OFFICE OF THE A’ITORNEY GENERAL OF TEXAS AUSTIN

Honorable

Homer Garrieon.Jr., Direotor Department.

of Publio Safety Camp Mabry 

## Austin,Texas
Dear Sir: OpinionNo. Q-43

This Is in reap from uhioh wa quote th@ 

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operato oomme 

## be iawrtilr0 tter o? noent date, 

## 0r peraon8who aek 

### ii it muld to1 while transer or not, in your ld be allbvmd to 

### ottpry g while he is transok on regular rou$er 6 through several oountiea. I that praotioallyevery oa8e


## dViB0 the publio generally. ” ” . . l . The artiole oited by you (Art. 484, Penal code) containsthe exoeptionsto the statute forbiddingthe uulak tu.l bearing of certainarms. Artiole 483, Penal Code, isEonorable Homer GarriBon, JP., Director,Page 2

the prohibitory

proriaion,and reade as followsr Whoever shall oarry on or about his person, saddle, or in his saddle bags any pistol, dirk, dagger, Blung-shot,sword cme, spear or knuokles made Or any metal or any hard BUbBtanO8,bowie knlre, or any other knire manufaoturedor sold ror the purposee 0r orreaae or defense, shall be punished by fine not less than #lOO.OOnor more than 8500.00or by oonrinementin jail for dot less than one month nor more than one yearr Aqts 1687, p. 6; Aots 1905, p. 56; Aots 1918, p. 194." Uhile Article 484, contains the following language: *The preoedingartiole shall not apply to e person in actual servioe as a militiaman,nor to any peaee offloor in the aotual disohargeor his officialduty, nor to the oarreng of arms on one.8 own premises or place 0r b\Lsiness, nor to per8ons

v nor to any deputy oonstable,or spa&al po oemen who reoeires **8** ocslpensation 0r rorty dollara or more per month for hiB Berrioesas Bueh oifioer,and **rho is**  appointed in OOniOnritywith the statutesauthorizingsuch appointment; nor to the Game, fish and Oyster OommiBsioner, nor to any deputy,when in the aotual discharge ot his duties as euoh, nor to any Game warden, or looal deputy Game, Fish and Oyster Commissioner when in the eotual diiohargeof his duties in the oounty of hia residenoe,nor shall it apply to any game wardon~ or deputy Game, Fish and Oyster Commisaloner rho aotuallyreoeires from the !?tate rees or oompenrration r0F his services. Aots 1871. p. 25, Aots 1918, P- 194." {Emphasisours). !Phe **BOhtiOn or**  your question,or oourse, depends upon the Interpretation to be given the words of the latter statuteas undersoored by us abore. Is a person driving a truck, transporting property on regular routes or speoial trips through several oounties a %rareler"? Ii so, he is not amenable to the punishmentpresoribedby Article 483, BUprB,regardlessof the feat that he aarries a pistol; if he is not a WtrevelerW, he **is** ameneble and may be convicted and punishedas a law violator.Honorable Homer Carriaon,Jr., Director,Page 3

U!e take oooasionhere to allude to earnest suggestions

made on at least two **ooo~sions** by the Court of CriminalAppeals of Texas, that the Legislatureshould either repeal the exemption,or definewhat is meant by a traveler. See Bain Y. State (18981,38 Tex. Cr. R. 635 g4Sa V?;

5;,“& Hanoook Y. State (19271,106 Tex. Cr. R. 66&, Y.

. . In the latter ease, Judge Lattimorewrote the 

## roilowing:

"Cur Legislaturesays, in article 484, P. C. 1925; that ***B** person traveling*, who oarries a pistol, is not punishabletherefor;but fails to define or Bay who is a person traveling, and the courts through all these years have traveleddeSioux routes, going rrom one set 0r racts to another dirrerent,and on to another,trying in each to find Borne

resting place upon whioh might be planted judioialannouncement**BB to**  who is a traveler,but alas, have round it not. The ancient rith hia oxcart, the Mexioan with his burro, the pioneer wlth hiB rOBdleSB route, the modern highwBy, the automobile with its distanoeannihilating speed, the inorease of population,the joy ride extendingitself in a few hours aver several countlaB,the man really oonvoyingYaluablea, and the happy-go-luoky nomad,who spende but a night in each tourist park, and WBnderB on and on forever,all these aid in **graying** the hair of a oonsoientious court trying to Bay who may or may not avail himself of the exemption of being a person traveling,whioh, by the way, the Legislatureought to repeal or define." Pfe have read many oases in our errort to aesiat you in determining whether a truck-driver, under Fe ;izumstancesgiven, would oome within the exemption. alone are not hermonious,the earlier oaBeB tending to the dire&ion of greater latitude of oonstruotion than those Or later years. The distance covered is not alone the determining factor; the mode of travel and the **time** required **for** the journeyare elementswhich have to be oonsidered. Preoedentsestablishedin the days Or horse-drawnYehfOleB **818** not applicablein this age of sixty-mile per hour automobilee. Kemp v. ttate, 116 Tex. Cr. R. 90, 31 9. W. (26) 652; Grant Y. State, 112 Tex. Cr. R. 20, 13 S. W. (26) 889; Smith Y. ytg,*g Tax. 464; Hut V. State, 52 Tex. Cr. R. 477, 107

. . .HonorableHolaer Garrison,Jr., Direotor,Page 4

Despite the oonfliotsnoted, we have found **BOIN** caBeB whioh may properly be termed aB being analogousto the questiony0u present.

In Yilliams v. State, 44 Tex. Cr. R. 494, 72 9. W. 380, it was held that **a** railroad train porter on a regular run of some 150 miles eaoh day wan a travelerand therefore exemptediron criminal liabilityfor oarryinga pistol. The decisionaleo asserts that Buoh porter, when on board the train, was at his place of business,and was exempt from proseoutionror that reason also.

In Barker Y. Satterfield (Tex. Cit. App.) 111 s. W. 437, **a** train auditor was arrested for carryinga piatol while making a trip as train auditor on a paeaenger train, between two points some 300 miles apart. He was arrestedwhile on the train, and brought **BUft** againet the arrestingoffioer ror damages,alleging that the arrest ms wrongful, that he **wee** entitled to crarry

the pistol becausehe wae **a** travelerand wee then engaged in his business. The Court sustainedthe auditor'soontention.

In the oase of Eiokman Y. State, 71 Tex. Cr. B. 483, 160 S. V. 382, a merahant derendeda chsrge of carrying a pistol upon the grcand that he was a traveler,but the Court disallowedthe pretense, the **reoord** disolosingthat appellant

was going out to see hia customerswho lived 'withintrading distances"of hiB home town. Since this was true the Court said this would not constitute him a travelerwithin the meaning of the Code.

A driver of a servioe oar, employed to take other parties from Tesarkans to Linden, **TezBB,** who were told by the persons to whom they talked in Linden to go to Atlanta, **TefaB,** to see at111 others, and proceededto then take the asid parties to Atlanta was arrested in the **latter** city when round with a pistol pushed between the seat oi the car end the oushion. It is 29 miles rrom Texarkanato Atlanta and 16 miles rurther to Linden. Upon appeal the Court of Criminal Appeals refused to hold that the driver of the service oar was a *traveY!erv as a matter or law. See Paulk v. State, 97 Tex. Cr. R. 4l5, 261 5. V. 779. From the opinionwe quote the iOllOwing:

n

. . . It is oontendedby appellantthat the facts show he was a traYeler. The Legislature has never seen proper to derine a 'traTeler*,BonorableHomer Garrison, Jr., Direotor,Page 5

and it thereiorebecomesnecessarilya question of fact to be determinedwhere the issue arises by the judge or jury trying it. In the present case no Jury was demanded,but the matter was submittedto the district judge. He heard the evidence and saw the witnesses,and his finding reileota the raot that he did not aocept as true appellant'salaim that he was a traveler. We think it would be going too far to hold as a matter of law that he was."
In the oase of ArmstrongY. State, 98 Tex. Cr. R. 335, 265 S. W. 701, the appellantwaa ehoun to be in the businaasor hauling cotton pickers rromone plaoe or employment to another,but the Court Beid vðerhe was a traveler was a question of faOt, end refused to disturb the tinding of the inferior oourt.

You are oertainlyoorreot in your statement thet cpractioally

every oaae would have to be determinedupon the facts as they exist". We oan oonoeire of cases of the oharaotep mentioned by you where the distance owered, the mode of travel used, and the time requiredwould be such as to warrant the **OontrlUBiOn** that a defendantwould be entitled to the exempt$onas a traveler. On the other hand, where a person drives his truok short diatanoea,and returns to his home daily, we do not think the **COIUtB** would Benotion the claim to exemption. So **fBr** as we have been able to rind, the Court of CriminalAppeals has not laid down an unvarying rule to rit every instanoe. Surely, the Legislaturehas not heeded the Court'splea ior amendmentderining the term vtravelerc,

nor repeeled the exemption.
We regret our inability to give you a better oriterion to guide you in determination of the questionwith whloh you and other peaoe oftioers,proroseoutora and judges generally

must oonstantlybe confronted. Yours very truly ATTORJy25GRWERAL

OFTEXAS

@* njamin Wcodall Assistant