,MMATTOX ttorneyGeneral



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AnEqualOppOrtunityI WirmaliveActionEmplow 

# TheAttorney’Ge,neralofTexas

**Dacetther**28, 1984

Bouorable JamesS. L:(:rath Criminal District At':orney Opinion No. m-286 Jefferson CountyCourthouse P. 0. Box2553 Beaumont. Texas 77’104 Ret Whether handguns maybe 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,athandgundealers rent spaces at tha Port Arthur Civic Center in ordr,r to sell the guns. TheCivic Center is licensed by the state for the: sale and service of alcoholic beverages. You wish to knowwhethey,section 46.02 of the Penal Code is violated when handguns are bought, sold, andtraded at the Port Arthur Civic Center. Section 46.02 of the Penal Codeprovides es follows:

(a) A person commits an offense if he intentionally. knowingly, or recklessly carries on or about II:Lsperson 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 donot app::yto aperson:

. . . >

n. 1270Honorable 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 inJividuaitlas violated section 46.02 or mayavails 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. Thecourt in Hilligan v. Starl, 465S.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~Iindividual 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 Codedefines, 16not unmailable as amatter of lav la a prosecution under section 46,02(c). Johnsonv.- 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 onpremises licensed under the Alcoholic LIeverages Code. See Flores v. State, 486S.W.2d !i77 (Tex. Grim. App. 1972). -
Texas law has long inc:luded prohibitions against carrying a gun andhas provided the exceptiona nowfound 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,Lawsof 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 armsonhis or her ownpremises. or at his or her ownp:Lace of business.

. . . nor to prohibit persons traveling in tLc State from keeping or carrying armswith their baggage.

. . .Woaorablc JamesS. 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 placesof purchase. !ieeWaddell v. State, 37Tex. 354 (1872); _-- Christian v. State, 37Tex. 475 (1872). The legislature has modified the statutes on illegal carrying of guns. but the judicially created exception has continually bmcenrecognized. 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, 19Tex. App. 52 (1885). See 20Tex. 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 whopurchases a gun at the Port Arthur Civic Center. Whether an individual is a traveler is generally a question of fact. George v. State, 234S.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 Codeinapplicable 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 mayqualify 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. 1272Honorable JamesS. McGrath - Pzy;e4 (JM-286)

TOMGRPXN First Assistant Attoruey Generd. DAVIDR. RICHARDS Executive Assistant Attorney Gmeral RICRGILPIN Chalnnan, Opinion Committee Prepsred by Susan Garrison Assistant Attorney General APPROVED: OPINIONCOHMITTEE Rick Gilpin, Chairman Colin Carl Susan Garrison TonyGuillory JimMoellinger Jennifer Riggs Bruce Youngblood

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