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".