AEZ C.S.H.B. 311 75(R)BILL ANALYSIS


CRIMINAL JURISPRUDENCE
C.S.H.B. 311
By: Place
2-26-97
Committee Report (Substituted)



BACKGROUND 

Prior to the 1993 rewrite,  46.03 Penal Code used "non-applicability" for
various exceptions to 46.02, Unlawful Carrying Weapons. Currently, 46.02
states that carrying a handgun, illegal knife or a club is a Class A
Misdemeanor, but the long recognized exceptions are now termed defenses to
prosecution.  


PURPOSE

HB 311, as proposed, will return the defenses to prosecution to 46.02 to
the "non-applicable" language. 

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any
additional rulemaking authority to a state officer, department, agency or
institution. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Section 46.02, Penal Code, Unlawful Carrying Weapons,
by deleting the defense to prosecution under this section. 

SECTION 2.  Amends Section 46.03(b), Penal Code, Places Weapons Prohibited
by deleting peace officer from this section. 

SECTION 3.  Amends Section 46.15, Penal Code, Nonapplicability to Peace
Officers by deleting "to Peace Officers" from the title. 

 (a)  Sections 46.02 (Unlawful Carrying Weapons) and 46.03 (Places Weapons
Prohibited) do not apply to peace officers and neither section prohibits a
peace officer from carrying a weapon in this state, regardless of whether
the officer is engaged in the actual discharge of the officer's duties
while carrying the weapon. 

 (b)  Section 46.02 does not apply to a person who:
  (1)  is in the actual discharge of duties as a member of the armed
forces or state military forces, or as a guard employed by a penal
institution; 
  (2)  is on the person's own premises unless the person is acting in the
capacity of a security guard in which event the person must comply with
Subdivision (5); 
  (3)  is traveling;
  (4)  is engaging in lawful hunting, fishing or other sporting activity;
or is en route between the premises and the person's premises; 
  (5)  holds a security officer commission issued by the Texas Board of
Private Investigators and Private Security Agencies if: 
   (A)  the person is engaged in the performance of the person's duties as
a security officer; 
   (B)  the person is wearing a distinctive uniform; and
   (C)  the weapon is in plain view
   (6)  is carrying a concealed handgun and a valid license to carry a
concealed handgun; 
  (7)  holds a security officer commission and a personal protection
authorization and who is providing personal protection; or 
  (8)  holds an alcoholic beverage permit or license.

 (c)  The provision of Section 46.02 prohibiting the carrying of a club
does not apply to a noncommissioned security guard at an institution of
higher education who carries a nightstick or similar club, and who has
undergone 15 hours of training in the proper use of the club, including at
least seven hours of training in the use of the club for nonviolent
restraint.  For the purposes of this subsection, "nonviolent restraint"
means the use of reasonable force, not intended and not likely to inflict
bodily injury. 

 (d)  The provisions of Section 46.02 prohibiting the carrying of a
firearm or carrying of a club do not apply to a public security officer. 

SECTION 4.  Emergency Clause and 

COMPARISON OF ORIGINAL TO SUBSTITUTE

Section 3 of the original bill, amending  Sec. 46.15(b)(4)(Penal Code)
stated that Section 46.02, Penal Code did not apply to a person engaging
in lawful hunting, fishing, or other sports activity on the immediate
premises where the activity was taken place or is directly en route
between that premises and the person's residence.  The substitute deleted
the word "directly".