Case Information
*1 OFFICE OF THE A’ITORNEY GENERAL OF TEXAS AUSTIN
Honorable Homer Garrieon. Jr., Direotor
Department. of Publio Safety
Camp Mabry Austin, Texas
Dear Sir: Opinion No. Q-43
This Is in reap tter o? noent date, from uhioh wa quote th@ r
0r peraon8 who operato oomme aek ii it muld be iawrtil r0 to1 while trans-
er or not, in your ld be allbvmd to ottpry g while he is trans- ok on regular rou$er 6 through several oountiea. I that praotioally every oa8e dViB0 the publio generally. ”
”
. . l .
The artiole oited by you (Art. 484, Penal code) contains the exoeptions to the statute forbidding the uulak tu.l bearing of certain arms. Artiole 483, Penal Code, is *2 Eonorable Homer GarriBon, JP., Director, Page 2 the prohibitory proriaion, and reade as followsr
Whoever shall oarry on or about his person, saddle, or in his saddle bags any pistol, dirk, dagger, Blung-shot, sword cme, spear or knuokles made Or any metal or any hard BUbBtanO8, bowie knlre, or any other knire manufaotured or sold ror the purposee 0r orreaae or defense, shall be punished by fine not less than #lOO.OO nor more than 8500.00 or by oonrinement in jail for dot less than one month nor more than one yearr Aqts 1687, p. 6; Aots 1905, p. 56; Aots 1918, p. 194."
Uhile Article 484, contains the following language: *The preoeding artiole shall not apply to e person in actual servioe as a militiaman, nor to any peaee offloor in the aotual disoharge or his official duty, nor to the oarreng of arms on one.8 own premises or place 0r b\Lsiness, nor to per8ons
nor to any deputy oonstable, or spa&al v po oemen who reoeires ocslpensation 0r rorty dol- lara or more per month for hiB Berrioes as Bueh oifioer, and rho is appointed in OOniOnrity with the statutes authorizing such appointment; nor to the Game, fish and Oyster OommiBsioner, nor to any deputy, when in the aotual discharge ot his duties as euoh, nor to any Game warden, or looal deputy Game, Fish and Oyster Commissioner when in the eo- tual diioharge of his duties in the oounty of hia residenoe, nor shall it apply to any game wardon~ or deputy Game, Fish and Oyster Commisaloner rho aotually reoeires from the !?tate rees or oompenrra- r0F his services. Aots 1871. p. 25, Aots 1918, tion P- 194." {Emphasis ours).
!Phe BOhtiOn or your question, or oourse, depends upon the Interpretation to be given the words of the latter statute as undersoored by us abore. Is a person driving a truck, transporting property on regular routes or speoial trips through several oounties a %rareler"? Ii so, he is not amenable to the punishment presoribed by Article 483, BUprB, regardless of the feat that he aarries a pistol; if he is not a WtrevelerW, he is ameneble and may be convicted and punished as a law violator.
Honorable Homer Carriaon, Jr., Director, Page 3
U!e take oooasion here to allude to earnest sug- gestions made on at least two ooo~sions by the Court of Criminal Appeals of Texas, that the Legislature should either repeal the exemption, or define what is meant by a traveler. See Bain Y. State (18981, 38 Tex. Cr. R. 635 g4Sa V?; 5;,“& Hanoook Y. State (19271, 106 Tex. Cr. R. 66&, . In the latter ease, Judge Lattimore wrote Y. . the roilowing:
"Cur Legislature says, in article 484, P. C. 1925; that *B person traveling*, who oarries a pistol, is not punishable therefor; but fails to define or Bay who is a person traveling, and the courts through all these years have traveled de- routes, going rrom one set 0r racts to Sioux another dirrerent, and on to another, trying in each to find Borne resting place upon whioh might be planted judioial announcement BB to who is a traveler, but alas, have round it not. The an- cient rith hia oxcart, the Mexioan with his burro, the pioneer wlth hiB rOBdleSB route, the modern highwBy, the automobile with its distanoe anni- hilating speed, the inorease of population, the joy ride extending itself in a few hours aver several countlaB, the man really oonvoying Yalu- ablea, and the happy-go-luoky nomad, who spende but a night in each tourist park, and WBnderB on and on forever, all these aid in graying the hair of a oonsoientious court trying to Bay who may or may not avail himself of the exemption of being a person traveling, whioh, by the way, the Legislature ought to repeal or define."
Pfe have read many oases in our errort to aesiat you in determining whether a truck-driver, under Fe ;izum- stances given, would oome within the exemption.
alone are not hermonious, the earlier oaBeB tending to the dire&ion of greater latitude of oonstruotion than those Or later years. The distance covered is not alone the deter- mining factor; the mode of travel and the time required for the journey are elements which have to be oonsidered. Pre- oedents established in the days Or horse-drawn YehfOleB [818] not applicable in this age of sixty-mile per hour automobilee. Kemp v. ttate, 116 Tex. Cr. R. 90, 31 9. W. (26) 652; Grant Y. State, 112 Tex. Cr. R. 20, 13 S. W. (26) 889; Smith Y. Tex. Cr. R. 477, 107 ytg,*g Tax. 464; Hut V. State, . . .
Honorable Holaer Garrison, Jr., Direotor, Page 4
Despite the oonfliots noted, we have found BOIN caBeB whioh may properly be termed aB being analogous to the question y0u present. In Yilliams v. State, Tex. Cr. R. 494, 72 9. W.
380, it was held that a railroad train porter on a regular run of some 150 miles eaoh day wan a traveler and therefore exempted iron criminal liability for oarrying a pistol. The decision aleo asserts that Buoh porter, when on board the train, was at his place of business, and was exempt from proseoution ror that reason also.
In Barker Y. Satterfield (Tex. Cit. App.) 111 s. W. 437, a train auditor was arrested for carrying a piatol while making a trip as train auditor on a paeaenger train, between two points some 300 miles apart. He was arrested while on the train, and brought BUft againet the arresting offioer ror damages, alleging that the arrest ms wrongful, that he wee entitled to crarry the pistol because he wae a traveler and wee then engaged in his business. The Court sustained the auditor's oontention.
In the oase of Eiokman Y. State, 71 Tex. Cr. B. 483, 160 S. V. 382, a merahant derended a chsrge of carrying a pistol upon the grcand that he was a traveler, but the Court disallowed the pretense, the reoord
disolosing that appellant was going out to see hia customers who lived 'within trading distances" of hiB home town. Since this was true the Court said this would not constitute him a traveler within the meaning of the Code.
A driver of a servioe oar, employed to take other parties from Tesarkans to Linden, TezBB, who were told by the persons to whom they talked in Linden to go to Atlanta, TefaB, to see at111 others, and proceeded to then take the asid parties to Atlanta was arrested in the latter city when round with a pistol pushed between the seat oi the car end the oushion. It is 29 miles rrom Texarkana to Atlanta and 16 miles rurther to Linden. Upon appeal the Court of Crim- inal Appeals refused to hold that the driver of the service oar was a *traveY!erv as a matter or law. See Paulk v. State, 97 Tex. Cr. R. 4l5, 261 5. V. 779. From the opinion we quote the iOllOwing:
n . . . It is oontended by appellant that the facts show he was a traYeler. The Legisla- ture has never seen proper to derine a 'traTeler*, *5 Bonorable Homer Garrison, Jr., Direotor, Page 5
and it thereiore becomes necessarily a question of fact to be determined where the issue arises by the judge or jury trying it. In the present case no Jury was demanded, but the matter was submitted to the district judge. He heard the evidence and saw the witnesses, and his finding reileota the raot that he did not aocept as true appellant's alaim that he was a traveler. We think it would be going too far to hold as a mat- ter of law that he was."
In the oase of Armstrong Y. State, 98 Tex. Cr. R. 335, 265 S. W. 701, the appellant waa ehoun to be in the businaas or hauling cotton pickers rrom one plaoe or employ- ment to another, but the Court Beid vðer he was a traveler was a question of faOt, end refused to disturb the tinding of the inferior oourt.
You are oertainly oorreot in your statement thet cpractioally every oaae would have to be determined upon the facts as they exist". We oan oonoeire of cases of the oharaotep mentioned by you where the distance owered, the mode of travel used, and the time required would be such as to warrant the OontrlUBiOn a defendant would be en- that titled to the exempt$on as a traveler. On the other hand, where a person drives his truok short diatanoea, and returns to his home daily, we do not think the COIUtB would Benotion the claim to exemption. So fBr as we have been able to rind, the Court of Criminal Appeals has not laid down an unvarying rule to rit every instanoe. Surely, the Legislature has not heeded the Court's plea ior amendment derining the term vtravelerc, nor repeeled the exemption.
We regret our inability to give you a better ori- terion to guide you in determination of the question with whloh you and other peaoe oftioers, proroseoutora and judges generally must oonstantly be confronted.
Yours very truly ATTORJy25GRWERAL OFTEXAS @* njamin Wcodall Assistant