Could off-duty Texas peace officers or security guards carry guns at a racetrack?

Plain-English summary

The Harris County District Attorney asked the Attorney General two questions about guns at racetracks. Could an off-duty peace officer who was working an extra job as track security carry a firearm onto the racetrack? And could a private security guard carry one there? By the time the office answered, the Penal Code had been revised, so the provision at issue (former section 46.04) had become section 46.03.

Section 46.03 made it a third-degree felony to intentionally, knowingly, or recklessly go with a firearm onto a short list of sensitive places: schools and school transportation, polling places on election day, government courts, racetracks, and secured airport areas. The statute carried only one narrow escape hatch relevant here. Subsection (b) gave "a defense to prosecution" for someone who "possessed a firearm while in the actual discharge of his official duties as a peace officer." The office read that language literally. An on-duty peace officer (including an investigator employed by the Texas Racing Commission) could carry at a track while actually performing official duties. But an off-duty officer working a private security shift was not in the discharge of official duties, so the defense did not reach him.

Private security guards fared worse. Section 46.03 gave them no defense at all, so they were prohibited from carrying firearms at a racetrack under any circumstances. The office rejected the idea of borrowing the separate exceptions in section 46.02(b) (which cover commissioned security officers and peace officers generally) and applying them to section 46.03. Those exceptions, by their own terms, are exceptions to section 46.02 only. Reading them into section 46.03 would defeat the legislature's evident choice to treat the listed sensitive places more strictly than everywhere else, and would absurdly let guards and off-duty officers carry guns into schools, polling places, and courts too.

The office was candid that this result might be an accident. The legislature added racetracks to the felony statute in 1989, apparently to make gun possession at a track a felony, without working through how that would affect routine track security. The office found nothing in the legislative history showing the legislature meant to allow off-duty officers or private guards to carry, especially against the plain statutory text, and it said it had no power to read the racetrack provision out of the statute or to widen the narrow peace-officer defense. It urged the legislature to assess whether existing law allowed adequate security for racetracks.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Texas firearms law has changed a great deal since 1995, including the later adoption of handgun licensing and significant amendments to where firearms may lawfully be carried and to Penal Code section 46.03 itself. The specific prohibitions, defenses, and place list described here may no longer match current law. Read this page for how the office construed the statute as it stood in 1995, and check the current Penal Code before drawing any conclusion about carrying firearms at a racetrack or other location today.

What the opinion meant for those who asked

For the Harris County District Attorney: The opinion agreed with the DA's own reading: under section 46.03, off-duty peace officers and private security guards were prohibited from carrying firearms at a racetrack, while on-duty officers acting in their official duties were not.

For off-duty peace officers working track security: The opinion read the subsection (b) defense to cover only officers in the actual discharge of official duties, so an extra-job security shift did not qualify.

For private security guards: The opinion found no defense for them in section 46.03 at all, so the bar applied under any circumstances; the section 46.02(b) security-officer exception did not carry over.

For the legislature: The opinion flagged that the prohibition might be an unintended result of the 1989 amendment and urged lawmakers to assess whether the law allowed adequate racetrack security.

Common questions

Could an off-duty Texas peace officer carry a gun while working racetrack security in 1995?
No. Section 46.03 protected a peace officer only while "in the actual discharge of his official duties," and an off-duty extra-job security shift did not count.

Could a private security guard carry a firearm at a racetrack?
No. The opinion found that section 46.03 gave private security guards no defense, so they were barred under any circumstances.

Why didn't the general gun-carry exceptions for officers and guards apply?
Because the exceptions in section 46.02(b) were, by their terms, exceptions to section 46.02 only. Applying them to section 46.03 would have undone the legislature's choice to treat racetracks, schools, polling places, and courts more strictly.

Was an on-duty officer allowed to carry there?
Yes. The opinion said peace officers, including investigators employed by the Texas Racing Commission, could carry firearms at a racetrack while actually discharging their official duties.

Background and statutory framework

When the request came in, the relevant ban was in former Penal Code section 46.04; the 1993 Penal Code revision renumbered it as section 46.03 and moved the old general carry rules into section 46.02. Section 46.02(a) generally prohibited carrying a handgun, and section 46.02(b) listed defenses, including one for a commissioned security officer meeting certain conditions and a broad one for peace officers. Section 46.03 separately made it a third-degree felony to carry a firearm onto specified premises, with subsection (a)(4) covering racetracks (added in 1989) and subsection (b) supplying a defense only for an officer in the actual discharge of official duties.

The office's analysis rested on three points: the plain text of the narrow subsection (b) defense; the fact that the section 46.02(b) exceptions apply to section 46.02 by their own terms; and the structure showing the legislature meant the section 46.03 places to be treated differently. It drew support from Attorney General Opinion JM-613 (1986), which had explained that the general peace-officer exception was much broader than the place-specific defense. It also confirmed, via Bohn v. State, 651 S.W.2d 274 (Tex. App.-Dallas 1983, no writ), that private security guards are not "peace officers" under the Penal Code's definition (Penal Code § 1.07(a)(36), keyed to Code of Criminal Procedure article 2.12). The legislative history of the 1989 and 1991 amendments showed the racetrack provision was meant to make gun possession at a track a felony, with the peace-officer defense for tracks added only in 1991, and nothing indicating an intent to permit off-duty officers or private guards to carry.

Citations

Statutory and other provisions discussed:

• Tex. Penal Code § 46.02(a), (b) (general handgun prohibition and its defenses, including for commissioned security officers and peace officers)
• Tex. Penal Code § 46.03 (felony to carry a firearm onto schools, polling places, courts, racetracks, and secured airport areas); § 46.03(a)(4) (racetracks); § 46.03(b) (defense for an officer in the actual discharge of official duties); § 46.03(f) (third-degree felony)
• Tex. Penal Code § 1.07(a)(36) (definition of "peace officer")
• Tex. Code Crim. Proc. art. 2.12 (peace officers; art. 2.12(21), Texas Racing Commission investigators)
• Texas Racing Act, V.T.C.S. art. 179e (stewards, judges, and investigators)
• Act of May 29, 1993, 73d Leg., ch. 900 (Penal Code revision); Act of May 27, 1989, 71st Leg., ch. 749 (adding racetracks); Act of May 18, 1991, 72d Leg., ch. 386 (extending the peace-officer defense to racetracks)

Cases discussed:

• Bohn v. State, 651 S.W.2d 274 (Tex. App.-Dallas 1983, no writ)

Other authority:

• Attorney General Opinion JM-613 (1986)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0327
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1995/dm0327.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain (including footnote numbering) — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

March 3, 1995

Honorable John B. Holmes, Jr.
Harris County District Attorney
201 Fannin, Suite 200
Houston, Texas 77002-1901

Opinion No. DM-327

Re: Whether private security guards and off-duty peace officers are prohibited from carrying firearms on the premises of racetracks by section 46.03 of the Penal Code (RQ number illegible in scan)

Dear Mr. Holmes:

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

May a peace officer, not 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, 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 of May 29, 1993, 73d Leg., R.S., ch. 900, § 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 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) a peace officer,[1] other than a person commissioned by the Texas State Board of Pharmacy.

See Penal Code § 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 recklessly 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 court;

(4) on the premises of a racetrack; or

(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 official duties as a peace officer.

. . . .

(f) An offense under this section is a third degree felony.

[emphases added.]

This section permits peace officers to carry firearms on the premises of racetracks while in the actual discharge of their official duties. Investigators employed by the Texas Racing Commission are clearly peace officers under this provision. See note 1 supra.[2] You are concerned, however, that this provision precludes private security guards and off-duty peace officers from carrying firearms 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 Leg., 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 officers while in the discharge of their actual duties applied to subsection (a)(4). See Act of May 18, 1991, 72d Leg., R.S., ch. 386, § 71, 1991 Tex. Sess. Law Serv. 1444, 1467; Act of May 18, 1991, 72d Leg., R.S., ch. 433, § 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 firearm.

You also conclude that private security guards are prohibited from carrying firearms 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.[3] 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 firearms on the premises of a racetrack under any circumstances. Furthermore, to graft the exception for private security guards and peace officers in section 46.02(b) 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 officers to the general misdemeanor offense for carrying a 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: "[I]f the legislature [in enacting former section 46.03] 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 Opinion 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).

Second, we have reviewed the legislative history of subsections (a)(4) and (b) of section 46.03,[4] 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 off-duty peace officers from possessing handguns on the premises of racetracks. The bill 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 Affairs, Bill Analysis, H.B. 1293, 71st Leg. (1989); Senate Comm. on Criminal Justice, Bill Analysis, H.B. 1293, 71st Leg. (1989). The legislature does not appear to have considered how this amendment would affect racetrack security.[5] We realize that the prohibition against the carrying of firearms 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 otherwise,[6] 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 firearms 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 from carrying firearms on the premises of racetracks 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 racetracks.

SUMMARY

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

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General

[1] The Penal Code defines the term "peace officer" in reference to article 2.12 of the Code of Criminal Procedure. See Penal Code § 1.07(a)(36). Private security guards are not peace officers within this definition. See Bohn v. State, 651 S.W.2d 274, 275-76 (Tex. App.-Dallas 1983, no writ) (discussing former Penal Code section 1.07(a)(25), which has been renumbered as Penal Code section 1.07(a)(36)).

[2] "Stewards and judges employed by the Texas Racing Commission" were "peace officers" under subsection (21) of article 2.12 until 1991, when the Seventy-second Legislature replaced the words "stewards and judges" with "investigators." See Act of May 22, 1991, 72d Leg., R.S., ch. 386, § 70, 1991 Tex. Sess. Law Serv. 1444, 1466-67. Prior to 1991, section 11.01 of the Texas Racing Act, V.T.C.S. art. 179e, provided that the primary duty of "stewards and judges" was to enforce the act, and continued as follows: "Each steward or judge may exercise the authority of a peace officer to enforce any penal provision of law while in the [course] of that [steward's] employment, if the steward or judge is in, on, or about any greyhound racing or horse racing enclosure under this Act." This language was deleted in 1991 and replaced with the following: "The commission may commission as many investigators as the commission determines [necessary] to enforce this Act and the rules of the commission. . . . Each commissioned investigator has the powers of a peace officer, and shall make and [file a] bond as [required by the] commission." See id. § 49, at 1460.

[3] This office concluded that the former section 46.03 exception for peace officers excepted them from prosecution under former section 46.02 regardless of what part of the state they might have been in or whether they were on or off duty. See Attorney General Opinion JM-613 (1986). We do not consider here whether the revision of section 46.02, consolidating former sections 46.02 and 46.03, changes that conclusion.

[4] See House Comm. on Urban Affairs, Bill Analysis, H.B. 1293, 71st Leg. (1989); Hearings on H.B. 1293 Before the House Comm. on Urban Affairs, 71st Leg. (April 25, 1989) (tape available through House Video/Audio Services Office); Senate Comm. on Criminal Justice, Bill Analysis, H.B. 1293, 71st Leg. (1989); Hearings on H.B. 1293 Before the Senate Comm. on Criminal Justice, 71st Leg. (May 23, 1989) (tape available through Senate Staff Services Office); House Comm. on Urban Affairs, Bill Analysis, H.B. 2263, 72d Leg. (1991); House Research Organization, Bill Analysis, H.B. 2263, 72d Leg. (1991); House Comm. on Criminal Jurisprudence, Bill Analysis, H.B. 44, 72d Leg. (1991); House Research Organization, Bill Analysis, H.B. 44, 72d Leg. (1991).

[5] Indeed, the legislature in 1989 did not make even the defense for peace officers while in the discharge of their official duties applicable to the carrying of firearms on the premises of racetracks, see Act of May 27, 1989, 71st Leg., R.S., ch. 749, § 2, 1989 Tex. Gen. Laws 3332, and had to amend former section 46.04, now section 46.03, in 1991 to do so, see Act of May 18, 1991, 72d Leg., R.S., ch. 386, § 71, 1991 Tex. Sess. Law Serv. 1444, 1467; Act of May 18, 1991, 72d Leg., R.S., ch. 433, § 1, 1991 Tex. Sess. Law Serv. 1597.

[6] As noted above, in 1991, the legislature revisited this issue and amended former section 46.04, now section 46.03, to make the subsection (b) defense for peace officers while in the actual discharge of their official duties applicable to carrying firearms on the premises of racetracks. See note 5 supra. It is notable that when doing so the legislature did not amend the statute to permit private security guards and off-duty peace officers to carry firearms on the premises of racetracks.