       OFFICE OF THE ATTORNEY GENERAL OF TEXAS
                            AUSTIN




Honorable Alex Jung
County Attorney
~111eepie County
Fredericksburg,  Texas
Dear Sir:



          Tour lettor    request           inton or thbddepart-
msnt on the questions    etat                ubetantially  a8
followa:

                                              y, together
                                            ame to Fndetila&k-
     burg a aortain                          pieked up in     '~
     her (far a ILr                          nd then pfak-
                                              VW) at thr
                                             shamed a gal-
                                              ~crtabliehment
                                    telds of the crity
                                              Before get-
                                    ha tavern, it was
                                  e party,thqt    Mr. A
                                 1, which he had bean
                                 he horn of !&. and lhrs. B.
                                 e home of Xr. and Mrs. B.
                        after its olosla&     the three
                       088 ths highway to another a**
                       e all of the wine rata oonmmd
                     ouplaa iu addition to mte beer.
                     med with a youn& laby outs1 e of
     the threeOcouple party.     Apparently there' &a,
     some trouble between Ur. A and tie wlie.         The
     tfuree aouplea returned to the homu of Mr. and
     We. B, and there Mr. A ordered the plrtol         turn-
     ed over to him, wblch was finally      done by YIrae B,
     nharsu;lon Zdr. k reimmrted some seven cartridges
     lneo the &at01 and it went art and struck Mr. B.
Honorable   Alex Jung, Page 2


             You further state in effect  that we may as-me
for the purposes hereor that the evidsnoe (eon Ii not so
oonclusively    above indloatsd)  will nevel~fheless show tbst
l&r. A had the pistol    in the oar when he and his wife cape
to the home of Xr. and Mrs. B, and that it had been carried
there rrom a certain city outside of Gillespie       county.  Mr.
A us8 in possession of a c.ard simed by the sheriff        of
             County, Texas, showing that Mr. A was a apsolal~
aeputy sherifr of                county.
            Your questions   are substantially     as follows:
            (a) Assuming that Mr. A is       ae;ymi;   a
     special   deputy sheriff   of
     Texas, reoelvtng    no crenpessation    aa suuh,’
     either official    or private,  wan    he authorized
     to so carry a pistol within the        oonflnee   of
     Gilleeple   county?
            (b)  In drawing a ounplaint   an6 lniorma-
     tiorr, is ft moemary     to negative the mettars
     in Artiole   484, Varnonts Annotated Penal Code,
     and to prove such negative allegatioae      in ord8r
     to make out a 0aaeP
            (0) Assuming Mr. A reoeived no oompenea-
     tion as such Orfleer but war duly appointed,
     and -aonfi#med as a apeaial deputy sheriff  of
                County, and assuming that he reoel*-
     ed no private ooupen++ioa   for any services as
     suoh, wan he permitted to carry a pinto1 in
     Gillespie   County?
           (d) Under Artiole  484, eupra, would he be
     olassed as a spsoial polloenran v&o reooivcu, no
     compensation for hie serrioem am such officer?
            (e) ~esumlng Nr. A had no ofricial     bumi-
     ness whatsoever to perform on his trip from
                aity to Fredericksburg,    nor while there.
     and it was solely  one for pleaaurs, was he ex-
     cused from the penalflee    of Artiole 483, Ver-
     non’s Annotated Penal Code, under the provisi~li
     or Article  484, supa,   rela tiva  to ~persons tra-
     veling?
            Article   483, Vernon’s   Annotated Penal Code, provides:
Honorable Alex Jung, Page 3


             "IYhosver shall oerry on or nbout his psr-
       son, eeddle, or in his saddle bags any pistol,
       dirk, dagger, slung-shot,    sword O&M, spear or
       knuckles made of any setal or any hard sub-
       stance, bowie knli'e, or any other knife smnu-
       factored   or sold for the purposes Of oitenso
       or defense,   shall be punished by fine not less
       than $100.00 uor more than &SOO.OOor by oon-
       ?insmsnt in Jail for not less than one month
       nor mm than om year.v
                Article   484, Vernon*8 Aanotated   Penal Oods, reads
as   r0ilOtm:

             mThe preceding article    shall not apply to
       a person in aotusl service as a mllitiams.n,
       nor to any peaes offleer     in the aotual dls-
       ahsrge of his of?ieial    duty, aor to the oarsy-
       ing o? aam8 on one'8 ows premises or place oi
       buslsemv, oar to psr6ons travsling,      nor to shy
       deputy eonstabls,   or special pollossa@who      rs-
       osivss a oompensatior. of rorty dollars.~.or more
       per month ror his senicss      as swh orifoer,    and
       who ls appointed in Oon?OI?aity with the stst-
       utes authorielBg suoh appointmast;      nor to the
       Qwae, Fish and Oyster Commisslonar, nmr to any
       deputy, when in the aotual dlsohargs o? his
       duties as suoh, nor to any gsae wmdeh, or
       loeal deputy Wse Flsb and Oyster Covm~lssion-
       er when in the a&al      disolmrge o? his dutiss
       in the oousty o? his rssidenosl      nor shall it
       apply to any game arden or deputy Game, Bi8h
       and Oyster Comalsaioner rho aotually~reosivss
       iroa the State tees or ooPlpsnsation ?or hi8
       serviass.w
          With reference    to your first   qUeStiOS,   Wa Qall yOUr
attention  o? Gandarav. State, 85.3 9. WI 166, wbioh hold8
t&t ah auto driver ?or hire, who was oomsissioned as a
deputy shori??,   was not authorleed to oarry a pistol when he
WaS sot engaged in the disohtirge o? an official       duty at the
time he was found in possession     o? the pistol.     In this ease,
the deputy qualiried   by taking  the oath o? offios,      asd the
commission was issued to him by ths eouaty olerk of El Paso
County, and the oomdesion      ms eff~otivo    at thetime    appd-
lant was arrested.
            During the time he bad held suQk oommission ap-
pennant had maa no arrwt,           bfib 8ened w alril prooe88, and
wad drawing no toapenaatlon a8 deputy sharirt,            and uao not
engaged in tke dleohargo of any orfialnl            duty at the tin0
he wn8 fouad   in poerr88iOn      of   the pi8tOl.    ti Vim Of the
holding in this .Oa8., we re8pWitfullJ          amMet your fir8t quaa-
tion in the negatlrr.        Provided,    OS oouree, the deputy shar-
lrf wa8 not engaged in trio dleaharge or any orflalal             duty
at ths tlao he ua8 ima         in pes8easion     or  the pirrtol.
           We awnor your 8eaoBd quastton In the naeetiv#.
An lmliotmsn~ in 8uoh a Ba8a is 8UrriOieEt  when the word8
of the 8tatute ars used.  (Plokatt v. State, 10 Cr. 8. 99Or
maker f. Stats, 143 8. W. 611)
          Tha aarar or Powall v. State, 99 9. w. 206; Lewell
v. Stato, 54 Ter. Cr. R. 640, &arri8  V. State, 196 8. W. 890,
hold, among other thlw,   that an lndiotmoat or lniomatian
alleglag the tisrsand venue and that the defordant dlB aarry
on and about hi8 par8Oa o pi8tO1, i8 good.
             'Ia the oaso of Bnkarp.             Stote,~,lOU 8. If. (Ed) 508,
the court~of       Crhlnal          A~pealr,‘%pJlbag    through Ju@a Lot%:-
aore,    wtdr

            Vroa wiat we ham sa%d                  and a8 far           a8
        m hnvo been able ~to uoart&,                     our      oourt8 ,have
         UdrOmy     hOid that rfiOn the b¶&8imArO      84M8
         rit  to orants whwJpt10na to the general penal
         provl8iaa8 OS the 8tatuto a#? ruah exception8 be
  -      ylaoed in a eoparato 8e1othjti or artiolr   from
         the OBOcontaining the daf4nitlon     of tha Offan8e,
         or if they be 8ot 8uoh a8 to be emsantlal to the
         daflnitloo   of the offwiw, it will n&be       me-
        .s8sary to ne&ative rush eroaptls~      in tbo in-
         dictment oharging aucb ofi~on80.*
                3n ownaction          tith
                                the foregoing,   '110oall   our at-
tontiOB t0 the Oa8e8 of FOrtilOB   v. St&e,    198 S. 8,. 1 9d) mz,
and Stove11 v. State, 189 8. SF. (Zd) 104. However, we think
there On808 6r0 diBtlngui8habl.    anilare IWt applicable to the
quaetion8 involved in thl8 Oplrrton.     Therefor@, we do not despl
it fiO@a88a~ t0 dlSoU86 the80 Ba8b8 f\p)bw.
                What   Wa8   8aid     SOgaMing    ?ihO    fiP8t      qW8tiOU     quoted
above 18 equally applloable to four third Wa8aon.                                Timrefare
we M8wr the 8EW in the BO&atiVO.
