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### THE ATTORNEY GENERAL OF'TEXAS

December 21, 1990

HonorableWilliam C. Wilson OpinionNo. JM-1271 Major General, TXARRG Adjutant General's Department Re: Authority of an employee P. 0. BOX 5210 of the Adjutant General's DeAustin, 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 Departmentmay lawfully carry a handgun while performinghis 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 abouthis 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 employedby 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 complywith Subdivision (5)of this subsection: (3)traveling: (4)engaging **in** lawfulhunting, fishing, or other sporting activity if the weapon is a type commonlyused in the activity:

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(5)who holds a securityofficer commission issued **by** the Texas Board of Private Investigators and Private SecurityAgencies, if: (A)he is engaged in the performance of his duties as a security officer or traveling to and fromhis place of assignment; (B)he iswearing a distinctiveuniform: and(C)the weapon is inplain view; or (6)who is a peace officer, other than a person commissionedby the Texas State Board of Pharmacy.
In 1989, the legislatureadded the following provision to the adjutant general'sduties under section 431.029 of the Government Code:

The adjutant general shall:

. . . . (12) employ and arm persons as public security officers licensedunder 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 secretariesof 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 Education. Such a licensedoes not, however,make a person a peace officer and thereforedoes not authorizehim to carry a handgun. YOU ask then by what authority the public security officermay carry a handgun. In our opinion, subsection (12)of section 431.029 of the Government Code, by authorizingthe adjutant general to "employ and m persons as public security officers," acts as an additional exceptionto section 46.02 of the Penal Code. It is well establishedthat any potential conflict between two statutoryprovisions shouldbe harmonized if - .

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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 personswho leave on a journey and returnhome 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 doesCrim. 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 complywith 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 handgunwhile performinghis 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 FirstAssistantAttorney General

mu MCCREARY ExecutiveAssistantAttorney General

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JUDGE ZOLLIE STEAKLEY SpecialAssistant Attorney General
RENEA HICKS Special AssistantAttorney General RICK GILPIN Chairman, Opinion Committee Preparedby Rick Gilpin Assistant Attorney General

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