Untitled Texas Attorney General Opinion

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December 19, 1973
The Honorable Thomas W. Brown, Director Opinion No. H-185
Texas Board of Private Investigators and
Private Security Agencies Re: Meaning of “premises
959 Reinli Street, Suite 201 under his control” as
Austin, Texas 78751 used in § 46.03(Z) of 1973
amendments to Texas
Dear Mr. Brown: Penal Code
AS presently enacted, Article 483 of Vernon’s Texas Penal Code makes
it unlawful for any person to carry on or about his person certain specified
weapons including pistols. Article 484 excepts from its provisions, among
others, a”special policeman who receives a compensation of forty dollars or
more per month for his services as such officer, and who is appointed in
conformity with the statutes authorizing such appointment. . . . I’.
The new Penal Code (Acts 1973, 63rd Leg., ch. 399, p. 883) to be
effective January 1, 1974, contains, in its $46.02 the general prohibition
against “intentionally, knowingly, or recklessly” carrying a handgun upon
one’s person.
Section 46.03, the equimlent of Article 484, will be:
“The provisions of Section 46.02 of this code 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;
“(3) traveling; or
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The Honorable Thomas W. Brown, page 2 (U-185)
“(4) engaging in lawful hunting or fishing or
other lawful sporting activity.”
Your letter to us states:
“Private Guards that are employees of a licensee
licensed pursuant to the provisions of Article 4413 (29bb)
are now permitted to carry firearms upon the issuance
of a special police commission issued pursuant to the
provisions of Article 4413(29bb) Section 14(c) and Article
484 of the Texas Penal Code.
“Upon the effective date of the new Penal Code
Senate Bill 34, employees of licensees can no longer
be issued special police commissions as outlined in the
preceding paragraph. “
We agree with your conclusion that, after the new Penal Code goes into
effect on January 1, 1974, because of the omission from § 46.03 of reference
to special police officers, employees of your licensees will not be able to carry
handguns pursuant to any commission as special police officers.
The question you have asked is:
“What constitutes ‘premises under his control’ as
used in Section 46.03(2) of Senate Bill 34? The purpose
of this request is to enable the Texas Board of Private
Investigators and Private Security Agencies to carry out
its responsibility to revoke the license of any licensee
who unlawfully carries a prohibited weapon. ”
Section 46.03 also exempts from the prohibitions of $46.02 of the new
Penal Code a person “on his own premises or premises under his control. ”
The comparable language in Article 484 is that the prohibition of Article 483
“shall not apply . . . to the carrying of arms on one’s own premises or place
of business. . . .‘I There have been a number of decisions construing that
language and it is held that it is not necessary that thepremises be owned to
qualify as a place of business. Smith v. Smith, 100 S. W. 155 (Tex. Crim.1907);
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The Honorable Thomas W. Brown, page 3 (H-185)
Gibbs v. State, 156 S. W. 687 (Tex. Crim. 1913). On the other hand, a
mere permissive right to use property for a particular purpose may be
insufficient to constitute one’s own premises or place of business within
the meaning of Article 484. Soloskv V. State, 236 S. W. 742 (Tex. Grim.
1922); Whiteside v. State> 58 S. W. 1016 (Tex. Crim. 1900).
As we pointed out in Attorney General Opinion H-22, to confer the
right to carry prohibited weapons, there must be lawful possession and
control, even under the old law. See Mireles v. State, 192 S. W. 241(Tex.
Grim. 1917); Fields v. State, 166 S. W. 1166 (Tex. Crim. 1914). Similarly,
under that statute it was held that the exception applied to employees of the
owner of the business. Thus in Poston v. State, 104 S. W. 2d 516 (Tex. Grim.
1937) the court said that if the appellant was employed to work in two places
of business he would not have been violating the law to have had a gun on his
person at either of them.
In Merchants and Manufacturers’ Lloyds’ Ins. Exch. et al,., v. Southern
Trading 205 S. W. 352 (Tex. Civ.App., Ft. Worth, 1918), the
Court stated the following:
“The term ‘premises’ has attached to it various meanings,
owing to the connection in which it is used, but, generally
speaking, the term includes not only buildings, but the lot
or land upon which the same are situated. ”
Therefore, in our opinion,the~ term “premisea” means a fixed piece of
real estate and the building located thereon.
In Board of Insurance Commissioners v. Duncan, 174 S. W. 2d 326(Tex. Civ. App., Amarillo, 1943). the Court stated:
“39 Tex. Jur. 196, par. 104. says: ‘It is proper
and sometimes necessary to consult a dictionary to
ascertain the meaning to be attached to a word. ’
“The same text and volume, page 197, par. 105,
says : ‘One of the primary and settled rules of construction
is that words in common use, when contained in a statute,
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The Honorable Thomas W. Brown, page 4 (H-185)
will be read according to their natural, ordinary
and proper meaning unless a contrary intention is
clearly apparent from the context or unless there is
some necessity, in a particular case, for adopting
a different construction. ’ These statements from the
text are supported by numerous authorities.
“Webster’s New International Dictionary defines
the word ‘control’ as follows: ‘To exercise restraint
or deciding influence over; to dominate: regulate; to
hold from action: to curb; subject or overpower. ’
“Words and Phrases, Perm. Ed., vol. 9, page
434, says: ‘To “control” means to exercis:e restraint
or deciding influence over; to dominate; regulate: to
hold from action; to curb; subject or overpower. ’
“So far as we are able to find the word ‘control’
has no legal or technical meaning distinct from that given
in his usual usage. ”
Also see Carter v. Carter, 359 S. W. 2d 184 (Tex. Civ.App., Waco,
1962);State v. Camper. 261 S.W. 2d 465 (Tex. Civ.App., Dallas. 1953).
In Evary v. The E. F. Construction Co., 236 A. 2d 328 (Corm. 1967),
the Court was presented with the question of what was the meaning of “premises
under his control. ” In this action by an injured employee for damages based on
alleged negligence the Court noted that an averment that the Defendant had
“control” of premises called for a legal conclusion and the bare assertion does
not justify conclusion that no fact issue exists.
The phrase “premises under his control” implies some definite place,
and there is no control where the premises are a highway. Bates v. Connecticut
Power Co. 33 A. 2d 342 (Conn. 1943). Evary v. The E. F. Construction Co.,
supra.
It is our opinion from the foregoing authorities that a security guard may
carry a handgun while on his employer’s premises. In the case of an employee
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The Honorable Thomas W. Brown, page 5 (H-185)
of a private security agency, whose employer contracts with third persons
to guard their premises, the guard while on the premises of those third
persons may be on “premises under his control” but whether or not he is
will be a fact question in each instance. We do not believe that the statute
will require exclusive control in the sense that there could only be one per-
son in control of premises. We would feel it sufficient if the person in
question was authorized to direct the conduct of other persons on the premises.
We do not believe that “premises” can be extended to include, for
example, armored vehicles or the streets surrounding premises and in this
latter connection we call your attention to Wilson v. State, 418 S. W. 2d 687(Tex. Crim. 1967) where the court said:
“We are unable to agree that a tenant who carries
a pistol upon the grass, sidewalks, driveway, and
parking lot jointly used by all tenants of a large apart-
ment complex, such as the one described herein, is on
‘one’s own premises, ’ withih the meaning of the statute. ”
From the foregoing we conclude that, to meet the test of “premises
underhis control,” the location where the person intends to carry a handgun
must: (a) be real property or a building upon it and (b) be owned by the
subject or his employer or (c) subject to the cmtrol of the subject or his
employer in some special capacity. While control need not be exclusive of
others, it must be a real right to exercise some dominion over the premises.
Whether or not these facts exist will usually be a question of fact to be deter-
mined in each case.
Under one test we believe that employees of a security service employed
to guard premises of another, so long as they have the right to “control” the
premises, will be authorized to carry handguns. On the other hand, an em-
ployee of such a service, operating from an armored vehicle, which cannot
qualify as “premises” cannot qualify.
SUMMARY
In order to be entitled to carry a handgun under
$46.03(2) of the 1973 Penal Code on “premises under
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The Honorable Thomas W. Brown, page 6 (H-185)
his control, ” the person in question must actually
have the right to exercise some control over the
conduct of other persons upon the premises although
his control need not be exclusive. Whether or not
such a right to control exists is a question of fact.
Very truly yours,
JOHN L. HILL
” Attorney General of Texas
APPROVED:
DAVID M. KENDALL, Chairman
Opinion Committee
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