,M MATTOX 

ttorney General 

Ipmms court 8UlldklQ 

r.aBox1254B 

Auam, lx 75711.2545 

2u75-2501 

lkx QlW574-1357 

I elecqpier 512147502s5 

:4 Jackson, Sulto 700 

wellas. TX. 75202.4505 

2w742.SQ44 

&24 Alberta Ave., Suile 180 

El Rso. TX. 7QQtB2793 

1Y5334454 

Teme. suits 700 

ouston. TX. 77w2.3111 

131223-5888 

I5 Broadway. Suite 312 

xbbock. TX. 7Q401-3479 

SCW747.5235 

Xl9 N. Tenth. Suite B 

nwllerl, 7x. 7asQt.1555 

wa8S2.4547 

Lw Makl flu*. mte 400 

Sm Antonio. TX. 7-2797 

t2a25.4191 

An Equal OppOrtunityI 

Wirmalive Action Emplow 

The Attorney’ Ge,neral of Texas 

Dacetther 28, 1984 

Bouorable James S. L:(:rath 

Criminal District At':orney 

Opinion No. m-286 

Jefferson County Courthouse 

P. 0. Box 2553 

Beaumont. Texas 77’104 

Ret Whether handguns may be 

bought, sold, and traded at 

the Port Arthur Civic Center, 

a premises licensed for the 

sale or service of alcoholic 

beverages 

Dear Mr. McGrath: 

You inform us th,at handgun dealers rent spaces at tha Port Arthur 

Civic Center in ordr,r to sell the guns. The Civic Center is licensed 

by the state for the: sale and service of alcoholic beverages. You 

wish to know whethey, section 46.02 of the Penal Code is violated when 

handguns are bought, sold, and traded at the Port Arthur Civic Center. 

Section 46.02 of the Penal Code provides es follows: 

(a) A person commits an offense if he 

intentionally. knowingly, or recklessly carries on 

or about II:Ls person a handgun, illegal knife, or 

club. 

(b) llxrept as provided in Subsection (c). an 

offense under this section is a Class A 

misdemeamr. 

(c) !m 'offense under this section is a felony 

of the third degree if it occurs on any premises 

licensed m: issued a permit by thin state for the 

sale or sowice of alcoholic beverages. 

Section 46.03 provides certain exceptions to section 46.02 of the 

Penal Code: 

(a) The provisions of Section 46.02 of this code 

do not app::y to a person: 

. . . > 

n. 1270 
Honorable James S. McGrath - l’oge 2 (JM-286) 

(2) on his ova premises or premises under his 

coatrol unless he i.r an eeployee or agent of the 

owner of the premises and his k-i-7 

responsibility is tD act in the capacity of a 

private security ,91ard to protect persons or 

DroDertY . la which eveat he mbt comol~ with 

&bhivibion (5) of 

(3) traveling; 

. . . . 

this subsection: 

. - 

Whether OF inJividuai tlas violated section 46.02 or may avails 

himself of section 46.03 is a fact questioa to be :esolved through the 

criminal process. See, e.g.-, Tex. Coast. art. 1. S110,15,19; Code 

Grim. Proc. art. 1.03. Thus, ve rannot aaswer your question as a 

matter of lav. We can, however, point out judicial constructions of 

sectioa 46.02 which should be helpful to you la your role as 

prosecutor of alleged violations thereof. 

Section 46.02(c) of the Penal Code has been strictly enforced. 

The court in Hilligan v. Starl, 465 S.W.2d 137 (Tex. Grim. Apr. 1971). 

held that the defendant comitted a felony offease by carrying a 

pistol in a coffee shop licmsed to sell beer, even though it could 

not legally sell beer at the time defendant was there. A~I individual 

prosecuted under section 4,6.02(c) is not, however, deprived of 

defenses available under t!le Penal iode. The Court of Criminal 

Appeals has decided that the ~defwse of necessity, which section 9.22 

of the Penal Code defines, 16 not unmailable as a matter of lav la a 

prosecution under section 46,02(c). Johnson v.- State, 650 S.W.2d 414 

(Tex. Grim. App. 1983) (en baac). Thus, statutory aad judicially 

created defenses to carryinS a gun are not iaapplfcable to such 

conduct on premises licensed under the Alcoholic LIeverages Code. See 

Flores v. State, 486 S.W.2d !i77 (Tex. Grim. App. 1972). 

- 

Texas law has long inc:luded prohibitions against carrying a gun 

and has provided the exceptiona now found in sections 46.03(a)(2) and 

(3) of the Penal Code. The Act of April 12. 1871. made it a 

misdemeanor offense for aayow to carry “oa or about his person . . . 

any pistol . . . .w Acts 1671. 12th Leg.. ch. 34. 51, at 25; C 8. 

Ganunel, Laws of Texas 927 (1:3!M). It included the following proviso: 

[Plrovided, that this section shall aot be so 

construed as to pwhibit auy person from keeping 

or bearing arms on his or her own premises. or at 

his or her own p:Lace of business. . . . nor to 

prohibit persons traveling in tLc State from 

keeping or carrying arms with their baggage. . . . 
Woaorablc James S. HcGrath - page 3 (JM-286) 

Id. Judicial decisions inte,rpretiag the Act of April 12. 1871. 

created an exception allowing the purchaser to take a handgun home 

from the places of purchase. !iee Waddell v. State, 37 Tex. 354 (1872); 

_-- 

Christian v. State, 37 Tex. 475 (1872). The legislature has modified 

the statutes on illegal carrying of guns. but the judicially created 

exception has continually bmcen recognized. See, e.g.. Henson v. 

State, 252 S.W.2d 711 (Tex. ~:rim. App. 1952); Ho1 Ll&na- v. State, 158 

KS14 (Tex. Grim. App. 1913); Waterhouse v. State, 138 S.W. 386 

(Tex. Grim. App. 1911); Pressler v. State, 19 Tex. App. 52 (1885). 

See 20 Tex. Jur. 3d, Crimxr Law 91332. It has been held that the 

purchaser must carry the gun i;rwithout unreasonable delay. Benson 

0. State, w The judicially created defense for purchasers and 

the statutory defense of tr.rreling are relevant to evaluating the 

conduct of an individual who purchases a gun at the Port Arthur Civic 

Center. Whether an individual is a traveler is generally a question 

of fact. George v. State, 234 S.W. 87 (Tex. Grim. App. 1921). 

We next consider provis~lons relevant to the conduct of the 

handgun dealers who sell guns in the Civic Center. Section 

46.03(a)(2) renders section 46.02 of the Penal Code inapplicable to a 

person on premises under hial control. Cf. Flores v. State, 

(predecessor of v section 46,02 inapplicme to liquor licensee s 

employee carrying arms at his place of employment). A prior opinion 

of this office has determined that premises leased by an individual 

may qualify as premises within section 46.02(a)(2) as long as he has a 

right to control these premises. Attorney General Opinion H-22 

(1973). See also Ever* v. 2;. 576 S.W.Zd 46 (Tex. Grim. App. 

1978); Attorney General Opinion H-185 (1973). Whether the handgun 

dealers have sufficient control over the spaces they rent at the Port 

Arthur Civic Center is a fact question. 

Whether particu L;lr conduct violates sectioa 

46.02 of the Penal Code is a fact questioa. A 

judicially created defense to prosecution under 

section 46.02 permit,8 the purchaser of a handgun 

to take it home. !?remises leased by a handgun 

dealer may qualify as premises within section 

46.03(a) (2) if the dealer has sufficient control 

of them. 

JIM MATTOX 

Attorney General of Texas 

p. 1272 
Honorable James S. McGrath - Pzy;e 4 (JM-286) 

TOMGRPXN 

First Assistant Attoruey Generd. 

DAVID R. RICHARDS 

Executive Assistant Attorney Gmeral 

RICR GILPIN 

Chalnnan, Opinion Committee 

Prepsred by Susan Garrison 

Assistant Attorney General 

APPROVED: 

OPINION COHMITTEE 

Rick Gilpin, Chairman 

Colin Carl 

Susan Garrison 

Tony Guillory 

Jim Moellinger 

Jennifer Riggs 

Bruce Youngblood 

p. 1273