Untitled Texas Attorney General Opinion ( 1942 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Honorable Alex Jung
County Attorney
~111eepie County
Fredericksburg, Texas
Dear Sir:
Tour lettor request inton or thbddepart-
msnt on the questions etat ubetantially a8
followa:
y, together
ame to Fndetila&k-
burg a aortain pieked up in '~
her (far a ILr nd then pfak-
VW) at thr
shamed a gal-
~crtabliehment
telds of the crity
Before get-
ha tavern, it was
e party,thqt Mr. A
1, which he had bean
he horn of !&. and lhrs. B.
e home of Xr. and Mrs. B.
after its olosla& the three
088 ths highway to another a**
e all of the wine rata oonmmd
ouplaa iu addition to mte beer.
med with a youn& laby outs1 e of
the threeOcouple party. Apparently there' &a,
some trouble between Ur. A and tie wlie. The
tfuree aouplea returned to the homu of Mr. and
We. B, and there Mr. A ordered the plrtol turn-
ed over to him, wblch was finally done by YIrae B,
nharsu;lon Zdr. k reimmrted some seven cartridges
lneo the &at01 and it went art and struck Mr. B.
Honorable Alex Jung, Page 2
You further state in effect that we may as-me
for the purposes hereor that the evidsnoe (eon Ii not so
oonclusively above indloatsd) will nevel~fheless show tbst
l&r. A had the pistol in the oar when he and his wife cape
to the home of Xr. and Mrs. B, and that it had been carried
there rrom a certain city outside of Gillespie county. Mr.
A us8 in possession of a c.ard simed by the sheriff of
County, Texas, showing that Mr. A was a apsolal~
aeputy sherifr of county.
Your questions are substantially as follows:
(a) Assuming that Mr. A is ae;ymi; a
special deputy sheriff of
Texas, reoelvtng no crenpessation aa suuh,’
either official or private, wan he authorized
to so carry a pistol within the oonflnee of
Gilleeple county?
(b) In drawing a ounplaint an6 lniorma-
tiorr, is ft moemary to negative the mettars
in Artiole 484, Varnonts Annotated Penal Code,
and to prove such negative allegatioae in ord8r
to make out a 0aaeP
(0) Assuming Mr. A reoeived no oompenea-
tion as such Orfleer but war duly appointed,
and -aonfi#med as a apeaial deputy sheriff of
County, and assuming that he reoel*-
ed no private ooupen++ioa for any services as
suoh, wan he permitted to carry a pinto1 in
Gillespie County?
(d) Under Artiole 484, eupra, would he be
olassed as a spsoial polloenran v&o reooivcu, no
compensation for hie serrioem am such officer?
(e) ~esumlng Nr. A had no ofricial bumi-
ness whatsoever to perform on his trip from
aity to Fredericksburg, nor while there.
and it was solely one for pleaaurs, was he ex-
cused from the penalflee of Artiole 483, Ver-
non’s Annotated Penal Code, under the provisi~li
or Article 484, supa, rela tiva to ~persons tra-
veling?
Article 483, Vernon’s Annotated Penal Code, provides:
Honorable Alex Jung, Page 3
"IYhosver shall oerry on or nbout his psr-
son, eeddle, or in his saddle bags any pistol,
dirk, dagger, slung-shot, sword O&M, spear or
knuckles made of any setal or any hard sub-
stance, bowie knli'e, or any other knife smnu-
factored or sold for the purposes Of oitenso
or defense, shall be punished by fine not less
than $100.00 uor more than &SOO.OOor by oon-
?insmsnt in Jail for not less than one month
nor mm than om year.v
Article 484, Vernon*8 Aanotated Penal Oods, reads
as r0ilOtm:
mThe preceding article shall not apply to
a person in aotusl service as a mllitiams.n,
nor to any peaes offleer in the aotual dls-
ahsrge of his of?ieial duty, aor to the oarsy-
ing o? aam8 on one'8 ows premises or place oi
buslsemv, oar to psr6ons travsling, nor to shy
deputy eonstabls, or special pollossa@who rs-
osivss a oompensatior. of rorty dollars.~.or more
per month ror his senicss as swh orifoer, and
who ls appointed in Oon?OI?aity with the stst-
utes authorielBg suoh appointmast; nor to the
Qwae, Fish and Oyster Commisslonar, nmr to any
deputy, when in the aotual dlsohargs o? his
duties as suoh, nor to any gsae wmdeh, or
loeal deputy Wse Flsb and Oyster Covm~lssion-
er when in the a&al disolmrge o? his dutiss
in the oousty o? his rssidenosl nor shall it
apply to any game arden or deputy Game, Bi8h
and Oyster Comalsaioner rho aotually~reosivss
iroa the State tees or ooPlpsnsation ?or hi8
serviass.w
With reference to your first qUeStiOS, Wa Qall yOUr
attention o? Gandarav. State, 85.3 9. WI 166, wbioh hold8
t&t ah auto driver ?or hire, who was oomsissioned as a
deputy shori??, was not authorleed to oarry a pistol when he
WaS sot engaged in the disohtirge o? an official duty at the
time he was found in possession o? the pistol. In this ease,
the deputy qualiried by taking the oath o? offios, asd the
commission was issued to him by ths eouaty olerk of El Paso
County, and the oomdesion ms eff~otivo at thetime appd-
lant was arrested.
During the time he bad held suQk oommission ap-
pennant had maa no arrwt, bfib 8ened w alril prooe88, and
wad drawing no toapenaatlon a8 deputy sharirt, and uao not
engaged in tke dleohargo of any orfialnl duty at the tin0
he wn8 fouad in poerr88iOn of the pi8tOl. ti Vim Of the
holding in this .Oa8., we re8pWitfullJ amMet your fir8t quaa-
tion in the negatlrr. Provided, OS oouree, the deputy shar-
lrf wa8 not engaged in trio dleaharge or any orflalal duty
at ths tlao he ua8 ima in pes8easion or the pirrtol.
We awnor your 8eaoBd quastton In the naeetiv#.
An lmliotmsn~ in 8uoh a Ba8a is 8UrriOieEt when the word8
of the 8tatute ars used. (Plokatt v. State, 10 Cr. 8. 99Or
maker f. Stats, 143 8. W. 611)
Tha aarar or Powall v. State, 99 9. w. 206; Lewell
v. Stato, 54 Ter. Cr. R. 640, &arri8 V. State, 196 8. W. 890,
hold, among other thlw, that an lndiotmoat or lniomatian
alleglag the tisrsand venue and that the defordant dlB aarry
on and about hi8 par8Oa o pi8tO1, i8 good.
'Ia the oaso of Bnkarp. Stote,~,lOU 8. If. (Ed) 508,
the court~of Crhlnal A~pealr,‘%pJlbag through Ju@a Lot%:-
aore, wtdr
Vroa wiat we ham sa%d and a8 far a8
m hnvo been able ~to uoart&, our oourt8 ,have
UdrOmy hOid that rfiOn the b¶&8imArO 84M8
rit to orants whwJpt10na to the general penal
provl8iaa8 OS the 8tatuto a#? ruah exception8 be
- ylaoed in a eoparato 8e1othjti or artiolr from
the OBOcontaining the daf4nitlon of tha Offan8e,
or if they be 8ot 8uoh a8 to be emsantlal to the
daflnitloo of the offwiw, it will n&be me-
.s8sary to ne&ative rush eroaptls~ in tbo in-
dictment oharging aucb ofi~on80.*
3n ownaction tith
the foregoing, '110oall our at-
tontiOB t0 the Oa8e8 of FOrtilOB v. St&e, 198 S. 8,. 1 9d) mz,
and Stove11 v. State, 189 8. SF. (Zd) 104. However, we think
there On808 6r0 diBtlngui8habl. anilare IWt applicable to the
quaetion8 involved in thl8 Oplrrton. Therefor@, we do not despl
it fiO@a88a~ t0 dlSoU86 the80 Ba8b8 f\p)bw.
What Wa8 8aid SOgaMing ?ihO fiP8t qW8tiOU quoted
above 18 equally applloable to four third Wa8aon. Timrefare
we M8wr the 8EW in the BO&atiVO.