-_ 

OFFICE OF THE AT~dR~iiliY ~GENERAL OF. TEXAS 

AUSTlN 

GROVER SELLERS 

ATTORNEY GLNLRAL 

5 

Honorable perry L. fonee 

county Attornry 

~. .warie county 

Austin, TeXtW 

Dear 

cent data requea 

tiolia, rhioh PR) 

y0Ur -letter or r8- 

to savaral quesptlona ~4~ptivi&38, 

olr ‘483 shall not 

oonstable, or SQPS61 a OOlapMsdtiOA Or 

r month ror hia aenloes 

f# appOfAtOd in OOAfOrmtutee au#iho+ing woh appoint- 

*spsalal COAstable* or r4eQutJ 

is pafd jiC.00 per. Aght by tm 

keepfag order in h night olut, 

nothing by the ootmty, ba legally SAtitkid to oarry a' pistol, a8 one oomiD8 

within the quoted eXc9ptioA? 

2. Eay suoh *special constable-, or *deputy 

constable* be lawfully paid by a private ‘individual,’ or must he receive his oom?ensation as 

such oifioer from the oouizty or tbrougfi fees of 

orfice? 
. 

‘. 

Honorable Parry L. JOANN, Paw. 8 

5. II it legal for a de 

oept money for keeping order f 

uty oonetablr to aoA a night olub dthCgt tUrA.bg said money into the GouXty Treasury, 

even though he giver the raid night olub more of 

blr tlms and attention than is required in the 

00UrBa Of hlg dutier a6 deputy constable, ard although he ia paid nothf~g by the oouaty? 

4. 

aountp 14 

Otiy ona dapputy oonstable in Trarir 

reoelring a salary from the oounty ror 

hlr remloe8 aa suoh ofrloer. xmerer four ?r eoial deputy ooAstablesa have been appointed a f+ 

wove& .by the Oomniadonerr* court, in’aooordam* with. Artiole 6879a, T@rnont8 Annotatd Uiril 

Statutea, said deputy ooonatablae reoefring no 

salary, although they do reoeits atore than forty 

dollars per month from private iAdirldual.8 to 

keep order in night olubs. Are these *6Jeolal 

deput 

r 

oonstablesn legally permitted to oarry 

Plato 8, under Article 484, supra? 

5. Assting that operators of a drug StOra, 

groowy store or other burrfaeoe must take large 

suas of aoney to the bank, and a6 a praotioal matter the sheritr~r department nor the polioe drpaz&eAt OaAAot rovids aA armed eaoort, MY tuoh 

oparatorr or the ! r eaployeees legally am themsoltee with pietola for the purpose of prqteotiw 

the money while it is so oonveyed to the bank? 

6. Article 48s of ,the Peaal Code OOAdetDnS 

th6 aarryiing 0r arms in oertaln aeserablise. I8 

a'aight olub where, people assemble to drink beer, 

aAd 8onti3tlmes daAoe, suoh a plaoe ot assembly or 

amusement as 'to oome Wer the provisions of suoh 

AlMole? 

7. KOUld the type oi offioer referred to iA 

queatlon 1, above, ooffie within the provisions Of 

Artiole 485 ii he carried a pistol in a llrght olub 

suah as is desoribed IA questiOA 61 

8. Could even the Owner OS suoh.tight olub, 

a8 desoribed in question 6 ,legally arm himself 

or an agent to keep order iA suoh 'ep assembly? ..~ 

] 
Honorable Parry L. Jonea, Page 3 

- 9. 18 a hotel lobby a plaoa of assembly aa 

oontamplated by Art1010 485, Penal coda? 

10. It the aAnwar to question 9 ia in the 

aiflrrnatlra, oould the hot.1 management legal1 

an a hotel deteotim to keep order In ruoh lo i; by? 

Your iiret quertloa lnrolve8 s8varal.oonaIdarations. 

In the flrat plaoe you IWfOr to a rspeolal OOArtablow. What 

18 a l rpeoial oonrtablam? *a statute raiarra to (Art. 484, 

Penal Bode) 8~aoIiIrr a *aDeolal polloeaan~ ~bu e "daputr OOA- V~ ti?) 

#tablo*. 

Mext, 10 note tb language of the Artlolr under 

ooAsid8rat~oA. Aa OOdiiha and AOw EitOAdiAg UpOA Our Statute books as Article rL84, Penal Coda, the partinant provialons read a8 r0110w8: 

npho preceding artiole shall not a ply to 

. . . any 

OS No Off f olal duty, nor to the oarrying Of arms 

eaoe ofrloar IA the aotual $P soharge 

On one'9 own pramI or plaoa of bualmas. nor 

npho preceding artiole shall not a ply 

. . . any eaoe ofrloer IA the aotual $P 

to 

soharge 

OS No off f olal duty, nor to the oarrying or arms 

On one'9 own pramI or plaoa of bualmss, nor 

to0 pa~;i;tf peT;~'I~f 

or ag 

tri:;;;z, "?;;a;~, AOr nor-to to any deputy oonatable, ooiMable, 

PO who reoeitae reoelvae a oompansatlon 

of forty aollara aollara or more par month Sor hi8 88x-v- 

'ioes at3 euoh ofrloer, ofrloer, aAd who Is appointaa.in appointaa.in oon- 

'Iormlty 'Iormlty with the statute8 statute8 authorlzlng authorlzlng Buoh appolnx- appolnxmant; l . .î ( El!lp na a lc l Our 8. ) 

Prior to the oodlrioatlon of 1935, the above artl018 war known aa Artiole 476 or the Penal Codr of 1911; It 

was amended by the Fourth Called Sessi~n‘Of the Thirty-fifth 

Leglalaturb (Acts 1918, Fourth Called Sass. C. 91, 31; 19 

0. L. 1941, and a8 than raanaotad read a8 iollowe: 

I.:,: 

*The preoadlng artiola shall AOt apply to 

&*hia 

any paaoe ofrloar In the actual discharge 

orflolal duty, nor to tha aarrying of anus 

OA OA8'8 Own pr8miS9s Or place Of bUsIAaS8, nor 

to persona travalllng provided. this arcaptlon 

ahall not apply to any deputy constable, or epeolal policeman who does not racalva a OOmpansa- 

%lon of forty dollars or more per month i'or his 

earvloas aa ouch officer, and who la not appocnted 

‘in OOArOrmity wlth tha statutes of this Stat8 authorlzlng such appolntmaat; . . .v (Emphasis ours.) 
Honorable Perry L, Jones, Page 4 

As reoodlfled in 19e5, and an it stand6 today, does 

the statute require & deputy aonsteble, in order to oome wlthin the exoeption, t0 *reoelve a oompsnsatlon of forty dollars 

or more per aonth for hi8 servl~ea?~ 

Another lnoldental quretlon oonoerns the authority 

o f a private o itizen to e& p lo y either a l apeoial* or a *deputy ooastablea to keep order la a nlght olub, and to pay the 

ma of $4.00 per night (or any sum) ror suoh re~loee. 

The only referrnoes we find in the statute8 to as eoial oonstablerw, ae suoh, are round in Artloles 108 and 1 I&- 

-e Oode of Criminal Prooedure. They may be appointed by 

any magistrate, only to *suppress rlotr, unlawful aesemblier 

and other disturbances at eleotions*; when duly appointed in 

aooordance with th4 provlslona of the olted artloles of the 

Code, they ham all the power6 Of peaoe Oifioeks generally, 

for the limited purpose tor whloh they are appointed. Conzales v. state, 55 Tex. Cr. R. 430, 110 S. 8’. 740. 

I 

We find no allusion in the Codes to the term *e 

olal deputp oonstable. The Leglelature has attempted to 

thorize *apeoial-deguty aherlrrsr In qertaln counties (Art. 

iii121-3, 12 ‘Vernon@e Annotated cfvll Statutea)t but we rlntl 

no leglelative eftort to orsate or authorize suoh apeoial 

otrloers to serve with or under oonstables, 

We do know that there is provlslon ror the deslgnation or persons other than regular oitloere to serve prooess and warrants or arrest in certain oases of emergenoy 

(Arts. 231, 888, c. c...;p..); and on at leaat one oooaslon the 

person 60 named was denominated a *deputy oonstablen (Stephenson V. State, 93 Tex.’ Cr. R. 578, 249 9, W, 492). The 

cited case holds that gftlzen$I appOint8a under these statutes 

oan lawfully oarry a pistol while 80 engaged. Bowever, we 

do not thlnk these statutes are pertinent to your problem. 

ArtiOh 484, supra, speoiflea tba exenptlon rrom 

prosecution ior unlawfully boarlng arms, lnsotar as the otricer here alluded to 1s oonoerned, to a *deputy oanatable”. 

Irrespective oi the applicability of the clause, *who ie appointed in conformity with the statutes authorizing suoh appointment*, as contained in such statute, we think such would 

have been contemplated. Xn other words, where the artlole 

uses the tern *deputy constablee, one who h.as been duly and 

legally appolnted, qualified and is aotlng as suoh, is oontesplated, and is intended to have the benefit of the law. 
45 

,a” 

, 

1 

Honorable Ferry Lo Joneg, Page, S’ ..,A _. : 

ALthough Article 484 Penal code, 1925, supra, 

rrtanaing alone, may be rusoeptfble ot construotlon as to 

whether- the undereoored portion with referenoe to reoei~ing 

compensation ol forty dollars or more.per month ir applloable to a deputy oonstable, we think the 1eg;islatlve history 

of the act olearly indloater that it 1s. Notes the undersoared portloa or the amendment 0r 1918, suqra. See Stephenson vr State, 93 Tex. Or; R. 570 249 5. WI 492, a~pra, wherein it is ‘pointed out that the evident purpoee oi the amendment 

was to dlsoourage a5l prevent the useless add proalrououa 

oarrylng of aims under the guleo of speoolal deputies. Also, 

;;in~~~O-b372, Attorney deneral of TexaC, approved~ January 

1 l j, 

ë... ì: 

we hereby~‘reiterate th’e language of our raid Oplnion O-6372: 

*The provisions contained in Arti 484, 

Vernon’s Annotated Penal C~ode, regarding compenaatlon or )40.00, or more, per month, is applloable to deputy oonetablea and speolal po$ioemen, 

. . .* 

In our Opinion No. O-773, to which you referred in 

your letter submlttlng the above questione, It Is stated1 

“. . . it la the opinion ot this department 

that a dep’uty sherlit who preserves the peaoe at 

a publio oelebratlon and danoe would be .aoting 

within the scope of hle ottioial duties and would 

not be entitled to receive extra aompeneation from 

the oounty or iron thtra pereona, a different, or 

a greater or less oompensa>lon ror his ofrloial 

servloes than that whloh has been presorlbed by 

law.* 

In the ease of the question as submitted by YOU, 

we express our opinion that either a *apeolal* or ndeputyW 

constable, oonoedlng his appointment to be legal, would be 

charged with the oi’flclal duty to preserve tine peace, ii 

Freseot 11: a night club, and as such officer, he uould not 

be authorized to receive .,;4.00 ariight, nor any otbr sum 

as compensation from an individual “for keeping order in a 

Light club”. 34 Tex. Jur. 534, 1117, and casea olted. The 

compensation of public officers must be fixed by the Leglsizture or by some governi% body exptesely authorized so to 

First Saptist Church v. City of acrt S’orth, (Tex. Come. 

$) 26 2, :;, (2d) 196, afflroing judgment (Tex. Clr. App.) 

3. -2, (26) 130. I 
~,’ 46 

Honorable perry L. hones, page 6 

In view of our erpreseioru above, wfilsh we bellerr 

are amply supported by the authorities, 

1: 

ou are aahba that 

it 18 -our opinion that a nepeoial oonsta lea or l a ep ueoA- ty 

stable* keeping order in a night olub urder the oiroumstanoes 

recited ia your firat uestion, a8 a mtter or law, would not 

oome within the q&ept P on8 and exemptions preearibed by Artiale 484, Eenal Q&W Bupra, ‘should he be prodeeded against 

for unlawfully’ o$Zrpping the aI& prohfbltod by Artlolr 483, 

Penal Code; ‘. 

Y0Ur seOOnd qUS8tiOA has been partially’ OOhelaerea 

above, For ofrioial duties,ruoh oMioer would not. be OP. 

titled to receive aAy comQonsatfoA other than that, whleh has 

beeA protiaea by law. 84 Ter. Jurr 534, mpra. pr any 

other duties, AOt ooming rithtn the soope of a p-04 ofiieer, 

oi oourse, thp oorapensation would be a matter 0r privatr OOAtraot. But rhen a disturbanoe of the peaoe beoame imminent 

or aotual, if’ .an ortioer, one la oharged immediately with a 

apeoifio duty to preserve the peaoq. See Artlo 37, Code 

of Criminal Frooedure, 1925. Xhile it is tiue that ArtiOle 

38, c. c. P., in derlnlng peso8 oiri0ers statsa that a OOA- 

.atable is suoh and’ omits any referenoe to a deput eonatable, 

in ‘#&laon V. State, 117 Tex, Or. H. 63, 38 9. B. T 26) 733, 

it 1s pointed out that @iale 36 waa enaoted lor\g prior to 

tha time that provlelon was made tor the appolptmant of a0- 

puty oonstabler, and the ease oontalne this st,atetintl 

1. . . We think it was the intention or the 

Legislature iA providing for the appoidtment of 

deputy oonstables to impose upon suoh Ofricer 

ths duties required or peace officers. ft each 

were not the oaae, the oitil statutes to tiloh 

referenoe has been made are without eifioaor. 

.* (ReterrlAg to the statutes providing ior 

&uty oonstabler.) 

Your third questlon le also partially covered by 

the dl ecusdon above. 

However, merely because one 1s a deputy constable, 

he would not be re-,llired to give all of his tine to the duties 

or the ofrice which he holds. In our Rplnlon No. O-5091 it 

was held that a oofietibla on a salary basis could draw his 

Salary as constable,; although he was also employed by a Railroad as a trainman. ‘It is well known that many peace offioers, 

eepaolally precinct ofricere, must eutiplemant their offlola]. 
honorable p*rrp 1. Tonea, Pa&‘9 

lAoome8 with earnLAg derlrea from non-governaaeatal aotlvl-’ 

tieo, 4116 80 10% a8 the hold themselves available at all 

tlmeer for whatever otiio I al dutisr that mi ht.oome 

8ee DO legal obstaoler to prevent their a0 & 

up, r8 

~g 60, pr0eaea 

suoh employMAt does Aot antail aotlvitier inooasistent with 

theit offioial dutl68. xA OSOO Oi AeeleOt Of OffiOiai duty, 

the law provides a remedy. se Title 100, Revlsod 01~11 

statute8 ~r’iwas, 192s; l 0ffidert--~eAoval or*, 8.Aa easeoially hrtiole8 S970; b9-73, et 8~3~ 

AS Jour question is stated, v~ do not believe the 

deputy ooA0table 00ua legally be paid by private inairiaualr 

order iti~r alght olubv. xi. a8 already 8tated 

eputy ~eonstablr ma8 pmseat 111 a atLight olub where 

a dli&rbanoe aotually OOb~tieil or w&8 i~$If@fag he~~d~l4 

have dAjOiJ@a on him bye law a. *fear and ilirtilwt iutf t8 sot 

in hi8 Official Oairacity ‘t0 preserve the peaOOr If the OOULLty of hia appolntmeat, -and wherein the night olub lo rltuated, 

payr it8 preotnot of’rioers on a salary basis, suoh beputy 

rould be bound, IA event 0s arreat aa eoAvlotioA 0s any offender, to collect the rtatutory fees for hir aervioe8, from 

the defeodaat, and through his prinoipal, t& constable, to 

remit said ieet# to the Ofricerr~ Salary yund of the oouaty. 

If the oounty hapkened to be paying its preoinot orrioera ,on 

A tee basis, the prinoipal, Constable, would be sntltle4 to 

the fee8, subjeot to aodounting at the 8na or the year. In * 

Aeither event would the operator at the Aight 01~8 be liable 

for tb8 fee (unlem he happened to be the ooavioteb aerenaant), 

nor ooula the orrioera, or the ooucty, prooeed against him 

to oolleot it. 

1f the OOUAty pays it8 preolnot orrtaers OA r 8alary basis and the oommisaiollbro * court authorizer the appointment and aooepta the servioeu of a deputy oonstabla, and flxe8 

no salary ror auoh otrloer, he ie not legally entitled to 

look to private souroes for oompensatiod for periorming his 

otriolal duties. The zuthod of a polntment e ml the ooapensation, if any, to be pala auoh off E oera la fixed in .Wtioles 

3902 and BBWa, Varl;on*s ?¬ated Civil Statutes of Texas. ‘ 

Xith reference to such aalarles, it la noted that the law 

~ovides a mximm or *oeilingn bayor&d +.vhfoh a oollabg or preoinot ofricer may net ~50, but d&s not presorlbe a rninlm~~~ 

or ~rloorv. 

It, for performing ah offioial duty, the deputy 

constable does oolleiot compensation rros, a private source, 
Ronorablr Perry L. Joma, Page 8 

ruch aa a night olub operator, he Is doing that whloh Is um 

authorlze?l and Illegal, but whatever may be the outoome of 

any proceedings brought against him for suah aonduot, the 

oounty cannot oollsot the money and therefore the offioer 

oonoerned aould noC be oompelled to “turn said mouey into 

the Oounty Treasu+. 

YIth refersnoe te your fourth questloo, we again 

note the expression or term aa eoial de uty oonatablea~. 

see ow diaouesion herelnabov 8-T al thL 

A@ the question is stated, we express the oplnlon 

that the pUQO4ted OfiiOtW0 in qUfJ8tiOfI a0 ~0% OOIbIO Within 

the forty dollar (#40.00) ooupenaation exemption, Thir for 

the reason* also dlaouased above, with rererenoe to prlv6te 

employnent 40 perform offioial duty. 

It will not be Ino&bent on, you, as oouaty attorney, 

to negative or otherwise antlolpate defenses, but we feel it 

proper in thle oonheotion to rerer you to the line of case.8 

be.aring on the defense that the aoouaed believed or had reason to believe that he was an oftiaer and had the rfght to 

carry a pistol. gee ior example, the Oases of Lyle T* State, 

21 Tex. cr. R. 153, 17 3. iV. 4251 Cferoll VI Sate, Terr Cr. 

App., 57 3. V. 94; Blair v. State, 26 Tex. Or. x* 387, 9 3. w, 

890 and Barnett v. State, 89 Texr Cr. RI 48 229 2. We 619. 

However, a mistake of law Is no defe1188, ad in-oases whiah 

we feel more almllar to the one0 of whloh you Inquire, applloatlon ot the aorreot prlnolple will be found in fohnson vb 

Sate, 73 Tex. Cr. W. 133, 164 3. V. 833, Patton v. 3tate, 

61 ~61s. cr. R. 352, 135 9. #,- 556; Ransom 'I. State, 73 Tax. 

Cr. R. 442, I.65 3. s, 932 and Gandara V. state, 94 Tex, Cr. 

R. 535, 252 3. 6. 160. 

In view of the last olted caae~, we are lnallhed ta 

the view that in a case suoh as you mention, say such defense, 

if interposed, would be held inagplioable and inadzlssible 

a8 a Viatake of lnww. 

you fifth question is answered in the ne,<atlve. 

Nothing in the srceytioaa statute (-Art. 4E4, =. C., supra,) 

makes suoh a state of facts a defense. 

to have 

Aa to your sixth question, the oourta do not seem 

sassed directly upon the question of Ahether 9 n&ht 
: 

49. ” 

olub’, ar ruah~ 0-1 within the statute, 

485, Penal code, 

we quote Artio1e 

,-xi any pereon ahall g0 Into any Ohuroh or 

any religious assembly, any sahoolroom, ballroom, 

OS other plaoe where persons are assembled for 

amueefient or for educatlonel or aolentlflo pur- 

~0868, or into any oiroua, ehou or pub110 l xhibition of any klnU, or social gathering, or to 

any eleotlon oa the day or ‘days ot any eleotion 

where any portion of thd poop10 of thle state are 

aolleoted to fote’ab an elsotlon, or to any other 

plaoe *wh6 fe 

r 

ople nay be aosenbled to nustor or 

perform any thee publfo dutleti, and ahalA Bare 

or oarry about hia person any 

R 

I.stol or other 

firearm, dirk, da 

zear, braaq knuo% 

er, slung s ot, aword cane, 

e, bowio knife , of any other 

nG of a knife made and manuiaoture# foti the purpose 0r orrenee end aerense, he shelf. be flned 

not less phan one hundred nor more than rive hundred dollare or be oonilned In jail not lese 

‘Taft;’ thirty bays nor more than twelve months, or 

. Aota 1871, p. 25; Acts 1915, p. @L” 

It ~111 be noted that the penalty la In suhstantially the came language and ia the esme a@ that provided in 

the general statute against oarrying prohibited arzae, Arti010 483, gene1 Code, supra. 

The gist of the orrem oorered in Artiole 4.85, 

l upm; is the carry& of a prohibited reapon into an %asembly ‘mentioned in the statute 8Dd there must be an aotual 

assembly of poogle at the time the weapon 1s 80 carried, 

Cassels v, State, 108 Tex. Cr. R. 477, 1 3. %. I2d) 644; 

Ralney v. State, 8 ?ex. Ur. X. 62, 34 Ann. Rep. 736; Owens 

7. State, 3 Tex. Cr. ‘i. 404. 

It would seen olear that an assembly au04 aa you 

cention would COW rlthln ttnt ?art ot ths statute detlnlng 

the assemblies covered as a “place aSere persona are assembled for aausezent” , or tbst cost certainly such an aasenblage :would be a “social gatherfng”. If the weapon be oarrled 

into the e.ssezbly a-P.ilo L,anolng was going 511, we think olearly 

the statutory word WballroonP ;vould be applicable. 
50 

Honorable kerry L. Jonee, Page &O 

In Owens v. State, slpra, an lndiotment oharefng 

the offense to have been committed in a ballroom till be 

understood to mean a place where a aOOfa1 gathering oomposed 

of men and women were engaged in danoing and it is not even 

neoeearary to allege that danolng was going on, this being a 

m.adr or poor. The court rurther etated that th@ indlotment was good in the oharge either that the offense was eommitted in a wballroom" or at "a eooial gathering*. ~6 afflw that suoh a plaos as you doeoribe in yoour sixth quo&Ion 

would come within either Artiolb 40S or 40s a# a plaoe where 

the unlawful oarrylng of weapons ilr prohibita& 

Consideration or your seventh quertlon imp&~ notloe 

oft the language or Artiole 486, zenal Godo: 

@The preoedi& artiole (Art. 4t#,'&~naLaodi) 

shall not apply to peace orfloere or other prama 

authorfeed or permitted by law to oarry.rnar at 

the plaoelr therein designated.* 

It will be noted that ths exqaiitione Ben enumqfated are not ae numerous a8 thore mentio&ed io. Artfole 464, 

nupra, 15 regard to'the orlmci of wilawrtnliy carl?ying arm 

generally (Art. US, atp*a). However, the ‘limltat$on doea 

not deem to be so striotly applied to pea00 ortiseas. .Wherwas Artiole 4B4 prwides proteQtion to thm peaoe off&oe.ra 

%A t,he aotual dieoharge or oifloial dutiss* utQ~~dorr.eot. 

within thi .roeBtLon, include'deputy 8cnetkiblei or r~.ofai 

pollo~~n~,,~o~reo~ive lees~thn rorty dollar8 pur moobh eqrpenaatlon, it ha@ b6en held under Artd~ola 406 th&t,it wf L 

not incumbent UpOA a' apeoial polloeman to chow that he wall 

then and thare in tb6 disoharge of his &tie8 me #uoh. Wllliaius v. State, +I3 Tex. 466. 

'We bellare, however, that Artiole 480 would have 

to be read in the light of Artlolae 4815 atid 484, and that the 

Willlame ease would require reoonsbderation, ein~e the amendment to the law in 1916 inoorporated into what is now AFtiale $84 the requirement that a peaoe officer suet be *in ths . 

actual dlsoharge or his orflbial dutr at ~ths time or oarrylng the weapon.. fn other worde; we think the words *authorized or perdtted by law to oarry arme at the places therein 

designated" would be oonlrtrued to rerer bask to thq g6noral 

exemption statute, Artiole 484, aa the +law* referred to in 

said Article 486. . 
51 

Btonorable perry L. ~05~6, Page 11 

Therefore, you are advised that it is our opinion 

that *apeala oonstabl6s* or "deputy oonstablee6 rererr6d.to 

in your firet question would not oome within the exoeptlona 

to Article 4235 ae speoiried'in ArtiOle 486, for the 6am6 reaeona oonsidered in our answer to your first question. 

Your eighth quuestion Is answ6red in the negative 

by virtue oi the expression8 of the C,ourt of Criminal Appeals 

found in Alexander v. State, 27 Tsx. Cr. R. 533, 11 S. W. 6RS; 

Owens v. State, 3 'Per. Cr. R. 4C4; Brook6 v. State, 15 'per.' 

Cr. B. 88; ~05605 t. State, 48 TBI. cr. B. 484, 74 8. w. 570; 

Miohols V. State, 43 .S. W. 404; Gibbs v. State, 70 T6x. Cr. 

R. 878, 156 S. W. 687; Oasssis V. State, 108 'Tex. Or. R+ 477, 

1 S. Pi. (2d) 644. IA the last oas6 cited, Judge Eawklna of 

the present oourt said; 

~6The owner or orroupant or a hou86 whore p60- 

pie are asse,mbled In a social gatherIn& may bo 

guilty or there oar@.5g a pistol odler the provl,6io56 of Art1616 485, 2. 0.; h65ee uader the 

fact6 proven th6~ oougt 

lant.8 epeotal oherg 

refuaad appaldlreoted~sa aoqtittal 

if he was ln his own horn6 at th6tim6 h6oarried 

th6 pistol.. ~(alting ~easss.) 

With r6f6r6506'to your ninth question, w6 have oarefully ooneidske$ th6 propodfion of whether a hotel lobby 

oomea within the typ6 oi assemblage oovsred by th6 &tatute. 

we have ooiae to the oo5olualo5 that it muld not I #II taoto 

i; ;rb a plaoe; but natufally oonditione could ar -!hmizki) 56. 

Certainly a hote,l lobby ie not a ohuroh, abhoolroom, 

ball&om, or olrow, show, or publi~o exhibition ar meant In 

the article. X6 do know that persons could very w611 a#- 

eemble there for r6ligiou6, eduoational or soientirlo purposee. Inaeed eooial gatherings ar6 fntquantly held in hotel 

lobbies, and it require6 50 vivid Imagination to vieuallze 

people assembling ther6 to perform public duties. Suoh mat- . 

ters would be susoeptible to proor; if the Stat6 should prove 

6uiflol6nt faote, a hotel lobby would oome ?&thin the law. 

Reoause of the possiblllties, we do not attempt to oat6gorioally answer your ninth qusstion. 

I 

Your tenth and rinal questionis aa to the right of 

a hotel deteotive to bear the prohibited arme while 05 duty. 

As stated, if within the hot61 lobby there was a pub1i.c %6- 

semblage under the olroumatancas dieousaed in the preoeding 

paragraph making said place one withI Article 485, the hot61 
52 

,k Honorable kerrj L. 50566, kage 12 

deteotive would 

cited in answer 

00m6 within the rules laid down by the oa666 

to your ei hth question, and h6 would be 

-enable to proseoution. f f the, hotel lobby did not, in 

faot, come within euoh definltio5, under the authority and 

limitations a6 announced in Robison v. State, 103 Tex. Cr. 

R. 141, 280 S. w. 776, we are Of the opinion that the deteotive oould bear arm. With reierenoe tO a night watohmail for an oil company, the court said: 

Apppellant wa6 emppleyed by the Big 

L6ke &'&mpc%ny a6 a nlgh$ watohman. We h6V6 

no doubt of his right to oarry a pistol aurlng 

the hours and at the plaos or hi8 SaLd employment. 

. . . 

Appellant teetlfl6d that'lt was hi8 

busilre*~s't~ watoh the 6omp6ny*s property at night. 

V6 are.oi oplni05,that app6llant*e right to 

oarry th6 pistol only .Iay~wit~ln thb boandrs of hle 

eraployrPsnt.and during the hour8 that hs wae 05 

duty. Lxlrlng'.euoh houro'nr, thiak he wae exempt 

under thclaw, but that ne-had no right tQ orafm 

ld tion whsn 86okl ardund the town and oilImage ~?!~!~xoA in the daytim6. He doss AOt a~hdm 

that he had any su$Ndu$i66 witliln hla elqploym65t, or that h6 ~6 engag6dz~~.n any ~Offlo~ial duty 

at :@m tima .he owes aeeA oarrying tlm pletbl.~ 

(~pbasis ours.) 

We trust th6.t the abOv6 ~4txpo6lt~o5 oi thb ]ar ap 

pl&oable' to prohfblt6d‘w6apon6 dll prwe 30 Abe of benefit 

to you, aM the@ it aaequately~656lrars all or your questions.