OFFICE OF THE A’ITORNEY GENERAL OF TEXAS 

AUSTIN 

Honorable Homer Garrieon. Jr., Direotor 

Department. of Publio Safety 

Camp Mabry Austin, Texas 

Dear Sir: Opinion No. Q-43 

This Is in reap 

from uhioh wa quote th@ r 

operato oomme be iawrtil r0 

tter o? noent date, 

0r peraon8 who 

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 praotioally every oa8e 

dViB0 the publio generally. 

” ” . . l . 

The artiole oited by you (Art. 484, Penal code) 

contains the exoeptions to the statute forbidding the uulak 

tu.l bearing of certain arms. Artiole 483, Penal Code, is 
Eonorable 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 manufaotured or sold 

ror the purposee 0r orreaae or defense, shall be 

punished by fine not less than #lOO.OO nor more 

than 8500.00 or by oonrinement in 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 preoeding artiole shall not apply to e 

person in actual servioe as a militiaman, nor to 

any peaee offloor in the aotual disoharge or his 

official duty, 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 Berrioes as Bueh 

oifioer, and rho is appointed in OOniOnrity with 

the statutes authorizing such 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 diioharge of his duties in the oounty of hia 

residenoe, nor shall it apply to any game wardon~ 

or deputy Game, Fish and Oyster Commisaloner rho 

aotually reoeires from the !?tate rees or oompenrration r0F his services. Aots 1871. p. 25, Aots 1918, 

P- 194." {Emphasis ours). 

!Phe BOhtiOn or your question, or oourse, depends 

upon the Interpretation to be given the words of the latter 

statute as 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 punishment presoribed by Article 483, 

BUprB, regardless of the feat that he aarries a pistol; if 

he is not a WtrevelerW, he is ameneble and may be convicted 

and punished as a law violator. 
Honorable Homer Carriaon, Jr., Director, Page 3 

U!e take oooasion here to allude to earnest suggestions made on at least two ooo~sions by the Court of 

Criminal Appeals of Texas, that the Legislature should 

either repeal the exemption, or define what 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 Lattimore wrote 

the roilowing: 

"Cur Legislature says, in article 484, P. C. 

1925; that *B person traveling*, who oarries a 

pistol, is not punishable therefor; but fails to 

define or Bay who is a person traveling, and the 

courts through all these years have traveled deSioux 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 judioial announcement 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 distanoe annihilating speed, the inorease of population, the 

joy ride extending itself in a few hours aver 

several countlaB, the man really oonvoying Yaluablea, 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 Legislature ought to repeal or define." 

Pfe have read many oases in our errort to aesiat 

you in determining whether a truck-driver, under Fe ;izumstances given, 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 journey are elements which have to be oonsidered. Preoedents established in the days Or horse-drawn YehfOleB 818 

not applicable in 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 

. . . 
Honorable Holaer Garrison, Jr., Direotor, Page 4 

Despite the oonfliots noted, we have found BOIN 

caBeB whioh may properly be termed aB being analogous to 

the question y0u 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 traveler and therefore 

exempted iron criminal liability for oarrying a pistol. The 

decision aleo asserts that Buoh porter, when on board the 

train, was at his place of business, and was exempt from 

proseoution ror that reason also. 

In Barker Y. Satterfield (Tex. Cit. App.) 111 s. W. 

437, a train auditor was arrested for carrying a piatol while 

making a trip as train auditor on a paeaenger train, between 

two points some 300 miles apart. He was arrested while on 

the train, and brought BUft againet the arresting offioer ror 

damages, alleging that the arrest ms wrongful, that he wee 

entitled to crarry the pistol because he wae a traveler and 

wee then engaged in his business. The Court sustained the 

auditor's oontention. 

In the oase of Eiokman Y. State, 71 Tex. Cr. B. 

483, 160 S. V. 382, a merahant derended a chsrge of carrying 

a pistol upon the grcand that he was a traveler, but the 

Court disallowed the pretense, the reoord disolosing that 

appellant was going out to see hia customers who lived 

'within trading distances" of hiB home town. Since this 

was true the Court said this would not constitute him a 

traveler within 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 proceeded to 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 Texarkana to 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 opinion we 

quote the iOllOwing: 

n . . . It is oontended by appellant that 

the facts show he was a traYeler. The Legislature has never seen proper to derine a 'traTeler*, 
Bonorable Homer Garrison, Jr., Direotor, Page 5 

and it thereiore becomes necessarily a question 

of fact to be determined where the issue arises 

by the judge or jury trying it. In the present 

case no Jury was demanded, but the matter was 

submitted to 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's alaim 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 Armstrong Y. State, 98 Tex. Cr. R. 

335, 265 S. W. 701, the appellant waa ehoun to be in the 

businaas or hauling cotton pickers rrom one plaoe or employment to another, but the Court Beid vðer he was a traveler 

was a question of faOt, end refused to disturb the tinding 

of the inferior oourt. 

You are oertainly oorreot in your statement thet 

cpractioally every oaae would have to be determined upon 

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 required would be such 

as to warrant the OontrlUBiOn that a defendant would be entitled to the exempt$on as 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 Criminal Appeals has not laid down an unvarying 

rule to rit every instanoe. Surely, the Legislature has not 

heeded the Court's plea ior amendment derining the term 

vtravelerc, nor repeeled the exemption. 

We regret our inability to give you a better oriterion to guide you in determination of the question with 

whloh you and other peaoe oftioers, proroseoutora and judges 

generally must oonstantly be confronted. 

Yours very truly 

ATTORJy25GRWERAL OFTEXAS 

@* njamin Wcodall 

Assistant