Can an armed security officer for the Texas Adjutant General's Department carry a handgun on the job without a private security commission?

Texas AG Opinion JM-1271: Can an Adjutant General Security Officer Carry a Handgun on Duty?

Plain-English summary

The Adjutant General's Department runs the Texas military forces, and it employs public security officers to protect the property under its control. The adjutant general, Major General William C. Wilson, had a practical question in 1990: one of those security officers held a license from the Commission on Law Enforcement Officer Standards and Education, but that license does not make him a peace officer. So by what authority could he carry a handgun on the job, and did he need to carry it while traveling to and from work?

The Attorney General started with the general rule. Penal Code section 46.02 makes it an offense to carry a handgun on or about your person, and section 46.03 lists the exceptions (members of the armed forces or national guard discharging official duties, a person on his own premises, a person traveling, a licensed security officer in uniform, and peace officers). A Chapter 415 license from the law enforcement standards commission is not the same as a peace officer's commission, so it did not by itself let the officer carry a handgun.

The answer came from a different statute. In 1989 the Legislature added subsection (12) to the adjutant general's duties in Government Code section 431.029, directing the adjutant general to "employ and arm persons as public security officers" to protect property under his authority and to meet federal security requirements. The Attorney General read that authorization to "arm" these officers as an additional exception to the section 46.02 handgun ban. Courts harmonize apparently conflicting statutes and give effect to each, so the specific 1989 authority to arm the department's security officers controls. The officer may therefore carry a handgun while performing his duties on premises under the adjutant general's control.

Traveling was different. The Penal Code's "traveling" exception (section 46.03(a)(3)) sounds like it should cover a commute, but Texas courts had long held that it does not apply to a person who leaves on a journey and returns home the same day. A daily commute to and from work is exactly that kind of same-day trip, so the traveling exception did not authorize the officer to carry the handgun on his way to and from department premises.

Finally, because the officer's authority to be armed came from Government Code section 431.029(12), the Attorney General concluded he did not have to satisfy the separate requirements the Penal Code imposes on privately licensed security officers under section 46.03(a)(5), such as holding a commission from the Board of Private Investigators and Private Security Agencies, wearing a distinctive uniform, and keeping the weapon in plain view.

Currency note

This opinion was issued in 1990, and the statutes it construes have since been reorganized and amended (Texas has recodified its weapons offenses and its handgun-license law in the years since). Treat this page as historical context, not current legal advice. Anyone carrying a handgun in the course of public employment should verify the current Penal Code and Government Code provisions before relying on this analysis.

Who this opinion affected (as of 1990)

The Adjutant General's Department and its public security officers: The opinion confirmed that an officer armed under Government Code section 431.029(12) could carry a handgun while on duty on department-controlled premises without a private security commission.

Officers commuting to work: The opinion told these officers that the on-duty authority stopped at the department's premises, because the "traveling" exception did not reach a same-day trip to and from work.

State agencies with their own armed personnel: The reasoning, that a specific statute authorizing an agency to arm its officers functions as a stand-alone exception to the general handgun ban, was useful to any agency relying on similar statutory arming authority rather than peace officer status.

Common questions

Could this security officer legally carry a handgun at work?
Yes, on premises under the adjutant general's control. The Attorney General concluded that the 1989 statute authorizing the adjutant general to arm public security officers (Government Code section 431.029(12)) created its own exception to the general handgun-carry ban in Penal Code section 46.02.

Did he need a commission from the Board of Private Investigators and Private Security Agencies?
No. Because his authority to be armed came from the Government Code, he did not have to meet the separate Penal Code requirements for privately licensed security officers, including holding that board's commission, wearing a distinctive uniform, and keeping the weapon in plain view.

Could he carry the handgun while driving to and from work?
No. The opinion explained that the Penal Code's "traveling" exception does not apply to a person who leaves on a journey and returns home the same day, which is what a daily commute is, so it did not authorize carrying the handgun on the way to or from department premises.

Doesn't a law enforcement standards license make someone a peace officer?
No. The opinion pointed out that holding a Chapter 415 license from the Commission on Law Enforcement Officer Standards and Education does not make a person a peace officer, so that license alone did not authorize carrying a handgun.

Background and statutory framework

Penal Code section 46.02 (as it read in 1990) made it an offense to intentionally, knowingly, or recklessly carry a handgun, illegal knife, or club on or about the person. Section 46.03 set out exceptions, including a person in the actual discharge of official duties as a member of the armed forces or national guard, a person on his own premises or premises under his control, a person traveling, a security officer commissioned by the Texas Board of Private Investigators and Private Security Agencies who is in uniform with the weapon in plain view (section 46.03(a)(5)), and a peace officer.

The officer in question held a license under Chapter 415 of the Government Code from the Commission on Law Enforcement Officer Standards and Education, but that license does not confer peace officer status. The controlling authority came from the 1989 addition of subsection (12) to Government Code section 431.029, which directs the adjutant general to "employ and arm persons as public security officers licensed under Chapter 415, Government Code," to protect property under the adjutant general's authority and satisfy federal security requirements set by the secretaries of the Army and Air Force (Acts 1989, 71st Leg., ch. 336, § 1, at 1303).

The Attorney General treated the statutory authority to "arm" these officers as an additional exception to section 46.02, applying the rule that potential conflicts between statutes should be harmonized and effect given to each (Ex parte Harrell, 542 S.W.2d 169 (Tex. Crim. App. 1976); Trinity Universal Insurance Co. v. McLaughlin, 373 S.W.2d 66 (Tex. Civ. App. 1963, writ ref'd n.r.e.)). On the traveling question, the opinion relied on the settled construction that the "traveling" exception does not cover a person who leaves on a journey and returns home the same day (250 S.W.2d 795 (Tex. Crim. App.), cert. denied (1953); George v. State, 234 S.W. 87 (Tex. Crim. App. 1921); Creswell v. State, 39 S.W. 372 (Tex. Crim. App.), rev'd on other grounds, 39 S.W. 935 (Tex. Crim. App. 1897)). Because the arming authority came from section 431.029(12), the officer did not have to comply with the licensed-security-officer conditions in section 46.03(a)(5).

Citations

Statutory authorities:

• Penal Code § 46.02 (unlawful carrying of weapons); § 46.03 (exceptions), including § 46.03(a)(3) (traveling) and § 46.03(a)(5) (commissioned security officers)
• Government Code § 431.029 (duties of the adjutant general); § 431.029(12) (authority to employ and arm public security officers)
• Government Code ch. 415 (licensing by the Commission on Law Enforcement Officer Standards and Education)
• Acts 1989, 71st Leg., ch. 336, § 1, at 1303 (adding section 431.029(12))

Cases:

• Ex parte Harrell, 542 S.W.2d 169 (Tex. Crim. App. 1976)
• Trinity Universal Insurance Co. v. McLaughlin, 373 S.W.2d 66 (Tex. Civ. App. 1963, writ ref'd n.r.e.)
• George v. State, 234 S.W. 87 (Tex. Crim. App. 1921)
• Creswell v. State, 39 S.W. 372 (Tex. Crim. App.), rev'd on other grounds, 39 S.W. 935 (Tex. Crim. App. 1897)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1271
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1271.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

December 21, 1990

Honorable William C. Wilson
Major General, TXARNG
Adjutant General's Department
P. O. Box 5210
Austin, Texas 78763-5218

Opinion No. JM-1271

Re: Authority of an employee of the Adjutant General's Department 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;

(5) 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 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, § 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 Education. 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 arm 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 possible and effect given to each. Ex parte Harrell, 542 S.W.2d 169 (Tex. Crim. App. 1976); Trinity Universal Insurance Co. v. McLaughlin, 373 S.W.2d 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 "traveling," this provision has been repeatedly held not to except persons who leave on a journey and return home the same day. [Citation partly illegible in scan], 250 S.W.2d 795 (Tex. Crim. App.), cert. denied (1953); George v. State, 234 S.W. 87 (Tex. Crim. App. 1921); Creswell v. State, 39 S.W. 372 (Tex. Crim. App.) rev'd on other grounds 39 S.W. 935 (Tex. Crim. App. 1897). As a result, the traveling 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

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

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