March 12, 1975

The Honorable Joe Reswebsr County Attorney Harris County Courthouse Houston, Texas 77002 Dear 

### Mr. Resweber: Opinion No. H-549
Re: Authority ofPort of Houston Security 

### Offkern to carry firearms

You have requested our opinion 

### concerning whether 

### recurity officera employed by the Port ofHouston Authority, formerly the

### Harrie County Houston Ship Channel Navigation District, 

### may carry handguns while on or off duty and

### whether detention0 and arrests made by such security officers are valid and proper. Section 46.02 ofthe Penal Code makes it

### unlawful to carry a handgun. However, 

### section 46,03 render8 thio prohibition inapplicable to aperson:

(I)...in the actuai discharge ofhis official duties 

### a8ap&ace offtcer, amember ofthe armed forces or national guard, o,ra guard employed by a penal inetitutton; (2) onhis own premises or premises under hia control; (3). traveling,; or (4) engaging 

### inlawful hunting or fishing or other 

### lawful 8portbg activity. The first three 

### categories are essentially a restatement ofprior 

### law, See Practice Commentary to section 46. OS, Vernon’s Annotated Penal Code. - You have asked whether the security 

### officers are exempted by subsections (1) or (2),and if so towhat extent.

p.2466The Honorable Joe Reswebcr, page 2 (H-549)

The definition section of the Penal Code defines “peace officer” 

### as “a person so designated by the Code ofCriminal Procedure, 1965.” Penal Code $1.07(a)(25). However, we do not believe that this definition by reference is intended to repeal other statutes specifically authorizing or designating certain persons as peace officers. Article 2.12 ofthe Code of Criminal Procedure itself does not state that it is intended to so repeal such designations. The rule is well established that enactment ofa general law does not ordinarily operate as a repeal ofaparticular law by implication. 53 Tex. Jur. 2dStatutes $110, and cases cited therein. See Attorney General Opinion H-522 (1975). - In our opinion, where aperson is either designated as 

### or authorized to act as a peace officer by specific statute, he is exempted from the provisions of section 46.02 by section 46.0311). even though he is not listed in article 2.12. Section 60.077 ofthe Water Code, which deals with the powers of navigation districts, provides:

Inprosecutions involving the enforcement of the provisions of this subchapter or the enforcement of any ordinance, rule, or regulation ofthe district,. any sheriff, constable, or other duly conetituted peace officer of the State of Texas or any peace officer employed or appointed by the commission may make arrests, serve criminal warrants, subpoenas, or writs, and perform any other service or duty which may be performed by any sheriff, constable, or other duly constituted peace officer ofthe State of Texas in enforcing other laws ofthis state. Itis our opinion that this section empowers a navigation district to employ peace officers. Of course, any peace officer appointed by a district must satisfy the requirements ofarticle 4413(29aa). Section 6b 

### ofthat article, specifically requires the completion ofa basic course in law enforcement within one year ofappointment. Attorney Gsneral Opinions M-966 (1971), M-767 (1971). A peace officer appointed by a navigation district may therefore carry a handgun while “in the actual discharge ofhis official duties. ‘I Penal Code $46.030. In our opinion, going to and from the place ofperformance ofthese

p.2467The Honorable Joe Resweber. page 3 (I-I-549)

duties is a necessary incident of the “actua<discharge ofhis official duties.” Wallace v. Commonwealth, 246 S.W. 466 (Ky.App. 1923); 94 C.J.S. Weapons, 59at 496. A peace officer may carry hie handgun to and from work so long as the route followed is practical. See Davis v. State, 122 S.W. 2d 635 (Tex. Grim. App. 1938). However, sztion 46.03 (1) does notpermit apeace officer to carry a handgun while off duty. Gandara V. State, 252 S.W. 166 (Tex. Grim. App. 1923); Jones V. State, 238 S.W. 661 (Tex. Crim. App. 1922). Those security officers who have notbeen appointed peace officers or who have notmet the requirements ofarticle 4413(29aa) may carry a handgun while onpremises under their control. Penal Code §46.03(2); Attorney General Opinion H-185 (1973). InH-185 we stated that “a security guard may carry ahandgun while onhis employer’s premises. ” Implicit within this authorization is a requirement that the security officer be on duty, for otherwise the premises are notunder his control. See Robison v. State, 280 S.W. 776 (Tex. Crim. App. 1926). In addition, since&is exception deals with “premises, ” it does not authorize the transporting ofahandgun to and from work, and such habitual transportation ofahandgun ia prohibited under the case law. Cortemeglia V. State, 505 S.W. 2d 296 (Tex. Crim. App. 1974); Davis v, State, 122S.W. 2d 635 (Tex. Crim. App. 1938). Your final question concerns the validity ofdetentions and arrests made by the security officers, Where a security officer has been appointed, a peace officer he is empowered tomake arrests. Code Crim. Proc., ch. 14. In addition, section 60.077 ofthe Water Code expresely empowers peace officers appointed by a navigation district to make arrests. See Code Crim. Proc. - art. 14.01(a) (in regard to the authority ofpersons who are notpeace officers to make arrests. ) SUMMARY

The Port of Houston Authority may appoint and employ peace officers and such officers may carry ahandgun while in the actual discharge oftheir duties.

p. 2468The Honorable Joe Resweber, page 4 **(H-549)**

Security officers who are notpeace officers may 

### carry ahandgun while on duty on the premises ofthe Authority. Authority peace officers can make valid arreatr. Very truly yours, 

# c/ Attorney General of 

### Texar
APPROVED:

DAVID M. KENDALL, Finst Assistant

?. ROBERT HEATH. Chairman Opinion **Committee**

p. 2469