- 

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 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 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 Investigators 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 Education. 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