DAN MORALES 

ATTORNEY GENERAL 

QBffice of tiy Elttornep @XneraI 

&date of IBexaS 

March 3,1995 

Honorable John B. Holmes, Jr. 

Harris County District Attorney 

201 Fannin, Suite 200 

Houston, Texas 77002-1901 

Opiion No. DM-327 

Be: Whether private security guards and 

off-duty peace officers are prohibited from 

cartying f%earms on the premises of 

racetracks by section 46.03 of the Penal 

code (RQaW 

Dear Mr. Holmes: 

You ask whether an off-duty peace officer is prohibited from carrying a 6rearm on 

the premises of a racetrack. Your specific query is as follows: 

May a peace officer, not working at the time for a govemmental 

entity, but employed in an off-duty status or “extra-job” capacity for 

the purposes of providing security to his off-duty employer, a 

racetrack, go [onto] the premises of a racetrack with a firearm? 

You also ask whether private security guards are prohibited from carrying firearms on the 

premises of racetracks. Since this office received your request, the revised Penal Code has 

gone into effect. See Act ofMay 29, 1993, 73d Leg., B.S., ch. 900, 5 1.01, 1993 Tex. 

Sess. Law Serv. 3589,3690-91. The provision that you asked about, former Penal Code 

section 46.04, has been amended and renumbered as section 46.03. .See id. Other 

provisions relevant to your query have also been amended and renumbered. 

Subsection (a) of section 46.02 of the Penal Code generally prohibits the carrying 

of a handgun. Subsection (b) of section 46.02 provides that 

[i]t is a defense to prosecution under this section that the actor 

was, at the time of the commission of the offense 

(5) a person 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 ofiker 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 
Honorable John B. Holmes, Jr. - Page 2 (DM-327) 

(6) a peace officer*, other than a person commissioned by the 

Texas State Board of Pharmacy. 

See Penal Code 5 46.02(b) (footnote added).’ 

Section 46.03 of the Penal Code, the particular statute about which you inquire, 

provides as follows: 

(a) A person commits an offense if, with a firearm.. he 

intentionally, knowingly, or recklesdy goes: 

(1) on the physical premises of a school, an educational 

institution, or a passenger transportation vehicle of a school or an 

educational institution, whether the school or educational institution 

is public or private, unless pursuant to written regulations or written 

authorization of the institution; 

(2) on the premises of a polling place on the day of an 

election or while early voting is in progress; 

(3) in any government court or offices utilized by the court, 

unless pursuant to written regulations or written authorization of the 

-; 

(4) ,on the premises of a racetrrck, or 

‘1Tbcpenalcodedcfincstbe~“~offim”innfacnato~2.l2ofthcodeof 

Ctimiml Pmcahuo. See Penal Code 8 l.O7(a)(36). Private security guards are not peace offcers witbin 

lhis definition. See Bohn v. State, 651 S.W.26 274,275~76 (Tex. App.-Dallas 1983, no writ) (discussing 

former Penal Code section l.O7(a)(25) which has been renumbeted as Penal Code section I.O7(a)(36)). 

‘Stewards and judges employed by the Texas Racing Cmnmission” wue “peace officers” under 

subsection (21) of article 2.12 until 1991 when the Sekwlty-secmld Legkkue replaced the words 

‘Jtcwardsalldjodges”with”invasligatnrs.” &?eAct0fMay22,1991,726Lcg.,RS., ch. 386,s 70.1991 

Tex. Sets. Law Se.rv. 1444, 1466.67. Prior to 1991, section 11.01 of the Texas Racing Act, V.T.C.S. art. 

197e,pmvidcdthattbcprimarydutyof’stcwardsaodjudges”wastocnforccoftheaa,andcontin~as 

follows: “Each steward or judge may exercktheautholityofa~ofliccrtocnforceanypenal 

provisionoflawwhilcinthe-dtbat~‘swlployment,ifthestcwardorjudgeisin,on,or 

ahoutanygreyhouodmciogorhorsemcingonelosumondcrthisAct.” Thislanguagewasdeletedin 1991 

alld @aced with the following: “The co nunission may commission as many investigators as the 

aMlmissiondaermines~tocaforathisAnaadtberulcroftbecommiFsiosl.... Each 

m~ssionediwesligatorhaJtbcpowcrs~apcaao5~,endshallmakeaad~abondas 

&by* commkion.” See id. $49, at 1460. 

ZThis n5ce amclmled that the former section 46.03 exception for peace officers exeqted them 

flunl prcsecdon all&r formet section 46.02 tqardless of what in the state they might have been or 

wbaha they were on or off duty. See Atlomey Gmerd Opinion IX4613 (1986). We do not consider 

here whether the rovisioo of section 46.02, oxwklating former sectioas 46.02 and 46.03, changes that 

cOnClUSiOn 

p. 1731 
Honorable John B. Holmes, Jr. - Page 3 (DM-327) 

(5) into a secured area of an airport. 

(b) It is a defense to prosecution under Subsections (a)(1)-(4) 

that the actor possessed a firearm while in the actual discharge of his 

o@cioI duties as apace o&?ker 

(f) An offense under this section is a third degree felony. 

~pmphases added.] 

This section permits peace officers to carry &arms on the premises of racetracks while in 

the actual discharge of their official duties. Investigators employed by the Texas Racing 

Commission are cIeariy peace officers under this provision. See note 1 supra. You are 

concerned, however, that this provision precludes private security guards and off-duty 

peace officers fkom carrying &arms on the premises of racetracks. 

The legislature added subsection (a)(4) regarding racetrack premises to former 

section 46.04, now renumbered as section 46.03, in 1989. See Act of May 27, 1989,71st 

kg., R.S., ch. 749, $2, 1989 Tex. Gen. Laws 3332. In 1991, the legislature amended 

subsection (b) of former section 46.04 to provide that the defense afforded to peace 

ofIicers while in the discharge of their actual duties applied to subsection (a)(4). See Act 

of May 18, 1991, 72d Leg., RS., ch. 386, 5 71, 1991 Tex. Sess. Law Serv. 1444, 1467; 

Act ofMay 18, 1991, 72d Leg., RS., ch. 433, Q 1, 1991 Tex. Sess. Law Serv. 1597. 

Based on the insertion of racetracks into former section 46.04 and a review of the 

legislative history and prior cases, you conclude that 

peace officers, while working at the time for a governmental entity, 

but employed in an off-duty status or “extra-job” capacity for the 

purposes of providing security to his off-duty employer, a racetrack, 

may not go [onto] the premises of a racetrack with a tirearm. 

You also conclude that private security guards are prohibited from canying 6re.arms on 

the premises of racetracks. 

We agree with your conclusion. First, we believe it is mandated by the statutory 

language. Subsection (b) of section 46.03 provides a defense for peace officers only while 

in the discharge of their official duties. To conclude that peace officers are excepted from 

section 46.03 when they are off-duty would be contrary to the unambiguous language of 

subsection (b). In addition, section 46.03 simply does not provide a defense for private 

security guards, and thus clearly prohibits private security guards from carrying thearms 

on the premises of a racetrack under any circumstances. Furthermore, to gratl the 

exception for private security guards and peace officers in section 46.02(h) onto section 

46.03 would clearly run counter to the legislature’s intent to treat the places listed in 

section 46.03 differently than all other places. Moreover, section 46.02(b) on its face 

operates to enumerate exceptions only to section 46.02(a). 

In Attorney General Opinion JM-613, this office considered the relationship 

between the exception for peace officemto the general misdemeanor offense for carrying 

p. 1732 
Honorable John B. Holmes, Jr. - Page 4 (nn-327) 

firearm set forth in former section 46.03, now section 46.02(b), and the defense for peace 

officers to the felony offense for carrying firearms in schools, polling places, and courts set 

forth in former section 46.04, now section 46.03. See Attorney General Opinion JM-613 

(1986) at 5. It stated as follows: “Jfthe legislature [in enacting former section 46.031 had 

intended peace officers to be protected from prosecution in other situations only when in 

the actual discharge of official duty, we believe it would have specified the circumstances, 

as it did in [former] section 46.04.” Id. Attorney General JM-613 further supports our 

conclusion that the defense to former section 46.04, now section 46.03, for peace officers 

in the discharge of their official duties is much more limited than the general exception for 

peace officers provided by former subsection (a)(6) of section 46.03, now section 

46.02(b)(6). 

Second, we have reviewed the legislative history of subsections (a)(4) and (b) of 

section 46.03,3 and we agree with your assessment that there is no evidence of legislative 

intent indicating that the legislature did not intend to preclude private security guards and 

offduty peace officers gem possessing handguns on the premises of racetracks. The bii 

analyses suggest that the legislature inserted subsection (a)(4) into former section 46.04. 

now section 46.03, in order to make the possession of a firearm on the premises of a 

racetrack a third degree felony. See House Comm. on Urban Atlhirs, Big Analysis, H.B. 

1293,714 Leg. (1989); Senate Comm. on Criminal Justice, Bii Analysis, H.B. 1293,71st 

Leg. (1989). The legislature does not appear to have considered how this amendment 

would affect racetmck securhy! We realize that the prohibition against the carrying of 

tirearms by private security guards and off-duty peace officers on the premises of 

racetracks may have been an unintended result of the amendment. There is nothing in the 

legislative history from which we could conclude that the legislature intended otherwi~e,~ 

).%?e &loose &mm on U&an Affairs, Bill Aaalysis, H.B. 1293, 71st Leg. (1989); Hearings on 

H.B. 1293 Befonz the Heasc Cennn. on Uman Aft& 7l.d Leg. (April 25, 1989) (tape available through 

HOIW Viden!Andio 8ervices Oft&); 8enatc Comm. on Criminal hutice, Biil An.@& H.B. 1293,71st 

Leg. (1989); HearinrJs on H.B. 1293 Before the Senate Comm. on Criminal Justice, 716 Leg (May 23, 

1989) (tape avaiI+lc tbrongh Scnalc Staff ,%-vices o&a); House Connn. on Urtraa Affairs, Bill 

Analysis, H.B. 2263.72d Leg. (1991); House Research Organization, Bill Analysis, H.B. 2263.72d Leg. 

(1991); House Comm. on Crhninal Jurispndcna, Bill Analysis, H.B. 44, 72d Leg. (1991); House 

Research Organization Bill Analysis, H.B. 44,72d Leg. (1991). 

‘lndaed, the le,gislatme ia 1989 did not make ewn the defense for peace officers while ia the 

discbarge of their official da&s applicable to the canyin of fixarms on the premises of mcetxks, see 

Acl nf May 27,1989,71st Leg., RS., cb. ‘749.8 2.1989 Tea. Gen. Laws 3332, and had to amand former 

~on46.04,wwscction46.03,in1991tosodo,srrActofMay18,1991,72dLcg.,RS.,ch.386,~71, 

1991 Tex. 8ess. Law 8etv. 1444, 1467; Act ofMay 18,1991,72d Leg., RS.. ch. 433,s 1, 1991 Tex. 8ess. 

Law sclv. 1597. 

5As nntcd abwc, in 1991, the legislatme revisited this issae and amended former section 46.04, 

mwastion46,03,tomaLcthcsubsection@)dcfmJeforpeaa~~whileintheactualdiachargcof 

their oflicial duties applicable to carrying firearms on the pmnisea of rac*radts. &!cnote4qwa. Itis 

nntable that wbem doing w the legislature did not amend the statute to permit prk’ate ssurity guards and 

cdTdutypeace&cerstecanytiwannsonthcprunisesof~. 

p. 1733 
Honorable JohnB. Holmes, Jr. - Page 5 (DM-327) 

however, especially in light of the unambiguous statutory language to the contrary. 

Furthermore, if we were to conclude that private security guards and off-duty peace 

officers are not prohibited from carrying firearms on the premises of racetracks, the logical 

result would be to permit them to carry tirearms on the other premises enumerated in 

section 46.03, i.e., schools, polling places, and courts, which the legislature obviously did 

not intend. 

For the foregoing reasons, we must abide by the plain and unambiguous meaning 

of the statute and conclude that private security guards and off-duty peace officers are 

prohibited f%om canying &arms on the premises of m&racks by section 46.03 of the 

Penal Code. It is not within the power of this office to read subsection (a)(4) out of 

section 46.03 or to broaden the statute’s very limited defense for peace officers in the 

actual discharge of their official duties. We urge the legislature to assess whether existing 

law permits adequate security for racetmcks. 

SUMMARY 

Private security guards and off-duty peace officers are prohibited 

from carrying firearms on the premises of raetracks by section 46.03 

of the Penal Code. Peace officers, including investigators employed 

by the TexaaRacing Commission, may carry firearms on the premises 

of racetracks while in the actual discharge of their ofiicial duties. See 

Penal Code $46.03(b); Code of Crim. Proc. art. 2.12(21). 

DAN MORALES 

Attorney General of Texas 

JORGE VEGA 

Fii Assistant Attorney General 

SARAH J. SHIRLEY 

Chair, Gpiion Committee 

Prepared by Mary R Grouter 

Assistant Attorney General 

p. 1734