Opinion No. ( 1980 )

Honorable Forrest Green, Chairman Agriculture and Livestock Committee House of Representatives Austin, Texas 78769

Re: Whether government employees may carry handguns while hunting and trapping predatory animals and rodent pests.

Dear Representative Green:

On behalf of the House Committee on Agriculture and Livestock, you have requested our opinion as to whether chapter 46 of the Penal Code prohibits governmental employees from carrying handguns while hunting and trapping predatory animals and rodent pests as a duty of their employment.

Section 46.02 of the Penal Code provides that

(a) 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, however, that section 46.02 is not applicable to a person:

(4) engaging in lawful hunting, fishing, or other sporting activity if the weapon is a type commonly used in the activity. . . .

Section 1 of article 192b, V.T.C.S., requires the State of Texas to

. . . cooperate through the Agricultural and Mechanical College System of Texas with the United States Department of the Interior, Fish and Wildlife Service in the control of coyotes, wolves, mountain lions, bobcats, the Russian boar, and other predatory animals and in the control of prairie dogs, pocket gophers, jack rabbits, ground squirrels, rats and other rodent pests for the protection of livestock, food and feed supplies, crops and ranges.

Since article 192b, V.T.C.S., authorizes the hunting of various predatory animals and rodent pests, it is clear that employees affected thereby may carry handguns if when actually engaged in hunting activities the handguns constitute weapons of a type ``commonly used in the activity' of controlling such animals. Thus, if handguns are commonly used to control the animals described in section 1 of article 192b, V.T.C.S., it is our opinion that governmental employees, while engaged in such activities, may lawfully carry handguns under the exception of section 46.03(4) of the Penal Code.

SUMMARY Governmental employees may carry handguns while hunting predatory animals and rodent pests, provided such weapons are of a type commonly used in the activity of controlling such animals.

Very truly yours,

Mark White Attorney General of Texas

John W. Fainter, Jr. First Assistant Attorney General

Ted L. Hartley Executive Assistant Attorney General

Prepared by Rick Gilpin Assistant Attorney General