DAN MORALES

ATTORNEY GENERAL 

# QBffice

oftiy 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; orHonorable 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) ,onthepremises ofa racetrrck, or

‘1Tbcpenalcodedcfincstbe~“~offim”innfacnato~2.l2ofthcodeof Ctimiml Pmcahuo. See Penal Code8 l.O7(a)(36).Private security guards arenotpeaceoffcers witbin lhis definition. SeeBohn v. State, 651 S.W.26274,275~76 (Tex.App.-Dallas 1983,no writ)(discussing former PenalCodesectionl.O7(a)(25) whichhasbeenrenumbeted asPenalCodesectionI.O7(a)(36)).

‘Stewardsandjudgesemployed bythe TexasRacingCmnmission” wue “peaceofficers”under subsection (21) of article2.12 until 1991 when the Sekwlty-secmld Legkkue replacedthe words
‘Jtcwardsalldjodges”with”invasligatnrs.” &?eAct0fMay22,1991,726Lcg.,RS., ch. 386,s 70.1991 Tex. Sets. LawSe.rv.

1444, 1466.67. Prior

to 1991,section11.01oftheTexasRacingAct,V.T.C.S.art. 197e,pmvidcdthattbcprimarydutyof’stcwardsaodjudges”wastocnforccoftheaa,andcontin~as follows: “Each stewardorjudge may exercktheautholityofa~ofliccrtocnforceanypenal provisionoflawwhilcinthe-dtbat~‘swlployment,ifthestcwardorjudgeisin,on,or ahoutanygreyhouodmciogorhorsemcingonelosumondcrthisAct.” Thislanguagewasdeletedin 1991 alld @aced with the following: “The co nunission may commission as many investigatorsas the aMlmissiondaermines~tocaforathisAnaadtberulcroftbecommiFsiosl.... Each m~ssionediwesligatorhaJtbcpowcrs~apcaao5~,endshallmakeaad~abondas &by* commkion.” See id. $49, at 1460.
ZThis n5ce amclmledthattheformer section46.03 exception

forpeaceofficersexeqted them flunl prcsecdon all&r formetsection46.02 tqardless of what in the statethey might have been or wbaha theywereon or off duty. See AtlomeyGmerd OpinionIX4613 (1986). We do not consider herewhetherthe rovisiooof section46.02, oxwklating former

sectioas46.02 and46.03, changesthat cOnClUSiOn

p. 1731Honorable 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 ofhis 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. 1732Honorable 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 GeneralJM-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&anAffairs,

Bill Aaalysis,

H.B. 1293,

71stLeg.(1989);

Hearingson H.B. 1293 Befonz theHeascCennn.onUmanAft& 7l.dLeg.(April25, 1989) (tapeavailablethrough HOIW Viden!Andio

8ervices Oft&); 8enatcComm.on Criminalhutice, Biil An.@& H.B. 1293,71st Leg. (1989);HearinrJs

on H.B. 1293

Before the SenateComm.

on CriminalJustice,

716 Leg (May23, 1989) (tape avaiI+lc tbrongh Scnalc Staff ,%-vices o&a); HouseConnn. on UrtraaAffairs,Bill Analysis,H.B. 2263.72d Leg. (1991);HouseResearch Organization,

Bill Analysis,H.B. 2263.72d Leg. (1991); House Comm. on Crhninal Jurispndcna, Bill Analysis, H.B. 44, 72d Leg. (1991); House Research OrganizationBill Analysis,H.B.44,72d Leg.(1991).

‘lndaed, the le,gislatme

ia 1989 did not makeewn the defenseforpeaceofficerswhile ia the discbarge

of theirofficialda&s applicable tothe canyin of fixarms on thepremisesof mcetxks, see AclnfMay27,1989,71st Leg.,RS., cb.‘749.8 2.1989 Tea. Gen.Laws3332,andhadto amandformer ~on46.04,wwscction46.03,in1991tosodo,srrActofMay18,1991,72dLcg.,RS.,ch.386,~71, 1991Tex.8ess.

Law8etv. 1444,1467;

ActofMay 18,1991,72dLeg.,RS.. ch.433,s 1, 1991 Tex.8ess. Lawsclv. 1597.

5As nntcdabwc, in 1991,thelegislatmerevisited this issae and amended

formersection46.04, mwastion46,03,tomaLcthcsubsection@)dcfmJeforpeaa~~whileintheactualdiachargcof theiroflicial dutiesapplicable tocarrying

firearms on thepmnisea ofrac*radts. &!cnote4qwa. Itis nntable thatwbem

doingw thelegislature

didnotamendthe statute topermit prk’ate ssurity guards

and cdTdutypeace&cerstecanytiwannsonthcprunisesof~.

p. 1733Honorable 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%omcanying &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

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