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                 THE   ATTORNEY         GENERAL
                           OF'TEXAS


                           December 21, 1990



    Honorable William C. Wilson   Opinion No. JM-1271
    Major General, TXARRG
    Adjutant General's Department Re: Authority of an employee
    P. 0. BOX 5210                of the Adjutant General's De-
    Austin, Texas 78763-5218      partment to carry a handgun
                                  while in the course and scope
                                  of his employment   (RQ-2166)
    Dear General Wilson:
         You have requested our opinion regarding whether a
    particular employee of the Adjutant General's Department may
    lawfully carry a handgun while performing his duties on
    premises under control of the department and while traveling
    to and from those premises.
         Section 46.02 of the Penal Code provides: "[A]. person
    commits an offense if he intentionally, knowingly, or
    recklessly carries on or about his person a handgun, illegal
    knife, or club." Section 46.03 states:
           (a) The provisions of      section 46.02 do   not
           apply to a person:
              (1) in the actual discharge of his official
           duties as 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 unless he is an employee or agent
           of the owner of the premises and his primary
           responsibility is to act in the capacity of  a
           security guard to protect persons or property,
           in which event he must comply with Subdivision
           (5) of this subsection:
              (3) traveling:
              (4) engaging in lawful hunting, fishing, or
           other sporting activity if the weapon is a
           type commonly used in the activity:




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          (5) who holds a security officer commission
       issued by the Texas Board of Private Investi-
       gators and Private Security Agencies, if:
                  (A) he is engaged in the performance of
               his duties as a security officer 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
          (6) who is a peace officer, other than a
       person commissioned by the Texas State Board
       of Pharmacy.
     In 1989, the legislature added the following provision
to the adjutant general's duties under section 431.029 of
the Government Code:
       The adjutant general shall:
       .   .    .    .

          (12) employ and arm persons as public
       security officers licensed under Chapter 415,
       Government   Code,   for   the   purposes   of
       protecting property that is under the adjutant
       general's authority and satisfying applicable
       security requirements    established by    the
       secretaries of the army and air force.
Acts 1989, 71st Leg., ch. 336, 5 1, at 1303.
     you indicate that the individual in question holds a
license, under chapter 415 of the Government Code, from the
Commission on Law Enforcement Officer Standards and Educa-
tion. Such a license does not, however, make a person a
peace officer and therefore does not authorize him to carry
a handgun.   YOU ask then by what authority the public
security officer may carry a handgun.
     In our opinion, subsection (12) of section 431.029 of
the Government Code, by authorizing the adjutant general to
"employ and m   persons as public security officers," acts
as an additional exception to section 46.02 of the Penal
Code. It is well established that any potential conflict
between two statutory provisions should be harmonized if



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             Honorable William C. Wilson - Page 3     (JM-1271)




             possible and effect given to each.    7,                 542
             S.W.Zd 169 (Tex. Crim. App. 1976); -Universal           Ins
             Co.,                373 S.W.Zd 66 (Tex. Civ. APP. - 1963;
             writ ref'd n.r.e.).    Thus, it appears that the public
             security officer may carry a handgun while performing his
             duties on premises under your control. Although subsection
             (a)(3) of section 46.03 of the Penal Code specifically
             excepts from section 46.02 any person who is Vraveling,"
             this provision has been repeatedly held not to except
             persons who leave on a journey and return home the same day.
                                250 S.W.Zd 795 (Tex. Grim. App.), cert.
             Lgy%sFF          901 (1953); &oraP v. Stofs, 234 S.W. 87
             (Tex. &rim. App: 1921); Creswell v. State, 39 S.W. 372 (Tex.
             trim. App.) rev*d on other crounds 39 S.W. 935 (Tex. Crim.
             App. 1897).' As a result, the trakling exception does not
             apply to this individual.
                  As to your second question, since the     authority to
             "arm" the public security officer derives from subsection
             .(12)of section 431.029 of the Government Code, he is not
             required to comply with any of the provisions applicable to
             licensed security officers under subsection (a)(5)       of
             section 46.03.

                                    SUMMARY
                      A public security officer employed by   the
                   Adjutant General's Department may lawfully
                   carry a handgun while performing his official
                   duties on premises under the control of the
                   adjutant general, but not while traveling to
                   and from those premises, without the necessity
                   of obtaining a commission from the Board of
                   Private Investigators and Private Security
                   Agencies.                      .




                                                JIM        MATTOX
                                                Attorney    General of Texas
             WARYEELLJ3R
             First Assistant Attorney General
             mu MCCREARY
             Executive Assistant Attorney General




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JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Rick Gilpin
Assistant Attorney General




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