Attorney General Opinion JM-1271

- THE ATTORNEY GENERAL OF'TEXAS December 21, 1990 Honorable William C. Wilson Opinion No. JM-1271 Major General, TXARRG Adjutant General's Department Re: Authority of an employee P. 0. BOX 5210 of the Adjutant General's De- Austin, Texas 78763-5218 partment to carry a handgun while in the course and scope of his employment (RQ-2166) Dear General Wilson: You have requested our opinion regarding whether a particular employee of the Adjutant General's Department may lawfully carry a handgun while performing his duties on premises under control of the department and while traveling to and from those premises. Section 46.02 of the Penal Code provides: "[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: (a) The provisions of section 46.02 do not apply to a person: (1) in the actual discharge of his official duties as 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 unless he is an employee or agent of the owner of the premises and his primary responsibility is to act in the capacity of a security guard to protect persons or property, in which event he must comply with Subdivision (5) of this subsection: (3) traveling: (4) engaging in lawful hunting, fishing, or other sporting activity if the weapon is a type commonly used in the activity: p. 6801 Honorable William C. Wilson - Page 2 (JM-1271) (5) who holds a security officer commission issued by the Texas Board of Private Investi- gators and Private Security Agencies, if: (A) he is engaged in the performance of his duties as a security officer or traveling to and from his place of assignment; (B) he is wearing a distinctive uniform: and (C) the weapon is in plain view; or (6) who is a peace officer, other than a person commissioned by the Texas State Board of Pharmacy. In 1989, the legislature added the following provision to the adjutant general's duties under section 431.029 of the Government Code: The adjutant general shall: . . . . (12) employ and arm persons as public security officers licensed under Chapter 415, Government Code, for the purposes of protecting property that is under the adjutant general's authority and satisfying applicable security requirements established by the secretaries of the army and air force. Acts 1989, 71st Leg., ch. 336, 5 1, at 1303. you indicate that the individual in question holds a license, under chapter 415 of the Government Code, from the Commission on Law Enforcement Officer Standards and Educa- tion. Such a license does not, however, make a person a peace officer and therefore does not authorize him to carry a handgun. YOU ask then by what authority the public security officer may carry a handgun. In our opinion, subsection (12) of section 431.029 of the Government Code, by authorizing the adjutant general to "employ and m persons as public security officers," acts as an additional exception to section 46.02 of the Penal Code. It is well established that any potential conflict between two statutory provisions should be harmonized if - . p. 6802 ~ I. . Honorable William C. Wilson - Page 3 (JM-1271) possible and effect given to each. S.W.Zd 169 (Tex. 7, 542 Crim. App. 1976); -Universal Ins Co., 373 S.W.Zd 66 (Tex. Civ. APP. - 1963; writ ref'd n.r.e.). Thus, it appears that the public security officer may carry a handgun while performing his duties on premises under your control. Although subsection (a)(3) of section 46.03 of the Penal Code specifically excepts from section 46.02 any person who is Vraveling," this provision has been repeatedly held not to except persons who leave on a journey and return home the same day. Lgy%sFF 250 S.W.Zd 795 (Tex. Grim. App.), cert. 901 (Tex. &rim. App: 1921) (1953); &oraP v. Stofs, 234 S.W. 87 ; Creswell v. State, 39 S.W. 372 (Tex. rev*d on other crounds 39 S.W. 935 (Tex. ' As a result, the trakling exception does Crim. not is individual. trim. App.) App. 1897). apply to th As to your second question, since the authority to "arm" the public security officer derives from subsection .(12) of section 431.029 of the Government Code, he is not required to comply with any of the provisions applicable to licensed security officers under subsection (a)(5) of section 46.03. SUMMARY A public security officer employed by the Adjutant General's Department may lawfully carry a handgun while performing his official duties on premises under the control of the adjutant general, but not while traveling to and from those premises, without the necessity of obtaining a commission from the Board of Private Investigators and Private Security Agencies. . JIM MATTOX Attorney General of Texas WARYEELLJ3R First Assistant Attorney General mu MCCREARY Executive Assistant Attorney General p. 6803 Honorable William C. Wilson - Page 4 (JM-1271) JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General RENEA HICKS Special Assistant Attorney General RICK GILPIN Chairman, Opinion Committee Prepared by Rick Gilpin Assistant Attorney General P. 6804