Untitled Texas Attorney General Opinion

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OFFICE OF THE AT~dR~iiliY ~GENERAL OF. TEXAS AUSTlN GROVER SELLERS ATTORNEY GLNLRAL 5

Honorable perry L. fonee county Attornry ~..warie county Austin, TeXtW Dear

y0Ur -letter or r8- cent data requea to savaral ques- tiolia,rhioh PR)

ptlona ~4~ptivi&38, olr ‘483 shall not oonstable, or SQPS- 61 a OOlapMsdtiOA Or r month ror hia aenloes f# appOfAtOd in OOAfOrm- tutee au#iho+ing woh appoint- *spsalal COAstable* or r4eQutJ is pafd jiC.00per. Aght by tm keepfag order in h night olut, nothing by the ootmty, ba legal- ly SAtitkid to oarry a' pistol, a8 one oomiD8 within the quoted eXc9ptioA? 2. Eay suoh *special constable-, or *deputy constable* be lawfully paid by a private ‘indi- vidual,’or must he receive his oom?ensation as such oifioer from the oouiztyor tbrougfifees of orfice?

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Honorable Parry L. JOANN, Paw. 8

5. II it legal for a de uty oonetablr to ao- oept money for keeping order f A a night olub dth- Cgt tUrA.bg said money into the GouXty Treasury, even though he giver the raid night olub more of blr tlms and attention than is required in the 00UrBa Of hlg dutier a6 deputy constable, ard al- though he ia paid nothf~g by the oouaty?

4. Otiy ona dapputyoonstable in Trarir aountp 14 reoelring a salary from the oounty ror hlr remloe8 aa suoh ofrloer. xmerer four ?r e- oial deputy ooAstablesa have been appointed a f+ wove& .by the Oomniadonerr* court, in’aooord- am* with.Artiole 6879a, T@rnont8 Annotatd Uiril Statutea, said deputy ooonatablaereoefring no salary, although they do reoeits atore than forty dollars per month from private iAdirldual.8to keep order in night olubs. Are these *6Jeolal deput oonstablesn legally permitted to oarry Plato r8, under Article 484, supra?

5. Assting that operators of a drug StOra, groowy store or other burrfaeoemust take large suas of aoney to the bank, and a6 a praotioal mat- ter the sheritr~r department nor the polioe dr- paz&eAt OaAAot rovids aA armed eaoort, MY tuoh oparatorr or the!r eaployeeeslegally am them- soltee with pietola for the purpose of prqteotiw the money while it is so oonveyed to the bank?

6. Article 48s of ,the Peaal Code OOAdetDnS th6 aarryiing0r arms in oertaln aeserablise. I8 a'aight olub where,people assemble to drink beer, daAoe, suoh a plaoe ot assembly or aAd 8onti3tlmes amusement as 'tooome Wer the provisions of suoh AlMole?

7. KOUld the type oi offioer referred to iA queatlon 1, above, ooffie within the provisions Of Artiole 485 ii he carried a pistol in a llrghtolub suah as is desoribed IA questiOA 61

8. Could even the Owner OS suoh.tight olub, a8 desoribed in question 6 ,legally arm himself or ..~ an agent to keep order iA suoh 'ep assembly? ]

Honorable Parry L. Jonea, Page 3

- 9. 18 a hotel lobby a plaoa of assembly aa oontamplated by Art1010 485, Penal coda?

10. It the aAnwar to question 9 ia in the aiflrrnatlra, oould the hot.1 management legal1 an a hotel deteotim to keep order In ruoh loi; by?

Your iiret quertloa lnrolve8 s8varal.oonaIdarations. In the flrat plaoe you IWfOr to a rspeolal OOArtablow. What 18 a lrpeoial oonrtablam? *a statute raiarra to (Art. 484, Penal Bode) 8~aoIiIrr a *aDeolal polloeaan~ ~bue "daputr OOA- V~ ti?) #tablo*.

Mext, 10 note tb language of the Artlolr under ooAsid8rat~oA. Aa OOdiiha and AOw EitOAdiAgUpOA Our Stat- ute books as Article rL84,Penal Coda, the partinant provi- alons read a8 r0110w8:

npho preceding artiole shall not a ply to .. .. .. any ofrloar IA the aotual $P soharge eaoe ofrloer Offf olal duty, nor to the oarrying or OS No off Of arms On one'9 own pramI or plaoa of bualmss, bualmas. nor to peT;~'I~f t0 pa~;i;tf tri:;;;z, "?;;a;~, AOr nor-toto any deputy oonatable, ooiMable, or ag PO who reoelvae reoeitae a oompansatlon of forty aollara or more par month Sor hi8 88x-v- 'ioes at3 euoh ofrloer, aAd who Is appointaa.in oon- 'Iormlty with the statute8 authorlzlng Buoh appolnx- mant; l . .” ( El!lp na a lc l Our 8. )

Prior to the oodlrioatlon of 1935, the above artl- 018 war known aa Artiole 476 or the Penal Codr of 1911; It was amended by the Fourth Called Sessi~n‘Of the Thirty-fifth Leglalaturb (Acts 1918, Fourth Called Sass. C. 91, 31; 19 0. L. 1941, and a8 than raanaotad read a8 iollowe: *The preoadlng artiola shall AOt apply to any paaoe ofrloar In the actual discharge &*hia orflolal duty, nor to tha aarrying of anus OA OA8'8 Own pr8miS9s Or place Of bUsIAaS8, nor to persona travalllng provided. this arcaptlon ahall not apply to any deputy constable, or epe- olal policeman who does not racalva a OOmpansa- %lon of forty dollars or more per month i'or his earvloas aa ouch officer, and who la not appocnted ‘in OOArOrmity wlth tha statutes of this Stat8 au- thorlzlng such appolntmaat; . . .v (Emphasis ours.)

I.:,:

Honorable Perry L, Jones, Page 4

As reoodlfled in 19e5, and an it stand6 today, does the statute require & deputy aonsteble, in order to oome wlth- in the exoeption, t0 *reoelve a oompsnsatlon of forty dollars or more per aonth for hi8 servl~ea?~ Another lnoldental quretlon oonoerns the authority o f a privateo itizento e& p lo y eith e ra lapeoial* or a *de- puty ooastablea to keep order la a nlght olub, and to pay the ma of $4.00 per night (or any sum) ror suoh re~loee. The only referrnoes we find in the statute8 to as e- oial oonstablerw, ae suoh, are round in Artloles 108 and 1I&- -e Oode of Criminal Prooedure. They may be appointed by any magistrate, only to *suppress rlotr, unlawful aesemblier and other disturbances at eleotions*; when duly appointed in aooordance with th4 provlslona of the olted artloles of the Code, they ham all the power6 Of peaoe Oifioeks generally, for the limited purpose tor whloh they are appointed. Con- zales v. state, 55 Tex. Cr. R. 430, 110 S. 8’.740.

We find no allusion in the Codes to the term *e olal deputp oonstable. The Leglelature has attempted to thorize *apeoial-deguty aherlrrsr In qertaln counties (Art. iii121-3, 12 ‘Vernon@e Annotated cfvll Statutea)t but we rlntl no leglelative eftort to orsate or authorize suoh apeoial I otrloers to serve with or under oonstables, We do know that there is provlslon ror the deslg- nation or persons other than regular oitloere to serve pro- oess and warrants or arrest in certain oases of emergenoy and on at leaat one oooaslon the (Arts. 231, 888, c. c...;p..); person 60 named was denominated a *deputy oonstablen (Ste- phenson V. State, 93 Tex.’Cr. R. 578, 249 9, W, 492). The cited case holds that gftlzen$IappOint8a under these statutes oan lawfully oarry a pistol while 80 engaged. Bowever, we do not thlnk these statutes are pertinent to your problem. ArtiOh 484, supra, speoiflea tba exenptlon rrom prosecution ior unlawfully boarlng arms, lnsotar as the ot- ricer here alluded to 1s oonoerned, to a *deputy oanatable”. Irrespective oi the applicability of the clause, *who ie ap- pointed in conformity with the statutes authorizing suoh ap- pointment*, as contained in such statute, we think such would have been contemplated. Xn other words, where the artlole uses the tern *deputy constablee, one who h.asbeen duly and legally appolnted, qualified and is aotlng as suoh, is oon- tesplated, and is intended to have the benefit of the law.

45 Honorable Ferry Lo Joneg, Page, S’ ..,A _.:

ALthough Article 484 Penal code, 1925, supra, rrtanaingalone, may be rusoeptfble ot construotlon as to whether- the undereoored portion with referenoe to reoei~ing compensation ol forty dollars or more.per month ir applloa- ble to a deputy oonstable, we think the 1eg;islatlvehistory of the act olearly indloater that it 1s. Notesthe under- soared portloa or the amendment 0r 1918, suqra. See Stephen- son vr State, 93 Tex. Or; R. 570 249 5. WI 492, a~pra, where- in it is ‘pointed out that the evident purpoee oi the amendment was to dlsoourage a5l prevent the useless add proalrououa oarrylng of aims under the guleo of speoolaldeputies. Also, ;;in~~~O-b372, Attorney deneral of TexaC, approved~January 1 l j, ‘... “:

we hereby~‘reiterateth’elanguage of our raid Opln- ion O-6372: *The provisions contained in Arti 484, Vernon’s Annotated Penal C~ode,regarding compen- aatlon or )40.00, or more, per month, is appll- oable to deputy oonetablea and speolal po$ioemen, . . .* In our Opinion No. O-773, to which you referred in your letter submlttlng the above questione, It Is stated1

“. . . it la the opinion ot this department that a dep’utysherlit who preserves the peaoe at a publio oelebratlon and danoe would be .aoting within the scope of hle ottioial duties and would not be entitled to receive extra aompeneation from the oounty or iron thtra pereona, a different, or a greater or less oompensa>lon ror his ofrloial servloes than that whloh has been presorlbed by law.* In the ease of the question as submitted by YOU, we express our opinion that either a *apeolal* or ndeputyW constable, oonoedlng his appointment to be legal, would be charged with the oi’flclalduty to preserve tinepeace, ii Freseot 11:a night club, and as such officer, he uould not be authorized to receive .,;4.00 a riight, nor any otbr sum as compensation from an individual “for keeping order in a Light club”. 34 Tex. Jur. 534, 1117, and casea olted. The compensation of public officers must be fixed by the Legls- izture or by some governi% body exptesely authorized so to First Saptist Church v. City of acrt S’orth, (Tex. Come. $) 26 2, :;, (2d) 196, afflroing judgment (Tex. Clr. App.)

,,a” 3. -2, (26) 130. I

~,’ 46 Honorable perry L. hones, page 6

In view of our erpreseioru above, wfilshwe bellerr are amply supported by the authorities, ou are aahba that it 18 -our opinion that a nepeoial oonsta1:lea or la ep uty eoA- stable* keeping order in a night olub urder the oiroumstanoes recited ia your firat uestion, a8 a mtter or law, would not oome within the q&ept Pon8 and exemptions preearibed by Art- iale 484, Eenal Q&W Bupra, ‘should he be prodeeded against for unlawfully’o$Zrppingthe aI& prohfbltod by Artlolr 483, Penal Code; ‘. Y0Ur seOOnd qUS8tiOA has been partially’OOhelaerea above, For ofrioial duties,ruoh oMioer would not.be OP. titled to receive aAy comQonsatfoA other than that,whleh has beeA protiaea by law. 84 Ter. Jurr 534, mpra. pr any other duties, AOt ooming rithtn the soope of a p-04 ofiieer, oi oourse, thp oorapensationwould be a matter 0r privatr OOA- traot. But rhen a disturbanoe of the peaoe beoame imminent or aotual, if’.an ortioer, one la oharged immediately with a apeoifio duty to preserve the peaoq. See Artlo 37, Code of Criminal Frooedure, 1925. Xhile it is tiue that ArtiOle 38, c. c. P., in derlnlng peso8 oiri0ers statsa that a OOA- .atable is suoh and’omits any referenoe to a deput eonatable, in ‘#&laon V. State, 117 Tex, Or. H. 63, 38 9. B. T26) 733, it 1s pointed out that @iale 36 waa enaoted lor\gprior to tha time that provlelon was made tor the appolptmant of a0- puty oonstabler, and the ease oontalne this st,atetintl 1. . . We think it was the intention or the Legislature iA providing for the appoidtment of deputy oonstables to impose upon suoh Ofricer ths duties required or peace officers. ft each were not the oaae, the oitil statutes to tiloh referenoe has been made are without eifioaor. .* (ReterrlAg to the statutes providing ior &uty oonstabler.)

Your third questlon le also partially covered by the dl ecusdon above. However, merely because one 1s a deputy constable, he would not be re-,llired to give all of his tine to the duties or the ofrice which he holds. In our Rplnlon No. O-5091 it was held that a oofietiblaon a salary basis could draw his Salary as constable,;although he was also employed by a Rail- road as a trainman. ‘It is well known that many peace offioers, eepaolally precinct ofricere, must eutiplemanttheir offlola].

honorable p*rrp 1. Tonea, Pa&‘9

lAoome8 with earnLAg derlrea from non-governaaeatalaotlvl-’ tieo, 4116 80 10% a8 the hold themselves available at all tlmeer for whatever otiioIal dutisr that mi ht.oome up, r8 8ee DO legal obstaoler to prevent their a0 & ~g 60, pr0eaea suoh employMAt does Aot antail aotlvitier inooasistent with theit offioial dutl68. xA OSOO Oi AeeleOt Of OffiOiai duty, the law provides a remedy. se Title 100, Revlsod 01~11 statute8 ~r’iwas, 192s; l 0ffidert--~eAoval or*, 8.Aa ease- oially hrtiole8 S970; b9-73,et 8~3~ AS Jour question is stated, v~ do not believe the deputy ooA0table 00ua legally be paid by private inairiaualr order iti~ralght olubv. xi. a8 already 8tated eputy ~eonstablr ma8 pmseat 111a atLight olub where a dli&rbanoe aotually OOb~tieil or w&8 i~$If@fag he~~d~l4 have dAjOiJ@a on him byelaw a.*fear and ilirtilwt iutf t8 sot in hi8 Official Oairacity‘t0 preserve the peaOOr If the OOULL- ty of hia appolntmeat, -and wherein the night olub lo rltuated, payr it8 preotnot of’rioerson a salary basis, suoh beputy rould be bound, IA event 0s arreat aa eoAvlotioA 0s any of- fender, to collect the rtatutory fees for hir aervioe8, from the defeodaat, and through his prinoipal, t& constable, to remit said ieet# to the Ofricerr~ Salary yund of the oouaty. If the oounty hapkened to be paying its preoinot orrioera ,on A tee basis, the prinoipal, Constable, would be sntltle4 to the fee8, subjeot to aodounting at the 8na or the year. In * Aeither event would the operator at the Aight 01~8 be liable for tb8 fee (unlem he happened to be the ooavioteb aerenaant), nor ooula the orrioera, or the ooucty, prooeed against him to oolleot it. 1f the OOUAty pays it8 preolnot orrtaers OA r 8al- ary basis and the oommisaiollbro* court authorizer the appoint- ment and aooepta the servioeu of a deputy oonstabla, and flxe8 no salary ror auoh otrloer, he ie not legally entitled to look to private souroes for oompensatiod for periorming his otriolal duties. The zuthod of a polntment e ml the ooapensa- tion, if any, to be pala auoh offE oera la fixed in .Wtioles 3902 and BBWa, Varl;on*s ?&notated Civil Statutes of Texas. ‘ Xith reference to such aalarles, it la noted that the law ~ovides a mximm or *oeilingn bayor&d+.vhfoha oollabgor pre- oinot ofricer may net ~50,but d&s not presorlbe a rninlm~~~ or ~rloorv. It, for performing ah offioial duty, the deputy constable does oolleiot compensation rros, a private source,

Ronorablr Perry L. Joma, Page 8

ruch aa a night olub operator, he Is doing that whloh Is um authorlze?land Illegal, but whatever may be the outoome of any proceedings brought against him for suah aonduot, the oounty cannot oollsot the money and therefore the offioer oonoerned aould noC be oompelled to “turn said mouey into the Oounty Treasu+. YIth refersnoe te your fourth questloo, we again note the expression or term aa eoial de uty oonatablea~. see ow diaouesion herelnabov8-Tal thL A@ the question is stated, we express the oplnlon that the pUQO4ted OfiiOtW0 in qUfJ8tiOfIa0 ~0% OOIbIO Within the forty dollar (#40.00) ooupenaation exemption, Thir for the reason* also dlaouased above, with rererenoe to prlv6te employnent 40 perform offioial duty. It will not be Ino&bent on,you, as oouaty attorney, to negative or otherwise antlolpate defenses, but we feel it proper in thle oonheotion to rerer you to the line of case.8 be.aringon the defense that the aoouaed believed or had rea- son to believe that he was an oftiaer and had the rfght to carry a pistol. gee ior example, the Oases of Lyle T* State, 21 Tex. cr. R. 153, 17 3. iV.4251 Cferoll VI Sate, Terr Cr. App., 57 3. V. 94; Blair v. State, 26 Tex. Or. x* 387, 9 3. w, 890 and Barnett v. State, 89 Texr Cr. RI 48 229 2. We 619. However, a mistake of law Is no defe1188,ad in-oases whiah we feel more almllar to the one0 of whloh you Inquire, appll- oatlon ot the aorreot prlnolple will be found in fohnson vb Sate, 73 Tex. Cr. W. 133, 164 3. V. 833, Patton v. 3tate, 61 ~61s.cr. R. 352, 135 9. #,- 556; Ransom 'I.State, 73 Tax. Cr. R. 442, I.653. s, 932 and Gandara V. state, 94 Tex, Cr. R. 535, 252 3. 6. 160. In view of the last olted caae~, we are lnallhed ta the view that in a case suoh as you mention, say such defense, if interposed, would be held inagplioable and inadzlssible a8 a Viatake of lnww.

you fifth question is answered in the ne,<atlve. Nothing in the srceytioaa statute (-Art.4E4, =. C., supra,) makes suoh a state of facts a defense. Aa to your sixth question, the oourta do not seem to have sassed directly upon the question of Ahether 9 n&ht

: 49. ”

olub’,ar ruah~ 0-1 within the statute, we quote Artio1e 485, Penal code,

,-xi any pereon ahall g0 Into any Ohuroh or any religious assembly, any sahoolroom, ballroom, OS other plaoe where persons are assembled for amueefient or for educatlonel or aolentlflo pur- ~0868, or into any oiroua, ehou or pub110 lxhi- bition of any klnU, or social gathering, or to any eleotlon oa the day or ‘days ot any eleotion where any portion of thd poop10 of thle state are aolleoted to fote’ab an elsotlon, or to any other plaoe *wh6fe ople nay be aosenbled to nustor or perform any r thee publfo dutleti,and ahalA Bare or oarry about hia person any I.stolor other firearm, dirk, da er, slung sRot, aword cane, zear, braaq knuo% e, bowio knife , of any other nG of a knife made and manuiaoture# foti the pur- pose 0r orrenee end aerense, he shelf.be flned not less phan one hundred nor more than rive hun- dred dollare or be oonilned In jail not lese ‘Taft;’ thirty bays nor more than twelve months, or . Aota 1871, p. 25; Acts 1915, p. @L” It ~111 be noted that the penalty la In suhstan- tially the came language and ia the esme a@ that provided in the general statute against oarrying prohibited arzae,Arti- 010 483, gene1 Code, supra. The gist of the orrem oorered in Artiole 4.85, lupm; is the carry& of a prohibited reapon into an %a- sembly ‘mentioned in the statute 8Dd there must be an aotual assembly of poogle at the time the weapon 1s 80 carried, Cassels v, State, 108 Tex. Cr. R. 477, 1 3. %. I2d) 644; Ralney v. State, 8 ?ex. Ur. X. 62, 34 Ann. Rep. 736; Owens 7. State, 3 Tex. Cr. ‘i.404. It would seen olear that an assembly au04 aa you cention would COW rlthln ttnt ?art ot ths statute detlnlng the assemblies covered as a “place aSere persona are assem- bled for aausezent” , or tbst cost certainly such an aasen- blage :would be a “social gatherfng”. If the weapon be oarrled into the e.ssezblya-P.iloL,anolngwas going 511,we think olearly the statutory word WballroonP ;vouldbe applicable.

50 Honorable kerry L. Jonee, Page &O

In Owens v. State, slpra, an lndiotment oharefng the offense to have been committed in a ballroom till be understood to mean a place where a aOOfa1 gathering oomposed of men and women were engaged in danoing and it is not even neoeeararyto allege that danolng was going on, this being a m.adr or poor. The court rurther etated that th@ indlot- ment was good in the oharge either that the offense was eom- mitted in a wballroom" or at "a eooial gathering*. ~6 af- flw that suoh a plaos as you doeoribe in yooursixth quo&Ion would come within either Artiolb 40S or 40s a# a plaoe where the unlawful oarrylng of weapons ilrprohibita& Consideration or your seventh quertlon imp&~ notloe oftthe language or Artiole 486, zenal Godo:

@The preoedi& artiole (Art. 4t#,'&~naLaodi) shall not apply to peace orfloere or other prama authorfeed or permitted by law to oarry.rnar at the plaoelrtherein designated.* It will be noted that ths exqaiitioneBen enumqf- ated are not ae numerous a8 thore mentio&ed io.Artfole 464, nupra, 15 regard to'the orlmciof wilawrtnliy carl?yingarm generally (Art. US, atp*a). However, the ‘limltat$on doea not deem to be so striotly applied to pea00 ortiseas. .Wherw- as Artiole 4B4 prwides proteQtion to thm peaoe off&oe.ra %A t,heaotual dieoharge or oifloial dutiss* utQ~~dorr.eot. within thi .roeBtLon, include'deputy 8cnetkibleior r~.ofai pollo~~n~,,~o~reo~ive lees~thn rorty dollar8 pur moobh eqr- penaatlon, it ha@ b6en held under Artd~ola406 th&t,it wf L not incumbent UpOA a' apeoial polloeman to chow that he wall then and thare in tb6 disoharge of his &tie8 me #uoh. Wll- liaiusv. State, +I3Tex. 466. 'We bellare, however, that Artiole 480 would have to be read in the light of Artlolae 4815atid484, and that the Willlame ease would require reoonsbderation,ein~e the amend- ment to the law in 1916 inoorporated into what is now AFti- ale $84 the requirement that a peaoe officer suet be *in ths . actual dlsoharge or his orflbial dutr at ~ths time or oarry- lng the weapon.. fn other worde; we think the words *author- ized or perdtted by law to oarry arme at the places therein designated" would be oonlrtrued to rerer bask to thq g6noral exemption statute, Artiole 484, aa the +law* referred to in said Article 486. .

Btonorableperry L. ~05~6, Page 11

Therefore, you are advised that it is our opinion that *apeala oonstabl6s* or "deputy oonstablee6 rererr6d.to in your firet question would not oome within the exoeptlona to Article 4235ae speoiried'in ArtiOle 486, for the 6am6 rea- eona oonsidered in our answer to your first question. Your eighth quuestion Is answ6red in the negative by virtue oi the expression8 of the C,ourtof Criminal Appeals found in Alexander v. State, 27 Tsx. Cr. R. 533, 11 S. W. 6RS; Owens v. State, 3 'Per.Cr. R. 4C4; Brook6 v. State, 15 'per.' Cr. B. 88; ~05605 t. State, 48 TBI. cr. B. 484, 74 8. w. 570; Miohols V. State, 43 .S.W. 404; Gibbs v. State, 70 T6x. Cr. R. 878, 156 S. W. 687; Oasssis V. State, 108 'Tex.Or. R+ 477, 1 S. Pi. (2d) 644. IA the last oas6 cited, Judge Eawklna of the present oourt said; ~6Theowner or orroupantor a hou86 whore p60- pie are asse,mbledIn a social gatherIn& may bo guilty or there oar@.5g a pistol odler the pro- vl,6io56of Art1616 485, 2. 0.; h65ee uader the fact6 proven th6~oougt refuaad appal- lant.8 epeotal oherg dlreoted~sa aoqtittal if he was ln his own horn6at th6tim6 h6oarried th6 pistol.. ~(alting~easss.) With r6f6r6506'to your ninth question, w6 have oare- fully ooneidske$ th6 propodfion of whether a hotel lobby oomea within the typ6 oi assemblage oovsred by th6 &tatute. we have ooiaeto the oo5olualo5 that it muld not I #IItaoto i; ;rb a plaoe; but natufally oonditione could ar -!hmizki) 56. Certainly a hote,llobby ie not a ohuroh, abhoolroom, ball&om, or olrow, show, or publi~oexhibition ar meant In the article. X6 do know that persons could very w611 a#- eemble there for r6ligiou6, eduoational or soientirlo pur- posee. Inaeed eooial gatherings ar6 fntquantly held in hotel lobbies, and it require6 50 vivid Imagination to vieuallze people assembling ther6 to perform public duties. Suoh mat- . ters would be susoeptible to proor; if the Stat6 should prove 6uiflol6nt faote, a hotel lobby would oome ?&thin the law. Reoause of the possiblllties, we do not attempt to oat6gor- ioally answer your ninth qusstion. Your tenth and rinal questionis aa to the right of a hotel deteotive to bear the prohibited arme while 05 duty. As stated, if within the hot61 lobby there was a pub1i.c%6- semblage under the olroumatancas dieousaed in the preoeding I paragraph making said place one withI Article 485, the hot61

52 ,k Honorable kerrj L. 50566, kage 12

deteotive would 00m6 within the rules laid down by the oa666 cited in answer to your ei hth question, and h6 would be -enable to proseoution. ff the,hotel lobby did not, in faot, come within euoh definltio5, under the authority and limitations a6 announced in Robison v. State, 103 Tex. Cr. R. 141, 280 S. w. 776, we are Of the opinion that the de- teotive oould bear arm. With reierenoe tO a night watoh- mailfor an oil company, the court said:

Apppellantwa6 emppleyedby the Big L6ke &'&mpc%ny a6 a nlgh$ watohman. We h6V6 no doubt of his right to oarry a pistol aurlng the hours and at the plaos or hi8 SaLd employment. . . . Appellant teetlfl6d that'lt was hi8 busilre*~s't~ watoh the 6omp6ny*s property at night. V6 are.oi oplni05,that app6llant*e right to oarry th6 pistol only .Iay~wit~lnthb boandrs of hle eraployrPsnt.and during the hour8 that hs wae 05 duty. Lxlrlng'.euoh houro'nr,thiak he wae exempt under thclaw, but that ne-had no right tQ orafm ld tion whsn 86oklardund the town and oil- Image~?!~!~xoA in the daytim6. He doss AOt a~hdm that he had any su$Ndu$i66 witlilnhla elqploy- m65t, or that h6 ~6 engag6dz~~.n any ~Offlo~ial duty at :@m tima .heowes aeeA oarrying tlm pletbl.~ (~pbasis ours.) We trust th6.tthe abOv6 ~4txpo6lt~o5 oi thb ]ar ap pl&oable'to prohfblt6d‘w6apon6 dll prwe 30 Abe of benefit to you, aM the@ it aaequately~656lrarsall or your questions.