any sheriff, constable, or other
duly constituted peace officer of the State of Texas
in enforcing other laws of this state.
It is our opinion that this section empowers a navigation district to employ
peace officers. Of course, any peace officer appointed by a district must
satisfy the requirements of article 4413(29aa). Section 6b of that article,
specifically requires the completion of a basic course in law enforcement
within one year of appointment. Attorney Gsneral Opinions M-966 (1971),
M-767 (1971).
A peace officer appointed by a navigation district may therefore carry
a handgun while “in the actual discharge of his official duties. ‘I Penal Code
$46.030. In our opinion, going to and from the place of performance of these
p. 2467
The Honorable Joe Resweber. page 3 (I-I-549)
duties is a necessary incident of the “actua246 S. W. 466 (Ky.App. 1923); 94
C. J. S. Weapons, 5 9 at 496. A peace officer may carry hie handgun to
and from work so long as the route followed is practical. See Davis v.
State, 122 S. W. 2d 635 (Tex. Grim. App. 1938). However, sztion 46.03 (1)
does not permit a peace officer to carry a handgun while off duty. Gandara
V. State, 252 S. W. 166 (Tex. Grim. App. 1923); Jones V. State, 238 S. W. 661(Tex. Crim. App. 1922).
Those security officers who have not been appointed peace officers
or who have not met the requirements of article 4413(29aa) may carry a
handgun while on premises under their control. Penal Code § 46.03(2);
Attorney General Opinion H-185 (1973). In H-185 we stated that “a security
guard may carry a handgun while on his employer’s premises. ” Implicit
within this authorization is a requirement that the security officer be on duty,
for otherwise the premises are not under his control. See Robison v. State,
280 S. W. 776 (Tex. Crim. App. 1926). In addition, since&is exception deals
with “premises, ” it does not authorize the transporting of a handgun to and
from work, and such habitual transportation of a handgun ia prohibited under
the case law. Cortemeglia V. State, 505 S. W. 2d 296 (Tex. Crim. App. 1974);
Davis v, State, 122 S. W. 2d 635 (Tex. Crim. App. 1938).
Your final question concerns the validity of detentions and arrests made
by the security officers, Where a security officer has been appointed, a peace
officer he is empowered to make arrests. Code Crim. Proc., ch. 14. In
addition, section 60.077 of the Water Code expresely empowers peace officers
appointed by a navigation district to make arrests. -See Code Crim. Proc.
art. 14.01(a) (in regard to the authority of persons who are not peace officers
to make arrests. )
SUMMARY
The Port of Houston Authority may appoint and
employ peace officers and such officers may carry
a handgun while in the actual discharge of their duties.
p. 2468
The Honorable Joe Resweber, page 4 (H-549)
Security officers who are not peace officers may
carry a handgun while on duty on the premises of the
Authority.
Authority peace officers can make valid arreatr.
Very truly yours,
c/ Attorney General of Texar
APPROVED:
DAVID M. KENDALL, Finst Assistant
?. ROBERT HEATH. Chairman
Opinion Committee
p. 2469