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                                         December      19, 1973



The Honorable Thomas W. Brown, Director                       Opinion No.        H-185
Texas Board of Private Investigators and
     Private Security Agencies                                Re:      Meaning of “premises
959 Reinli Street, Suite 201                                           under his control” as
Austin,  Texas 78751                                                   used in § 46.03(Z)  of 1973
                                                                       amendments     to Texas
Dear   Mr.   Brown:                                                    Penal Code

        AS presently enacted, Article 483 of Vernon’s      Texas Penal Code makes
it unlawful for any person to carry on or about his person certain specified
weapons including pistols.      Article 484 excepts from its provisions,    among
others,   a”special  policeman who receives     a compensation   of forty dollars or
more per month for his services        as such officer, and who is appointed in
conformity    with the statutes authorizing   such appointment.   . . . I’.

        The new Penal Code (Acts 1973, 63rd Leg.,                     ch. 399, p. 883) to be
effective January 1, 1974, contains,   in its $46.02                 the general prohibition
against “intentionally, knowingly,   or recklessly”                  carrying a handgun upon
one’s person.

       Section   46.03,    the equimlent        of Article    484,    will be:

                    “The provisions            of Section    46.02    of this code do not
              apply to a person:

                    ” (1) in the actual discharge of his official duties as a
              peace officer,   a member of the armed forces or national
              guard, or a guard employed by a penal institution;

                      “(2) on his own premises          or premises       under his control;

                      “(3) traveling;    or




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The Honorable     Thomas     W.   Brown,    page 2   (U-185)




                  “(4) engaging in lawful hunting or fishing     or
             other lawful sporting activity.”

      Your   letter   to us states:

                    “Private Guards that are employees         of a licensee
             licensed pursuant to the provisions      of Article 4413 (29bb)
             are now permitted      to carry firearms    upon the issuance
             of a special police commission      issued pursuant to the
             provisions   of Article 4413(29bb) Section 14(c) and Article
             484 of the Texas Penal Code.

                    “Upon the effective date of the new Penal Code
             Senate Bill 34, employees   of licensees  can no longer
             be issued special police commissions     as outlined in the
             preceding paragraph. “

       We agree with your conclusion that, after the new Penal Code goes into
effect on January 1, 1974, because of the omission from § 46.03 of reference
to special police officers, employees  of your licensees will not be able to carry
handguns pursuant to any commission    as special police officers.

      The question     you have asked is:

                    “What constitutes    ‘premises  under his control’ as
             used in Section 46.03(2)     of Senate Bill 34? The purpose
             of this request is to enable the Texas Board of Private
             Investigators    and Private Security Agencies   to carry out
             its responsibility   to revoke the license of any licensee
             who unlawfully carries a prohibited weapon. ”

       Section 46.03 also exempts from the prohibitions     of $46.02    of the new
Penal Code a person “on his own premises       or premises   under his control. ”
The comparable     language in Article 484 is that the prohibition of Article 483
“shall not apply . . . to the carrying of arms on one’s own premises         or place
of business.   . . .‘I There have been a number of decisions      construing that
language and it is held that it is not necessary  that thepremises     be owned to
qualify as a place of business.    Smith v. Smith, 100 S. W. 155 (Tex. Crim.1907);




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The Honorable   Thomas   W.   Brown,   page 3   (H-185)




Gibbs v. State, 156 S. W. 687 (Tex. Crim.     1913). On the other hand, a
mere permissive     right to use property for a particular purpose may be
insufficient to constitute one’s own premises    or place of business within
the meaning of Article 484.     Soloskv V. State, 236 S. W. 742 (Tex. Grim.
1922); Whiteside v. State> 58 S. W. 1016 (Tex. Crim.     1900).

       As we pointed out in Attorney General Opinion H-22,      to confer the
right to carry prohibited weapons,     there must be lawful possession   and
control,  even under the old law.   See Mireles   v. State, 192 S. W. 241(Tex.
Grim. 1917); Fields v. State, 166 S. W. 1166 (Tex. Crim.     1914). Similarly,
under that statute it was held that the exception applied to employees      of the
owner of the business.    Thus in Poston v. State, 104 S. W. 2d 516 (Tex. Grim.
1937) the court said that if the appellant was employed to work in two places
of business he would not have been violating the law to have had a gun on his
person at either of them.

      In Merchants   and Manufacturers’ Lloyds’ Ins. Exch.    et al,.,   v. Southern
Trading                  205 S. W. 352 (Tex. Civ.App., Ft.    Worth,     1918), the
Court stated the following:

            “The term ‘premises’    has attached to it various meanings,
            owing to the connection in which it is used, but, generally
            speaking,  the term includes not only buildings, but the lot
            or land upon which the same are situated. ”

      Therefore,   in our opinion,the~ term “premisea”    means   a fixed piece   of
real estate and the building located thereon.

      In Board of Insurance Commissioners    v. Duncan,      174 S. W.   2d 326
(Tex. Civ. App., Amarillo,  1943). the Court stated:

                   “39 Tex. Jur. 196, par. 104. says:    ‘It is proper
            and sometimes   necessary  to consult a dictionary to
            ascertain  the meaning to be attached to a word. ’

                   “The same text and volume,  page 197, par. 105,
            says : ‘One of the primary and settled rules of construction
            is that words in common use, when contained in a statute,




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The Honorable     Thomas   W.   Brown,    page 4    (H-185)




              will be read according to their natural,   ordinary
              and proper meaning unless a contrary intention is
              clearly apparent from the context or unless there is
              some necessity,    in a particular case, for adopting
              a different construction.  ’ These statements   from the
              text are supported by numerous authorities.

                     “Webster’s  New International  Dictionary defines
              the word ‘control’ as follows:   ‘To exercise  restraint
              or deciding influence over; to dominate: regulate;    to
              hold from action: to curb; subject or overpower. ’

                     “Words and Phrases,   Perm.   Ed.,  vol. 9, page
              434, says:   ‘To “control” means to exercis:e restraint
              or deciding influence over; to dominate; regulate: to
              hold from action; to curb; subject or overpower. ’

                    “So far as we are able to find the word ‘control’
              has no legal or technical meaning distinct from that given
              in his usual usage. ”

       Also   see Carter v. Carter,      359 S. W. 2d 184 (Tex. Civ.App.,    Waco,
1962);State   v. Camper.    261 S.W.     2d 465 (Tex. Civ.App.,   Dallas.   1953).

       In Evary v. The E. F. Construction    Co.,  236 A. 2d 328 (Corm. 1967),
the Court was presented with the question of what was the meaning of “premises
under his control. ” In this action by an injured employee for damages based on
alleged negligence the Court noted that an averment that the Defendant had
“control”   of premises called for a legal conclusion and the bare assertion   does
not justify conclusion that no fact issue exists.

       The phrase “premises  under his control” implies some definite place,
and there is no control where the premises  are a highway.  Bates v. Connecticut
Power Co. 33 A. 2d 342 (Conn. 1943).   Evary v. The E. F. Construction  Co.,
supra.

        It is our opinion from the foregoing authorities       that a security guard may
carry   a handgun while on his employer’s    premises.        In the case of an employee




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    The Honorable   Thomas   W.   Brown,     page 5   (H-185)




    of a private security agency,    whose employer contracts with third persons
    to guard their premises,    the guard while on the premises     of those third
    persons may be on “premises       under his control” but whether or not he is
    will be a fact question in each instance.    We do not believe that the statute
    will require exclusive   control in the sense that there could only be one per-
    son in control of premises.     We would feel it sufficient if the person in
    question was authorized to direct the conduct of other persons on the premises.

           We do not believe that “premises”    can be extended to include, for
    example,   armored   vehicles or the streets surrounding premises    and in this
    latter connection we call your attention to Wilson v. State, 418 S. W. 2d 687
    (Tex. Crim.   1967) where the court said:

                       “We are unable to agree that a tenant who carries
                a pistol upon the grass,   sidewalks,  driveway,  and
                parking lot jointly used by all tenants of a large apart-
                ment complex,     such as the one described herein,   is on
                ‘one’s own premises,    ’ withih the meaning of the statute.   ”

            From the foregoing we conclude that, to meet the test of “premises
    underhis control,” the location where the person intends to carry a handgun
    must:    (a) be real property or a building upon it and (b) be owned by the
    subject or his employer or (c) subject to the cmtrol    of the subject or his
    employer in some special capacity.       While control need not be exclusive  of
    others,   it must be a real right to exercise  some dominion over the premises.
    Whether or not these facts exist will usually be a question of fact to be deter-
    mined in each case.

           Under one test we believe that employees    of a security service employed
    to guard premises   of another,   so long as they have the right to “control” the
    premises,   will be authorized to carry handguns.     On the other hand, an em-
    ployee of such a service,    operating from an armored vehicle,    which cannot
    qualify as “premises”   cannot qualify.

                                      SUMMARY

                        In order to be entitled to carry a handgun under
                 $46.03(2)   of the 1973 Penal Code on “premises   under




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The Honorable   Thomas   W.   Brown,    page 6    (H-185)




            his control, ” the person in question must actually
            have the right to exercise  some control over the
            conduct of other persons upon the premises    although
            his control need not be exclusive.   Whether or not
            such a right to control exists is a question of fact.

                                       Very   truly yours,




                                       JOHN L. HILL
                                ”      Attorney General      of Texas

APPROVED:




DAVID M. KENDALL,        Chairman
Opinion Committee




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