                                                                   -_




             OFFICE   OF THE   AT~dR~iiliY ~GENERAL OF. TEXAS
                                  AUSTlN
GROVER     SELLERS
ATTORNEY   GLNLRAL
    5




   Honorable perry     L. fonee
   county Attornry
~..warie   county
   Austin, TeXtW
  Dear




                                                   y0Ur -letter or r8-
  cent data requea                                  to savaral ques-
  tiolia,rhioh PR)


                                             ptlona ~4~ptivi&38,
                                            olr ‘483 shall not
                                            oonstable, or SQPS-
                                        61 a OOlapMsdtiOA Or
                                       r month ror hia aenloes
                                        f# appOfAtOd in OOAfOrm-
                               tutee au#iho+ing   woh appoint-
                               *spsalal  COAstable* or r4eQutJ
                               is pafd jiC.00per. Aght by tm
                          keepfag order in h night olut,
                           nothing by the ootmty, ba legal-
           ly SAtitkid to oarry a' pistol, a8 one oomiD8
           within the quoted eXc9ptioA?
                2. Eay suoh *special constable-, or *deputy
           constable* be lawfully paid by a private ‘indi-
           vidual,’or must he receive his oom?ensation as
           such oifioer from the oouiztyor tbrougfifees of
           orfice?
                                                 .
‘.

     Honorable Parry L. JOANN, Paw. 8



               5.  II it legal for a de uty oonetablr to ao-
          oept money for keeping order f A a night olub dth-
          Cgt tUrA.bg said money into the GouXty Treasury,
          even though he giver the raid night olub more of
          blr tlms and attention than is required in the
          00UrBa Of hlg dutier a6 deputy constable, ard al-
          though he ia paid nothf~g by the oouaty?

                4. Otiy ona dapputyoonstable in Trarir
          aountp 14 reoelring  a salary from the oounty ror
          hlr remloe8 aa suoh ofrloer.     xmerer   four   ?r e-
          oial deputy ooAstablesa have been appointed a f+
          wove&     .by the Oomniadonerr*  court, in’aooord-
          am* with.Artiole 6879a, T@rnont8 Annotatd Uiril
          Statutea, said deputy ooonatablaereoefring     no
          salary, although they do reoeits atore than forty
          dollars per month from private iAdirldual.8to
          keep order in night olubs. Are these *6Jeolal
          deput oonstablesn legally permitted to oarry
          Plato r8, under Article 484, supra?

                5.  Assting   that operators of a drug StOra,
          groowy store or other burrfaeoemust take large
          suas of aoney to the bank, and a6 a praotioal mat-
          ter the sheritr~r    department nor the polioe dr-
          paz&eAt OaAAot rovids aA armed eaoort, MY tuoh
          oparatorr or the!r eaployeeeslegally am them-
          soltee with pietola   for the purpose of prqteotiw
          the money while it is so oonveyed to the bank?

               6. Article 48s of ,the Peaal Code OOAdetDnS
          th6 aarryiing0r arms in oertaln aeserablise. I8
          a'aight olub where,people assemble to drink beer,
                        daAoe, suoh a plaoe ot assembly or
          aAd 8onti3tlmes
          amusement as 'tooome Wer   the provisions of suoh
          AlMole?

               7. KOUld the type oi offioer   referred to iA
          queatlon 1, above, ooffie
                                  within the provisions Of
          Artiole 485 ii he carried a pistol in a llrghtolub
          suah as is desoribed IA questiOA 61

               8. Could even the Owner OS suoh.tight olub,
          a8 desoribed in question 6 ,legally arm himself
          or ..~
             an agent to keep order iA suoh 'ep assembly?
                                             ]
 Honorable Parry L. Jonea, Page 3


          - 9. 18 a hotel lobby a plaoa of assembly aa
      oontamplated by Art1010 485, Penal coda?

          10. It the aAnwar to question 9 ia in the
      aiflrrnatlra, oould the hot.1 management legal1
      an a hotel deteotim    to keep order In ruoh loi;
                                                      by?

            Your iiret quertloa lnrolve8 s8varal.oonaIdarations.
 In the flrat  plaoe you IWfOr to a rspeolal OOArtablow. What
 18 a lrpeoial oonrtablam? *a statute raiarra to (Art. 484,
 Penal Bode) 8~aoIiIrr a *aDeolal polloeaan~ ~bue "daputr OOA- V~ ti?)
 #tablo*.

           Mext, 10 note tb language of the Artlolr under
 ooAsid8rat~oA. Aa OOdiiha and AOw EitOAdiAgUpOA Our Stat-
 ute books as Article rL84,Penal Coda, the partinant provi-
 alons read a8 r0110w8:

            npho preceding artiole shall not a ply to
      .. .. .. any        ofrloar IA the aotual $P soharge
                   eaoe ofrloer
              Offf olal duty, nor to the oarrying or
      OS No off                                                 Of arms
      On one'9 own pramI                or plaoa of bualmss,
                                                       bualmas.   nor
      to peT;~'I~f
      t0 pa~;i;tf tri:;;;z,
                   "?;;a;~,             AOr
                                        nor-toto any deputy oonatable,
                                                             ooiMable,
      or ag        PO                who reoelvae
                                            reoeitae a oompansatlon
      of forty aollara or more par month Sor hi8 88x-v-
      'ioes at3 euoh ofrloer, aAd who Is appointaa.in oon-
      'Iormlty with the statute8               authorlzlng Buoh appolnx-
      mant; l . .”    ( El!lp na a lc l    Our 8. )



           Prior to the oodlrioatlon of 1935, the above artl-
 018 war known aa Artiole 476 or the Penal Codr of 1911; It
 was amended by the Fourth Called Sessi~n‘Of the Thirty-fifth
 Leglalaturb (Acts 1918, Fourth Called Sass. C. 91, 31; 19
 0. L. 1941, and a8 than raanaotad read a8 iollowe:
            *The preoadlng artiola shall AOt apply to
             any paaoe ofrloar In the actual discharge
      &*hia orflolal duty, nor to tha aarrying of anus
      OA OA8'8 Own pr8miS9s Or place Of bUsIAaS8, nor
      to persona travalllng provided. this arcaptlon
      ahall not apply to any deputy constable, or epe-
      olal policeman who does not racalva a OOmpansa-
      %lon of forty dollars or more per month i'or his
      earvloas aa ouch officer, and who la not appocnted
      ‘in OOArOrmity wlth tha statutes of this Stat8 au-
      thorlzlng such appolntmaat; . . .v (Emphasis ours.)




I.:,:
    Honorable Perry L, Jones, Page 4


               As reoodlfled in 19e5, and an it stand6 today, does
    the statute require & deputy aonsteble, in order to oome wlth-
    in the exoeption, t0 *reoelve a oompsnsatlon of forty dollars
    or more per aonth for hi8 servl~ea?~
              Another lnoldental quretlon oonoerns the authority
    o f a privateo itizento e& p lo y
                                    eith e ra lapeoial* or a *de-
    puty ooastablea to keep order la a nlght olub, and to pay the
    ma of $4.00 per night (or any sum) ror suoh re~loee.
              The only referrnoes we find in the statute8 to as e-
    oial oonstablerw, ae suoh, are round in Artloles 108 and 1I&-
    -e     Oode of Criminal Prooedure. They may be appointed by
    any magistrate, only to *suppress rlotr, unlawful aesemblier
    and other disturbances at eleotions*; when duly appointed in
    aooordance with th4 provlslona of the olted artloles of the
    Code, they ham all the power6 Of peaoe Oifioeks generally,
    for the limited purpose tor whloh they are appointed. Con-
    zales v. state, 55 Tex. Cr. R. 430, 110 S. 8’.740.

               We find no allusion in the Codes to the term *e
    olal deputp oonstable. The Leglelature has attempted to
      thorize *apeoial-deguty aherlrrsr In qertaln counties (Art.
    iii121-3, 12 ‘Vernon@e Annotated cfvll Statutea)t but we rlntl
    no leglelative eftort to orsate or authorize suoh apeoial
I   otrloers to serve with or under oonstables,
              We do know that there is provlslon ror the deslg-
    nation or persons other than regular oitloere to serve pro-
    oess and warrants or arrest in certain oases of emergenoy
                                and on at leaat one oooaslon the
    (Arts. 231, 888, c. c...;p..);
    person 60 named was denominated a *deputy oonstablen (Ste-
    phenson V. State, 93 Tex.’Cr. R. 578, 249 9, W, 492). The
    cited case holds that gftlzen$IappOint8a under these statutes
    oan lawfully oarry a pistol while 80 engaged. Bowever, we
    do not thlnk these statutes are pertinent to your problem.
              ArtiOh  484, supra, speoiflea tba exenptlon rrom
    prosecution ior unlawfully boarlng arms, lnsotar as the ot-
    ricer here alluded to 1s oonoerned, to a *deputy oanatable”.
    Irrespective oi the applicability of the clause, *who ie ap-
    pointed in conformity with the statutes authorizing suoh ap-
    pointment*, as contained in such statute, we think such would
    have been contemplated. Xn other words, where the artlole
    uses the tern *deputy constablee, one who h.asbeen duly and
    legally appolnted, qualified and is aotlng as suoh, is oon-
    tesplated, and is intended to have the benefit of the law.
                                                                         45
       Honorable Ferry Lo Joneg, Page, S’   ..,A
                                              _.:


                  ALthough Article 484 Penal code, 1925, supra,
       rrtanaingalone, may be rusoeptfble ot construotlon as to
       whether- the undereoored portion with referenoe to reoei~ing
       compensation ol forty dollars or more.per month ir applloa-
       ble to a deputy oonstable, we think the 1eg;islatlvehistory
       of the act olearly indloater that it 1s. Notesthe under-
       soared portloa or the amendment 0r 1918, suqra. See Stephen-
       son vr State, 93 Tex. Or; R. 570 249 5. WI 492, a~pra, where-
       in it is ‘pointed out that the evident purpoee oi the amendment
       was to dlsoourage a5l prevent the useless add proalrououa
       oarrylng of aims under the guleo of speoolaldeputies. Also,
       ;;in~~~O-b372, Attorney deneral of TexaC, approved~January
         1      l        j,
                             ‘...
                               “:

                 we hereby~‘reiterateth’elanguage of our raid Opln-
       ion O-6372:
                 *The provisions contained in Arti    484,
            Vernon’s Annotated Penal C~ode,regarding compen-
            aatlon or )40.00, or more, per month, is appll-
            oable to deputy oonetablea and speolal po$ioemen,
            . . .*
                 In our Opinion No. O-773, to which you referred in
       your letter submlttlng the above questione, It Is stated1

                 “. . . it la the opinion ot this department
            that a dep’utysherlit who preserves the peaoe at
            a publio oelebratlon and danoe would be .aoting
            within the scope of hle ottioial duties and would
            not be entitled to receive extra aompeneation from
            the oounty or iron thtra pereona, a different, or
            a greater or less oompensa>lon ror his ofrloial
            servloes than that whloh has been presorlbed by
            law.*
                  In the ease of the question as submitted by YOU,
       we express our opinion that either a *apeolal* or ndeputyW
       constable, oonoedlng his appointment to be legal, would be
       charged with the oi’flclalduty to preserve tinepeace, ii
       Freseot 11:a night club, and as such officer, he uould not
       be authorized to receive .,;4.00 a riight, nor any otbr sum
       as compensation from an individual “for keeping order in a
       Light club”. 34 Tex.    Jur. 534, 1117, and casea olted. The
       compensation of public officers must be fixed by the Legls-
       izture or by some governi% body exptesely authorized so to
            First Saptist Church v. City of acrt S’orth, (Tex. Come.
       $)    26 2, :;, (2d) 196, afflroing judgment (Tex. Clr. App.)

,,a”
          3. -2, (26) 130.   I



1
                                                                  ~,’ 46

Honorable perry L. hones, page 6


           In view of our erpreseioru above, wfilshwe bellerr
are amply supported by the authorities, ou are aahba that
it 18 -our opinion that a nepeoial oonsta1:lea or la ep uty
                                                          eoA-
stable* keeping order in a night olub urder the oiroumstanoes
recited ia your firat uestion, a8 a mtter or law,     would not
oome within the q&ept Pon8 and exemptions preearibed by Art-
iale 484, Eenal Q&W    Bupra, ‘should he be prodeeded against
for unlawfully’o$Zrppingthe aI& prohfbltod by Artlolr 483,
Penal Code;       ‘.
           Y0Ur seOOnd qUS8tiOA has been partially’OOhelaerea
above, For ofrioial duties,ruoh oMioer would not.be OP.
titled to receive aAy comQonsatfoA other than that,whleh has
beeA protiaea by law. 84 Ter. Jurr 534, mpra.      pr any
other duties, AOt ooming rithtn the soope of a p-04 ofiieer,
oi oourse, thp oorapensationwould be a matter 0r privatr OOA-
traot. But rhen a disturbanoe of the peaoe beoame imminent
or aotual, if’.an ortioer, one la oharged immediately with a
apeoifio duty to preserve the peaoq. See Artlo      37, Code
of Criminal Frooedure, 1925. Xhile it is tiue that ArtiOle
38, c. c. P., in derlnlng peso8 oiri0ers statsa that   a OOA-
.atable is suoh and’omits any referenoe to a deput eonatable,
in ‘#&laon V. State, 117 Tex, Or. H. 63, 38 9. B. T26) 733,
it 1s pointed out that @iale     36 waa enaoted lor\gprior to
tha time that provlelon was made tor the appolptmant of a0-
puty oonstabler, and the ease oontalne this st,atetintl
           1. . . We think it was the intention or the
     Legislature iA providing for the appoidtment of
     deputy oonstables to impose upon suoh Ofricer
     ths duties required or peace officers. ft each
     were not the oaae, the oitil statutes to tiloh
     referenoe has been made are without eifioaor.
          .* (ReterrlAg to the statutes providing ior
     &uty    oonstabler.)

            Your third questlon le also partially covered by
the dl ecusdon   above.
          However, merely because one 1s a deputy constable,
he would not be re-,llired
                         to give all of his tine to the duties
or the ofrice which he holds. In our Rplnlon No. O-5091 it
was held that a oofietiblaon a salary basis could draw his
Salary as constable,;although he was also employed by a Rail-
road as a trainman. ‘It is well known that many peace offioers,
eepaolally precinct ofricere, must eutiplemanttheir offlola].
honorable p*rrp 1. Tonea, Pa&‘9


lAoome8 with earnLAg derlrea from non-governaaeatalaotlvl-’
tieo, 4116 80 10% a8 the hold themselves available at all
tlmeer for whatever otiioIal dutisr that mi ht.oome up, r8
8ee DO legal obstaoler to prevent their a0 & ~g 60, pr0eaea
suoh employMAt does Aot antail aotlvitier inooasistent with
theit offioial dutl68.   xA OSOO Oi AeeleOt Of OffiOiai     duty,
the law provides a remedy. se Title 100, Revlsod 01~11
statute8 ~r’iwas, 192s; l  0ffidert--~eAoval or*, 8.Aa ease-
oially hrtiole8 S970; b9-73,et 8~3~
          AS Jour question is stated, v~ do not believe the
deputy ooA0table 00ua   legally be paid by private inairiaualr
             order iti~ralght  olubv. xi. a8 already 8tated
            eputy ~eonstablr ma8 pmseat 111a atLight olub where
a dli&rbanoe aotually OOb~tieil or w&8 i~$If@fag he~~d~l4
have dAjOiJ@a on him byelaw a.*fear and ilirtilwt iutf t8 sot
in hi8 Official Oairacity‘t0 preserve the peaOOr If the OOULL-
ty of hia appolntmeat, -and wherein the night olub lo rltuated,
payr it8 preotnot of’rioerson a salary basis, suoh beputy
rould be bound, IA event 0s arreat aa eoAvlotioA 0s any of-
fender, to collect the rtatutory fees for hir aervioe8, from
the defeodaat, and through his prinoipal, t& constable, to
remit said ieet# to the Ofricerr~ Salary yund of the oouaty.
If the oounty hapkened to be paying its preoinot orrioera ,on
A tee basis, the prinoipal, Constable, would be sntltle4 to
the fee8, subjeot to aodounting at the 8na or the year.      In *
Aeither event would the operator at the Aight 01~8 be liable
for tb8 fee (unlem he happened to be the ooavioteb aerenaant),
nor ooula the orrioera, or the ooucty, prooeed against him
to oolleot it.
          1f the OOUAty pays it8 preolnot orrtaers OA r 8al-
ary basis and the oommisaiollbro* court authorizer the appoint-
ment and aooepta the servioeu of a deputy oonstabla, and flxe8
no salary ror auoh otrloer, he ie not legally entitled to
look to private souroes for oompensatiod for periorming   his
otriolal duties. The zuthod of a polntment e ml the ooapensa-
tion, if any, to be pala auoh offE oera la fixed in .Wtioles
3902 and BBWa, Varl;on*s ?&notated Civil Statutes of Texas.         ‘
Xith reference to such aalarles, it la noted that the law
~ovides a mximm    or *oeilingn bayor&d+.vhfoha oollabgor pre-
oinot ofricer may net ~50,but d&s not presorlbe    a rninlm~~~
or ~rloorv.
           It, for performing ah offioial duty, the deputy
 constable does oolleiot compensation rros, a private source,
Ronorablr Perry L. Joma,      Page 8


ruch aa a night olub operator, he Is doing that whloh Is um
authorlze?land Illegal, but whatever may be the outoome of
any proceedings brought against him for suah aonduot, the
oounty cannot oollsot the money and therefore the offioer
oonoerned aould noC be oompelled to “turn said mouey into
the Oounty Treasu+.
          YIth refersnoe te your fourth questloo, we again
note the expression or term aa eoial de uty oonatablea~.
see ow diaouesion herelnabov8-Tal    thL
          A@ the question is stated, we express the oplnlon
that the pUQO4ted OfiiOtW0 in qUfJ8tiOfIa0 ~0% OOIbIO
                                                    Within
the forty dollar (#40.00) ooupenaation exemption, Thir for
the reason* also dlaouased above, with rererenoe to prlv6te
employnent 40 perform offioial duty.
          It will not be Ino&bent on,you, as oouaty attorney,
to negative or otherwise antlolpate defenses, but we feel it
proper in thle oonheotion to rerer you to the line of case.8
be.aringon the defense that the aoouaed believed or had rea-
son to believe that he was an oftiaer and had the rfght to
carry a pistol. gee ior example, the Oases of Lyle T* State,
21 Tex. cr. R. 153, 17 3. iV.4251 Cferoll  VI Sate, Terr Cr.
App., 57 3. V. 94; Blair v. State, 26 Tex. Or. x* 387, 9 3. w,
890 and Barnett v. State, 89 Texr Cr. RI 48 229 2. We 619.
However, a mistake of law Is no defe1188,ad in-oases whiah
we feel more almllar to the one0 of whloh you Inquire, appll-
oatlon ot the aorreot prlnolple will be found in fohnson vb
Sate, 73 Tex. Cr. W. 133, 164 3. V. 833, Patton v. 3tate,
61 ~61s.cr. R. 352, 135 9. #,- 556; Ransom 'I.State, 73 Tax.
Cr. R. 442, I.653. s, 932 and Gandara V. state, 94 Tex, Cr.
R. 535, 252 3. 6. 160.
             In view of the last olted caae~, we are lnallhed ta
the view that in a case suoh as you mention, say such defense,
if interposed, would be held inagplioable and inadzlssible
a8 a Viatake     of lnww.

          you fifth question is answered in the ne,<atlve.
Nothing in the srceytioaa  statute (-Art.4E4, =. C., supra,)
makes suoh a state of facts a defense.
              Aa to your    sixth question,   the oourta do not seem
to   have   sassed directly     upon the question of Ahether 9 n&ht
                                    :
                                                                  49. ”




olub’,ar ruah~ 0-1   within the statute,   we quote Artio1e
485, Penal code,

           ,-xi    any pereon ahall g0 Into any Ohuroh or
    any religious assembly, any sahoolroom, ballroom,
    OS other plaoe where persons are assembled for
    amueefient or for educatlonel or aolentlflo pur-
    ~0868, or into any oiroua, ehou or pub110 lxhi-
    bition of any klnU, or social gathering, or to
    any eleotlon oa the day or ‘days ot any eleotion
    where any portion of thd poop10 of thle state are
    aolleoted to fote’ab an elsotlon, or to any other
    plaoe *wh6fe        ople nay be aosenbled to nustor or
    perform any r thee publfo dutleti,and ahalA Bare
    or oarry about hia person any I.stolor other
    firearm, dirk, da er, slung sRot, aword cane,
    zear,       braaq  knuo% e, bowio knife , of any other
       nG of a knife made and manuiaoture# foti the pur-
    pose 0r orrenee end aerense, he shelf.be flned
    not less phan one hundred nor more than rive hun-
    dred dollare or be oonilned In jail not lese
    ‘Taft;’ thirty bays nor more than twelve months, or
          . Aota 1871, p. 25; Acts 1915, p. @L”
           It ~111 be noted that the penalty la In suhstan-
tially the came language and ia the esme a@ that provided in
the general statute  against oarrying prohibited arzae,Arti-
010 483, gene1 Code, supra.
          The gist of the orrem    oorered in Artiole 4.85,
lupm;  is the carry&    of a prohibited reapon into an %a-
sembly ‘mentioned in the statute 8Dd there must be an aotual
assembly of poogle at the time the weapon 1s 80 carried,
Cassels v, State, 108 Tex. Cr. R. 477, 1 3. %. I2d) 644;
Ralney v. State,  8 ?ex. Ur. X. 62, 34 Ann. Rep. 736; Owens
7. State, 3 Tex. Cr. ‘i.404.
          It would seen olear that an assembly au04 aa you
cention would COW rlthln ttnt ?art ot ths statute detlnlng
the assemblies covered as a “place aSere persona are assem-
bled for aausezent” , or tbst cost certainly such an aasen-
blage :would be a “social gatherfng”. If the weapon be oarrled
into the e.ssezblya-P.iloL,anolngwas going 511,we think olearly
the statutory word WballroonP ;vouldbe applicable.
                                                                  50


Honorable kerry L. Jonee, Page &O


          In Owens v. State, slpra, an lndiotment oharefng
the offense to have been committed in a ballroom till be
understood to mean a place where a aOOfa1 gathering oomposed
of men and women were engaged in danoing and it is not even
neoeeararyto allege that danolng was going on, this being a
m.adr or poor.    The court rurther etated that th@ indlot-
ment was good in the oharge either that the offense was eom-
mitted in a wballroom" or at "a eooial gathering*. ~6 af-
flw that suoh a plaos as you doeoribe in yooursixth quo&Ion
would come within either Artiolb 40S or 40s a# a plaoe where
the unlawful oarrylng of weapons ilrprohibita&
          Consideration or your seventh quertlon imp&~   notloe
oftthe language or Artiole 486, zenal Godo:

          @The preoedi& artiole (Art. 4t#,'&~naLaodi)
     shall not apply to peace orfloere or other prama
     authorfeed or permitted by law to oarry.rnar at
     the plaoelrtherein designated.*
          It will be noted that ths exqaiitioneBen enumqf-
ated are not ae numerous a8 thore mentio&ed io.Artfole 464,
nupra, 15 regard to'the orlmciof wilawrtnliy carl?yingarm
generally (Art. US, atp*a). However, the ‘limltat$on doea
not deem to be so striotly applied to pea00 ortiseas. .Wherw-
as Artiole 4B4 prwides   proteQtion to thm peaoe off&oe.ra
%A t,heaotual dieoharge or oifloial dutiss* utQ~~dorr.eot.
within thi .roeBtLon, include'deputy 8cnetkibleior r~.ofai
pollo~~n~,,~o~reo~ive lees~thn rorty dollar8 pur moobh eqr-
penaatlon, it ha@ b6en held under Artd~ola406 th&t,it wf L
not incumbent UpOA a' apeoial polloeman to chow that he wall
then and thare in tb6 disoharge of his &tie8 me #uoh. Wll-
liaiusv. State, +I3Tex. 466.
          'We bellare, however, that Artiole 480 would have
to be read in the light of Artlolae 4815atid484, and that the
Willlame ease would require reoonsbderation,ein~e the amend-
ment to the law in 1916 inoorporated into what is now AFti-
ale $84 the requirement that a peaoe officer suet be *in ths .
actual dlsoharge or his orflbial dutr at ~ths time or oarry-
lng the weapon.. fn other worde; we think the words *author-
ized or perdtted by law to oarry arme at the places therein
designated" would be oonlrtrued to rerer bask to thq g6noral
exemption statute, Artiole 484, aa the +law* referred to in
said Article 486.       .
                                                                       51




    Btonorableperry L. ~05~6, Page 11


              Therefore, you are advised that it is our opinion
    that *apeala oonstabl6s* or "deputy oonstablee6 rererr6d.to
    in your firet question would not oome within the exoeptlona
    to Article 4235ae speoiried'in ArtiOle 486, for the 6am6 rea-
    eona oonsidered in our answer to your first question.
               Your eighth quuestion Is answ6red in the negative
    by virtue oi the expression8 of the C,ourtof Criminal Appeals
    found in Alexander v. State, 27 Tsx. Cr. R. 533, 11 S. W. 6RS;
    Owens v. State, 3 'Per.Cr. R. 4C4; Brook6 v. State, 15 'per.'
    Cr. B. 88; ~05605 t. State, 48 TBI. cr. B. 484, 74 8. w. 570;
    Miohols V. State, 43 .S.W. 404; Gibbs v. State, 70 T6x. Cr.
    R. 878, 156 S. W. 687; Oasssis V. State, 108 'Tex.Or. R+ 477,
    1 S. Pi. (2d) 644. IA the last oas6 cited, Judge Eawklna of
    the present oourt said;
              ~6Theowner or orroupantor a hou86 whore p60-
         pie are asse,mbledIn a social gatherIn& may bo
         guilty or there oar@.5g a pistol odler the pro-
         vl,6io56of Art1616 485, 2. 0.; h65ee uader the
         fact6 proven th6~oougt          refuaad appal-
         lant.8 epeotal oherg        dlreoted~sa aoqtittal
         if he was ln his own horn6at th6tim6 h6oarried
         th6 pistol.. ~(alting~easss.)
              With r6f6r6506'to your ninth question, w6 have oare-
    fully ooneidske$ th6 propodfion   of whether a hotel lobby
    oomea within the typ6 oi assemblage oovsred by th6 &tatute.
    we have ooiaeto the oo5olualo5 that it muld not I #IItaoto
    i; ;rb a plaoe; but natufally oonditione could ar  -!hmizki)
                                                         56.
            Certainly a hote,llobby ie not a ohuroh, abhoolroom,
    ball&om, or olrow, show, or publi~oexhibition ar meant In
    the article. X6 do know that persons could very w611 a#-
    eemble there for r6ligiou6, eduoational or soientirlo pur-
    posee. Inaeed eooial gatherings ar6 fntquantly held in hotel
    lobbies, and it require6  50 vivid Imagination to vieuallze
    people assembling ther6 to perform public duties. Suoh mat-    .
    ters would be susoeptible to proor; if the Stat6 should prove
    6uiflol6nt faote, a hotel lobby would oome ?&thin the law.
    Reoause of the possiblllties, we do not attempt to oat6gor-
    ioally answer your ninth qusstion.
              Your tenth and rinal questionis aa to the right of
    a hotel deteotive to bear the prohibited arme while 05 duty.
    As stated, if within the hot61 lobby there was a pub1i.c%6-
    semblage under the olroumatancas dieousaed in the preoeding
I   paragraph making said place one withI Article 485, the hot61
                                                                    52


,k   Honorable kerrj L. 50566, kage 12


     deteotive would 00m6 within the rules laid down by the oa666
     cited in answer to your ei hth question, and h6 would be
     -enable to proseoution. ff the,hotel lobby did not, in
     faot, come within euoh definltio5, under the authority and
     limitations a6 announced in Robison v. State, 103 Tex. Cr.
     R. 141, 280 S. w. 776, we are Of the opinion that the de-
     teotive oould bear arm.   With reierenoe tO a night watoh-
     mailfor an oil company, the court said:

                      Apppellantwa6 emppleyedby the Big
         L6ke &'&mpc%ny   a6 a nlgh$ watohman. We h6V6
         no doubt of his right to oarry a pistol aurlng
         the hours and at the plaos or hi8 SaLd employment.
         . . .
                       Appellant teetlfl6d that'lt was hi8
          busilre*~s't~
                      watoh the 6omp6ny*s property at night.
               V6 are.oi oplni05,that app6llant*e right to
         oarry th6 pistol only .Iay~wit~lnthb boandrs of hle
         eraployrPsnt.and   during the hour8 that hs wae 05
         duty. Lxlrlng'.euoh    houro'nr,thiak he wae exempt
         under thclaw, but that ne-had no right tQ orafm
           ld         tion whsn 86oklardund the town and oil-
         Image~?!~!~xoA    in the daytim6. He doss AOt a~hdm
         that he had any su$Ndu$i66 witlilnhla elqploy-
         m65t, or that h6 ~6 engag6dz~~.n    any ~Offlo~ial duty
         at :@m tima .heowes aeeA oarrying tlm pletbl.~
         (~pbasis ours.)
               We trust th6.tthe abOv6 ~4txpo6lt~o5 oi thb ]ar ap
     pl&oable'to prohfblt6d‘w6apon6 dll prwe 30 Abe of benefit
     to you, aM the@ it aaequately~656lrarsall or your questions.
