                               The Attorney’ Ge,neral of Texas
 ,M MATTOX                                     Dacetther 28,   1984
 ttorney General


 Ipmmscourt
          8UlldklQ            Bouorable James S. L:(:rath                    Opinion No.     m-286
r.aBox1254B                   Criminal District At':orney
Auam, lx 75711.2545           Jefferson County Courthouse                    Ret   Whether handguns may be
   2u75-2501                  P. 0. Box 2553                                 bought,   sold,    and traded    at
   lkx QlW574-1357
                              Beaumont. Texas   77’104                       the Port Arthur Civic Center,
I elecqpier 512147502s5
                                                                             a premises     licensed   for  the
                                                                             sale or service      of alcoholic
 :4 Jackson, Sulto 700                                                       beverages
wellas. TX. 75202.4505
2w742.SQ44
                              Dear Mr. McGrath:

&24 Alberta Ave., Suile 180        You inform us th,at handgun dealers rent spaces at tha Port Arthur
El Rso. TX. 7QQtB2793         Civic Center in ordr,r to sell the guns.   The Civic Center is licensed
 1Y5334454                    by the state for the: sale and service    of alcoholic  beverages.   You
                              wish to know whethey, section 46.02 of the Penal Code is violated   when
    Teme. suits 700           handguns are bought, sold, and traded at the Port Arthur Civic Center.
 ouston. TX. 77w2.3111
 131223-5888                       Section   46.02 of the Penal Code provides         es follows:

                                            (a)   A person    commits an    offense      if          he
 I5 Broadway. Suite 312
 xbbock. TX. 7Q401-3479
                                        intentionally.  knowingly, or recklessly    carries          on
SCW747.5235                             or about II:Ls person a handgun, illegal     knife,          or
                                        club.

 Xl9 N. Tenth. Suite B
                                            (b) llxrept as provided   in Subsection  (c).            an
nwllerl, 7x. 7asQt.1555
wa8S2.4547                              offense    under  this   section   is    a  Class             A
                                        misdemeamr.

Lw Makl flu*. mte 400                       (c) !m 'offense under this section is a felony
Sm Antonio. TX. 7-2797
                                        of the third degree if it occurs on any premises
 t2a25.4191
                                        licensed  m: issued a permit by thin state for the
                                        sale or sowice    of alcoholic beverages.
 An Equal OppOrtunityI
  Wirmalive Action Emplow          Section   46.03 provides    certain   exceptions    to section     46.02 of the
                              Penal Code:

                                         (a) The provisions   of Section       46.02   of   this    code
                                         do not app::y to a person:

                                             . . .   >




                                                         n. 1270
Honorable   James S. McGrath - l’oge 2      (JM-286)




                (2) on his ova premises or premises under his
            coatrol   unless he i.r an eeployee or agent of the
            owner     of     the    premises   and   his     k-i-7
            responsibility      is tD act in the capacity        of a
            private    security    ,91ard to protect    persons     or
            DroDertY . la which eveat        he mbt   comol~
                                                          . -    with
            &bhivibion     (5) of this subsection:

               (3)   traveling;

                . . . .

      Whether OF inJividuai tlas violated     section 46.02 or may avails
himself of section 46.03 is a fact questioa to be :esolved through the
criminal  process.     See, e.g.-, Tex. Coast.   art. 1. S110,15,19;    Code
Grim. Proc. art.     1.03.   Thus, ve rannot aaswer your question       as a
matter of lav.     We can, however, point out judicial    constructions   of
sectioa   46.02 which should be helpful         to you la your role       as
prosecutor of alleged violations    thereof.

       Section 46.02(c)     of the Penal Code has been strictly           enforced.
The court in Hilligan      v. Starl,   465 S.W.2d 137 (Tex. Grim. Apr. 1971).
held that the defendant         comitted     a felony    offease    by carrying     a
pistol   in a coffee     shop licmsed     to sell beer,     even though it could
not legally     sell beer at the time defendant was there.           A~I individual
prosecuted      under   section   4,6.02(c)    is   not,  however,    deprived     of
defenses     available    under t!le Penal      iode.    The Court of Criminal
Appeals has decided that the ~defwse of necessity,             which section 9.22
of the Penal Code defines,       16 not unmailable       as a matter of lav la a
prosecution     under section 46,02(c).       Johnson v.- State, 650 S.W.2d 414
(Tex.    Grim. App. 1983) (en baac).           Thus, statutory     aad judicially
created     defenses   to carryinS     a gun are not iaapplfcable           to such
conduct on premises licensed         under the Alcoholic     LIeverages Code. -See
Flores v. State, 486 S.W.2d !i77 (Tex. Grim. App. 1972).

     Texas law has long inc:luded prohibitions   against carrying   a gun
and has provided the exceptiona now found in sections 46.03(a)(2)      and
(3)  of the Penal Code.       The Act of April    12. 1871. made it      a
misdemeanor offense for aayow to carry “oa or about his person . . .
any pistol   . . . .w Acts   1671. 12th Leg..  ch. 34. 51, at 25; C 8.
Ganunel, Laws of Texas 927 (1:3!M). It included the following   proviso:

            [Plrovided,    that this    section   shall   aot be so
            construed as to pwhibit       auy person from keeping
            or bearing arms on his or her own premises. or at
            his or her own p:Lace of business.          . . . nor to
            prohibit    persons  traveling     in  tLc State     from
            keeping or carrying arms with their baggage.        . . .
Woaorablc   James S. HcGrath - page 3          (JM-286)




Id.     Judicial     decisions      inte,rpretiag    the Act    of April     12. 1871.
created an exception          allowing     the purchaser    to take a handgun home
from the places of purchase.           !iee Waddell v. State, 37 Tex. 354 (1872);
                                       _--
Christian      v. State, 37 Tex. 475 (1872).           The legislature    has modified
the statutes       on illegal     carrying    of guns. but the judicially       created
exception       has continually       bmcen recognized.       See, e.g..    Henson v.
State,      252 S.W.2d 711 (Tex. ~:rim. App. 1952); Ho1          Ll&na- v. State,    158
KS14           (Tex. Grim. App. 1913); Waterhouse v. State,              138 S.W. 386
 (Tex. Grim. App. 1911); Pressler              v. State,   19 Tex. App. 52 (1885).
See 20 Tex. Jur. 3d, Crimxr                Law 91332.    It has been held that the
purchaser must carry the gun i;rwithout                 unreasonable delay.      Benson
0.   State,     w         The judicially       created defense for purchasers        and
the statutory        defense    of tr.rreling     are relevant     to evaluating     the
conduct of an individual          who purchases a gun at the Port Arthur Civic
Center.       Whether an individual        is a traveler    is generally    a question
of fact.       George v. State, 234 S.W. 87 (Tex. Grim. App. 1921).

      We next consider        provis~lons   relevant    to the conduct of         the
handgun dealers        who sell      guns in      the   Civic    Center.     Section
46.03(a)(2)    renders section 46.02 of the Penal Code inapplicable              to a
person on premises under hial control.              Cf. Flores v. State,
(predecessor     of   section    46,02    inapplicme       to liquor           v
                                                                         licensee   s
employee carrying      arms at his place of employment).           A prior opinion
of this office      has determined that premises leased by an individual
may qualify    as premises within section 46.02(a)(2)          as long as he has a
right    to control     these premises.        Attorney    General   Opinion     H-22
(1973).     See also Ever* v. 2;.             576 S.W.Zd 46 (Tex. Grim. App.
1978); Attorney General Opinion H-185 (1973).                 Whether the handgun
dealers have sufficient       control over the spaces they rent at the Port
Arthur Civic Center is a fact question.




                Whether particu L;lr conduct violates      sectioa
            46.02 of the Penal Code is a fact questioa.            A
            judicially    created   defense to prosecution   under
            section 46.02 permit,8 the purchaser of a handgun
            to take it home.       !?remises leased by a handgun
            dealer     may qualify   as premises within    section
            46.03(a) (2) if the dealer has sufficient      control
            of them.




                                                 JIM     MATTOX
                                                 Attorney General     of Texas



                                        p. 1272
Honorable   James S. McGrath - Pzy;e 4     (JM-286)




TOMGRPXN
First Assistant   Attoruey   Generd.

DAVID R. RICHARDS
Executive Assistant    Attorney   Gmeral

RICR GILPIN
Chalnnan, Opinion     Committee

Prepsred by Susan Garrison
Assistant Attorney General

APPROVED:
OPINION COHMITTEE

Rick Gilpin,   Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Bruce Youngblood




                                    p. 1273
