      OFFICE OF THE A’ITORNEY GENERAL                   OF TEXAS
                                     AUSTIN



HonorableHomer Garrieon. Jr., Direotor
Department.of Publio Safety
Camp Mabry
Austin, Texas
Dear Sir:                            Opinion No. Q-43




          This Is in reap                          tter o? noent date,
from uhioh wa quote th@ r
                                                  0r peraon8 who
    operato oomme                                 aek ii it muld
    be iawrtilr0                                 to1 while trans-




                                             er or not, in your
                                            ld be allbvmd to ottpry
                                            g while he is trans-
                                            ok on regular rou$er
                                6 through several oountiea. I
                                     that praotioallyevery oa8e


                                dViB0the publio generally.
            ”   .   .   l
                            ”
                            .




          The artiole oited by you (Art. 484, Penal code)
contains the exoeptionsto the statute forbiddingthe uulak
tu.lbearing of certain arms. Artiole 483, Penal Code, is
EonorableHomer GarriBon, JP., Director, Page 2


the prohibitoryproriaion, and reade as followsr
         Whoever shall oarry on or about his person,
    saddle, or in his saddle bags any pistol, dirk,
    dagger, Blung-shot,sword cme, spear or knuokles
    made Or any metal or any hard BUbBtanO8, bowie
    knlre, or any other knire manufaoturedor sold
    ror the purposee 0r orreaae or defense, shall be
    punished by fine not less than #lOO.OO nor more
    than 8500.00 or by oonrinement in jail for dot
    less than one month nor more than one yearr Aqts
    1687, p. 6; Aots 1905, p. 56; Aots 1918, p. 194."
         Uhile Article 484, contains the following language:
         *The preoeding artiole shall not apply to e
    person in actual servioe as a militiaman,nor to
    any peaee offloor in the aotual disoharge or his
    official duty, nor to the oarreng of arms on one.8
    own premises or place 0r b\Lsiness,nor to per8ons
               nor to any deputy oonstable, or spa&al
    po oemen who reoeires 8 ocslpensation
    v                                     0r rorty dol-
    lara or more per month for hiB Berrioes as Bueh
    oifioer, and rho is appointed in OOniOnritywith
    the statutes authorizingsuch appointment;nor to
    the Game, fish and Oyster OommiBsioner,nor to any
    deputy, when in the aotual discharge ot his duties
    as euoh, nor to any Game warden, or looal deputy
    Game, Fish and Oyster Commissionerwhen in the eo-
    tual diioharge of his duties in the oounty of hia
    residenoe,nor shall it apply to any game wardon~
    or deputy Game, Fish and Oyster Commisalonerrho
    aotually reoeires from the !?taterees or oompenrra-
    tion r0F his services. Aots 1871. p. 25, Aots 1918,
    P- 194." {Emphasisours).
          !PheBOhtiOn  or your question, or oourse, depends
upon the Interpretationto be given the words of the latter
statuteas undersooredby us abore. Is a person driving a
truck, transportingproperty on regular routes or speoial
trips through several oounties a %rareler"? Ii so, he is
not amenable to the punishment presoribed by Article 483,
BUprB,regardless of the feat that he aarries a pistol; if
he is not a WtrevelerW,he is ameneble and may be convicted
and punished as a law violator.
HonorableHomer Carriaon, Jr., Director,Page 3


          U!etake oooasion here to allude to earnest sug-
gestionsmade on at least two ooo~sions  by the Court of
Criminal Appeals of Texas, that the Legislatureshould
either repeal the exemption, or define what is meant by
a traveler. See Bain Y. State (18981, 38 Tex. Cr. R. 635
g4Sa V?;5;,“& Hanoook Y. State (19271, 106 Tex. Cr. R. 66&,
    Y.  .    .  In the latter ease, Judge Lattimore wrote
the roilowing:
               "Cur Legislature says, in article 484, P. C.
         1925; that *B person traveling*,   who oarries a
         pistol, is not punishable therefor; but fails to
         define or Bay who is a person traveling,and the
         courts through all these years have traveled de-
         Sioux   routes, going rrom one set 0r racts to
         another dirrerent,and on to another, trying in
         each to find Borneresting place upon whioh might
         be planted judioial announcementBB to who is a
         traveler, but alas, have round it not. The an-
         cient rith hia oxcart, the Mexioan with his burro,
         the pioneer wlth hiB rOBdleSB route, the modern
         highwBy, the automobilewith its distanoe anni-
         hilating speed, the inorease of population,the
         joy ride extending itself in a few hours aver
         several   countlaB, the man really oonvoyingYalu-
         ablea, and the happy-go-luokynomad, who spende
         but a night in each tourist park, and WBnderB
         on and on forever, all these aid in graying    the
         hair of a oonsoientiouscourt trying to Bay who
         may or may not avail himself of the exemption
         of being a person traveling,whioh, by the way,
         the Legislature ought to repeal or define."
          Pfehave read many oases in our errort to aesiat
you in determiningwhether a truck-driver,under Fe ;izum-
stances given, would oome within the exemption.
alone are not hermonious, the earlier oaBeB tending to the
dire&ion of greater latitude of oonstruotionthan those Or
later years. The distance covered is not alone the deter-
mining factor; the mode of travel and the time required for
the journey are elements which have to be oonsidered. Pre-
oedents establishedin the days Or horse-drawnYehfOleB 818
not applicablein this age of sixty-mileper hour automobilee.
Kemp v. ttate, 116 Tex. Cr. R. 90, 31 9. W. (26) 652; Grant
Y. State, 112 Tex. Cr. R. 20, 13 S. W. (26) 889; Smith Y.
ytg,*g    Tax. 464; Hut V. State, 52 Tex. Cr. R. 477, 107
 .   .       .
Honorable HolaerGarrison, Jr., Direotor,Page 4


          Despite the oonfliotsnoted, we have found BOIN
caBeB whioh may properly be termed aB being analogous to
the question y0u present.
           In Yilliams v. State, 44 Tex. Cr. R. 494, 72 9. W.
380, it was held that a railroad train porter on a regular
run of some 150 miles eaoh day wan a traveler and therefore
exempted iron criminal liability for oarrying a pistol. The
decision aleo asserts that Buoh porter, when on board the
train, was at his place of business, and was exempt from
proseoutionror that reason also.
          In Barker Y. Satterfield (Tex. Cit. App.) 111 s. W.
437, a train auditor was arrested for carrying a piatol while
making a trip as train auditor on a paeaenger train, between
two points some 300 miles apart. He was arrested while on
the train, and brought BUft againet the arresting offioer ror
damages, alleging that the arrest ms wrongful, that he wee
entitled to crarrythe pistol because he wae a traveler and
wee then engaged in his business. The Court sustained the
auditor'soontention.
          In the oase of Eiokman Y. State, 71 Tex. Cr. B.
483, 160 S. V. 382, a merahant derended a chsrge of carrying
a pistol upon the grcand that he was a traveler, but the
Court disallowed the pretense, the reoord disolosing that
appellantwas going out to see hia customerswho lived
'within trading distances" of hiB home town. Since this
was true the Court said this would not constitutehim a
traveler within the meaning of the Code.
          A driver of a servioe oar, employed to take other
parties from Tesarkans   to Linden, TezBB, who were told by
the persons to whom they talked in Linden to go to Atlanta,
TefaB, to see at111 others, and proceeded to then take the
asid parties to Atlanta was arrested in the latter   city when
round with a pistol pushed between the seat oi the car end
the oushion. It is 29 miles rrom Texarkana to Atlanta and
16 miles rurther to Linden. Upon appeal the Court of Crim-
inal Appeals refused to hold that the driver of the service
oar was a *traveY!erv  as a matter or law. See Paulk v. State,
97 Tex. Cr. R. 4l5, 261 5. V. 779. From the opinion we
quote the iOllOwing:
          n. . . It is oontended by appellant that
     the facts show he was a traYeler. The Legisla-
     ture has never seen proper to derine a 'traTeler*,
Bonorable Homer Garrison, Jr., Direotor, Page 5


     and it thereiore becomes necessarilya question
     of fact to be determinedwhere the issue arises
     by the judge or jury trying it. In the present
     case no Jury was demanded, but the matter was
     submitted to the district judge. He heard the
     evidence and saw the witnesses, and his finding
     reileota the raot that he did not aocept as true
     appellant'salaim that he was a traveler. We
     think it would be going too far to hold as a mat-
     ter of law that he was."
          In the oase of Armstrong Y. State, 98 Tex. Cr. R.
335, 265 S. W. 701, the appellant waa ehoun to be in the
businaas or hauling cotton pickers rrom one plaoe or employ-
ment to another, but the Court Beid v&ether he was a traveler
was a question of faOt, end refused to disturb the tinding
of the inferior oourt.
          You are oertainly oorreot in your statement  thet
cpractioallyevery oaae would have to be determinedupon
the facts as they exist". We oan oonoeire of cases of the
oharaotep mentioned by you where the distance owered, the
mode of travel used, and the time required would be such
as to warrant the OontrlUBiOn that a defendant would be en-
titled to the exempt$on as a traveler. On the other hand,
where a person drives his truok short diatanoea,and returns
to his home daily, we do not think the COIUtB would Benotion
the claim to exemption. So fBr as we have been able to rind,
the Court of Criminal Appeals has not laid down an unvarying
rule to rit every instanoe. Surely, the Legislaturehas not
heeded the Court's plea ior amendment derining the term
vtravelerc,nor repeeled the exemption.
          We regret our inability to give you a better ori-
terion to guide you in determinationof the question with
whloh you and other peaoe oftioers, proroseoutora
                                                and judges
generallymust oonstantly be confronted.
                                        Yours very   truly
                                   ATTORJy25GRWERALOFTEXAS


                                                         @*
                                              njamin Wcodall
                                                   Assistant
