                           QBffice
                                oftiyElttornep
                                            @XneraI
                                        &date of IBexaS
DAN MORALES
 ATTORNEY
       GENERAL                             March 3,1995


     Honorable John B. Holmes, Jr.                 Opiion No. DM-327
     Harris County District Attorney
     201 Fannin, Suite 200                         Be: Whether private security guards and
     Houston, Texas 77002-1901                     off-duty peace officers are prohibited from
                                                   cartying f%earms on the premises of
                                                   racetracks by section 46.03 of the Penal
                                                   code (RQaW

     Dear Mr. Holmes:

            You ask whether an off-duty peace officer is prohibited from carrying a 6rearm on
     the premises of a racetrack. Your specific query is as follows:

               May a peace officer, not working at the time for a govemmental
               entity, but employed in an off-duty status or “extra-job” capacity for
               the purposes of providing security to his off-duty employer, a
               racetrack, go [onto] the premises of a racetrack with a firearm?

     You also ask whether private security guards are prohibited from carrying firearms on the
     premises of racetracks. Since this office received your request, the revised Penal Code has
     gone into effect. See Act ofMay 29, 1993, 73d Leg., B.S., ch. 900, 5 1.01, 1993 Tex.
     Sess. Law Serv. 3589,3690-91. The provision that you asked about, former Penal Code
     section 46.04, has been amended and renumbered as section 46.03. .See id. Other
     provisions relevant to your query have also been amended and renumbered.

             Subsection (a) of section 46.02 of the Penal Code generally prohibits the carrying
     of a handgun. Subsection (b) of section 46.02 provides that

                   [i]t is a defense to prosecution under this section that the actor
               was, at the time of the commission of the offense
                   (5) a person who holds a security officer commission issued by
               the Texas Board of Private Investigators and Private Security
               Agencies, if:
                         (A) he is engaged in the performance of his duties as a
               security ofiker 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
Honorable John B. Holmes, Jr. - Page 2             (DM-327)




               (6) a peace officer*, other than a person commissioned by the
           Texas State Board of Pharmacy.

See Penal Code 5 46.02(b) (footnote added).’

        Section 46.03 of the Penal Code, the particular statute about which you inquire,
provides as follows:

                (a) A person commits an offense if, with a firearm..                  he
           intentionally, knowingly, or recklesdy goes:
                      (1) on the physical premises of a school, an educational
           institution, or a passenger transportation vehicle of a school or an
           educational institution, whether the school or educational institution
           is public or private, unless pursuant to written regulations or written
           authorization of the institution;

                    (2) on the premises of a polling place on the day of an
           election or while early voting is in progress;

                    (3) in any government court or offices utilized by the court,
           unless pursuant to written regulations or written authorization of the
           -;
                      (4) ,on the premises of a racetrrck, or


       ‘1Tbcpenalcodedcfincstbe~“~offim”innfacnato~2.l2ofthcodeof
Ctimiml Pmcahuo. See Penal Code 8 l.O7(a)(36). Privatesecurityguardsare not peace offcers witbin
lhis definition. See Bohn v. State, 651 S.W.26 274,275~76 (Tex. App.-Dallas 1983, no writ) (discussing
formerPenal Codesection l.O7(a)(25)which has been renumbetedas Penal Codesection I.O7(a)(36)).

        ‘Stewards and judges employedby the Texas Racing Cmnmission”wue “peaceofficers”under
subsection (21) of article 2.12 until 1991 when the Sekwlty-secmldLegkkue replaced the words
‘Jtcwardsalldjodges”with”invasligatnrs.”&?eAct0fMay22,1991,726Lcg.,RS., ch. 386,s 70.1991
Tex. Sets. Law Se.rv.1444, 1466.67. Priorto 1991, section 11.01 of the Texas Racing Act, V.T.C.S. art.
197e,pmvidcdthattbcprimarydutyof’stcwardsaodjudges”wastocnforccoftheaa,andcontin~as
follows: “Each steward or judge may exercktheautholityofa~ofliccrtocnforceanypenal
provisionoflawwhilcinthe-dtbat~‘swlployment,ifthestcwardorjudgeisin,on,or
ahoutanygreyhouodmciogorhorsemcingonelosumondcrthisAct.” Thislanguagewasdeletedin 1991
alld @aced with the following: “The conunission may commission as many investigatorsas the
aMlmissiondaermines~tocaforathisAnaadtberulcroftbecommiFsiosl....                               Each
m~ssionediwesligatorhaJtbcpowcrs~apcaao5~,endshallmakeaad~abondas
&by*           commkion.” See id. $49, at 1460.

        ZThisn5ce amclmled that the formersection46.03 exceptionfor peace officers exeqted them
flunl prcsecdon all&r formet section 46.02 tqardless of what in the state they might have been or
wbaha they were on or off duty. See Atlomey Gmerd Opinion IX4613 (1986). We do not consider
here whether the rovisioo of section 46.02,
                                          oxwklating formersectioas 46.02 and 46.03, changes that
cOnClUSiOn


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Honorable John B. Holmes, Jr. - Page 3        (DM-327)




                    (5) into a secured area of an airport.
               (b) It is a defense to prosecution under Subsections (a)(1)-(4)
          that the actor possessed a firearm while in the actual discharge of his
          o@cioI duties as apace o&?ker

             (f) An offense under this section is a third degree felony.
          ~pmphases added.]
This section permits peace officers to carry &arms on the premises of racetracks while in
the actual discharge of their official duties. Investigators employed by the Texas Racing
Commission are cIeariy peace officers under this provision. See note 1 supra. You are
concerned, however, that this provision precludes private security guards and off-duty
peace officers fkom carrying &arms on the premises of racetracks.

         The legislature added subsection (a)(4) regarding racetrack premises to former
section 46.04, now renumbered as section 46.03, in 1989. See Act of May 27, 1989,71st
kg., R.S., ch. 749, $2, 1989 Tex. Gen. Laws 3332. In 1991, the legislature amended
subsection (b) of former section 46.04 to provide that the defense afforded to peace
ofIicers  while in the discharge of their actual duties applied to subsection (a)(4). See Act
of May 18, 1991, 72d Leg., RS., ch. 386, 5 71, 1991 Tex. Sess. Law Serv. 1444, 1467;
Act ofMay 18, 1991, 72d Leg., RS., ch. 433, Q 1, 1991 Tex. Sess. Law Serv. 1597.
Based on the insertion of racetracks into former section 46.04 and a review of the
legislative history and prior cases, you conclude that

          peace officers, while working at the time for a governmental entity,
          but employed in an off-duty status or “extra-job” capacity for the
          purposes of providing security to his off-duty employer, a racetrack,
          may not go [onto] the premises of a racetrack with a tirearm.

You also conclude that private security guards are prohibited from canying 6re.arms on
the premises of racetracks.

        We agree with your conclusion. First, we believe it is mandated by the statutory
language. Subsection (b) of section 46.03 provides a defense for peace officers only while
in the discharge of their official duties. To conclude that peace officers are excepted from
section 46.03 when they are off-duty would be contrary to the unambiguous language of
subsection (b). In addition, section 46.03 simply does not provide a defense for private
security guards, and thus clearly prohibits private security guards from carrying thearms
on the premises of a racetrack under any circumstances. Furthermore, to gratl the
exception for private security guards and peace officers in section 46.02(h) onto section
46.03 would clearly run counter to the legislature’s intent to treat the places listed in
section 46.03 differently than all other places. Moreover, section 46.02(b) on its face
operates to enumerate exceptions only to section 46.02(a).

       In Attorney General Opinion JM-613, this office considered the relationship
between the exception for peace officemto the general misdemeanor offense for carrying

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Honorable John B. Holmes, Jr. - Page 4              (nn-327)




firearm set forth in former section 46.03, now section 46.02(b), and the defense for peace
officers to the felony offense for carrying firearms in schools, polling places, and courts set
forth in former section 46.04, now section 46.03. See Attorney General Opinion JM-613
(1986) at 5. It stated as follows: “Jfthe legislature [in enacting former section 46.031 had
intended peace officers to be protected from prosecution in other situations only when in
the actual discharge of official duty, we believe it would have specified the circumstances,
as it did in [former] section 46.04.” Id. Attorney General JM-613 further supports our
conclusion that the defense to former section 46.04, now section 46.03, for peace officers
in the discharge of their official duties is much more limited than the general exception for
peace officers provided by former subsection (a)(6) of section 46.03, now section
46.02(b)(6).

         Second, we have reviewed the legislative history of subsections (a)(4) and (b) of
section 46.03,3 and we agree with your assessment that there is no evidence of legislative
intent indicating that the legislature did not intend to preclude private security guards and
offduty peace officers gem possessing handguns on the premises of racetracks. The bii
analyses suggest that the legislature inserted subsection (a)(4) into former section 46.04.
now section 46.03, in order to make the possession of a firearm on the premises of a
racetrack a third degree felony. See House Comm. on Urban Atlhirs, Big Analysis, H.B.
1293,714 Leg. (1989); Senate Comm. on Criminal Justice, Bii Analysis, H.B. 1293,71st
Leg. (1989). The legislature does not appear to have considered how this amendment
would affect racetmck securhy! We realize that the prohibition against the carrying of
tirearms by private security guards and off-duty peace officers on the premises of
racetracks may have been an unintended result of the amendment. There is nothing in the
legislative history from which we could conclude that the legislature intended otherwi~e,~


        ).%?e&loose&mm on U&an Affairs,Bill Aaalysis,H.B. 1293,71st Leg. (1989);Hearingson
H.B. 1293Befonzthe Heasc Cennn. on Uman Aft& 7l.d Leg. (April 25, 1989)(tapeavailablethrough
HOIWViden!Andio8ervicesOft&); 8enatcComm.on Criminal hutice, Biil An.@& H.B. 1293,71st
Leg. (1989); HearinrJson H.B. 1293Beforethe SenateComm.on Criminal Justice,716 Leg (May 23,
1989) (tape avaiI+lc tbrongh Scnalc Staff ,%-viceso&a); House Connn. on Urtraa Affairs, Bill
Analysis, H.B. 2263.72d Leg. (1991); HouseResearchOrganization,Bill Analysis,H.B. 2263.72d Leg.
(1991); House Comm. on Crhninal Jurispndcna, Bill Analysis, H.B. 44, 72d Leg. (1991); House
ResearchOrganizationBill Analysis,H.B. 44,72d Leg. (1991).

        ‘lndaed, the le,gislatmeia 1989 did not make ewn the defense for peace officers while ia the
discbargeof their official da&s applicableto the canyin of fixarms on the premisesof mcetxks, see
Acl nf May 27,1989,71st Leg., RS., cb. ‘749.8 2.1989 Tea. Gen. Laws 3332, and had to amandformer
~on46.04,wwscction46.03,in1991tosodo,srrActofMay18,1991,72dLcg.,RS.,ch.386,~71,
1991 Tex. 8ess.Law 8etv. 1444,1467;Act ofMay 18,1991,72dLeg.,RS.. ch. 433,s 1, 1991Tex. 8ess.
Law sclv. 1597.

         5As    nntcd abwc, in 1991, the legislatme revisitedthis issae and amendedformersection 46.04,
 mwastion46,03,tomaLcthcsubsection@)dcfmJeforpeaa~~whileintheactualdiachargcof
 their oflicial duties applicableto carryingfirearmson the pmnisea of rac*radts. &!cnote4qwa. Itis
 nntablethat wbemdoing w the legislaturedid not amendthe statuteto permitprk’atessurity guardsand
 cdTdutypeace&cerstecanytiwannsonthcprunisesof~.


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Honorable JohnB. Holmes, Jr. - Page 5           (DM-327)




however, especially in light of the unambiguous statutory language to the contrary.
Furthermore, if we were to conclude that private security guards and off-duty peace
officers are not prohibited from carrying firearms on the premises of racetracks, the logical
result would be to permit them to carry tirearms on the other premises enumerated in
section 46.03, i.e., schools, polling places, and courts, which the legislature obviously did
not intend.

        For the foregoing reasons, we must abide by the plain and unambiguous meaning
of the statute and conclude that private security guards and off-duty peace officers are
prohibited f%omcanying &arms on the premises of m&racks by section 46.03 of the
Penal Code. It is not within the power of this office to read subsection (a)(4) out of
section 46.03 or to broaden the statute’s very limited defense for peace officers in the
actual discharge of their official duties. We urge the legislature to assess whether existing
law permits adequate security for racetmcks.

                                    SUMMARY

                Private security guards and off-duty peace officers are prohibited
           from carrying firearms on the premises of raetracks by section 46.03
           of the Penal Code. Peace officers, including investigators employed
           by the TexaaRacing Commission, may carry firearms on the premises
           of racetracks while in the actual discharge of their ofiicial duties. See
           Penal Code $46.03(b); Code of Crim. Proc. art. 2.12(21).




                                                        DAN MORALES
                                                        Attorney General of Texas

JORGE VEGA
Fii Assistant Attorney General

SARAH J. SHIRLEY
Chair, Gpiion Committee

Prepared by Mary R Grouter
Assistant Attorney General




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