Mitchell v. Purolator Sec., Inc., B--4544
| Decision Date | 30 October 1974 |
| Docket Number | No. B--4544,B--4544 |
| Citation | 515 S.W.2d 101 |
| Parties | Johnnie H. MITCHELL et al., Appellants, v. PUROLATOR SECURITY, INC., Appellee. |
| Court | Texas Supreme Court |
Franklin L. Smith, County Atty., Thomas R. Bandy, Asst. County Atty., James R. Riggs, City Atty., Gerry Miller, Asst. City Atty., Corpus Christi, John L. Hill, Atty. Gen., Lewis A. Jones, Asst. Atty. Gen., Austin, for appellants.
Strasburger, Price, Kelton, Martin & Unis, John H. Marks, Jr., and Royal H. Brin, Jr., Dallas, Keys, Russell, Watson & Seaman, Louis W. Russell, Corpus Christi, for appellee.
This is a direct appeal from a temporary injunction in favor of Purolator Security, Inc., appellee, an armored car common carrier, against the appellants, Johnnie H. Mitchell, Sheriff of Nueces County, and other law enforcement officials. The trial court's order temporarily enjoined the appellants from applying and enforcing the prohibitions of Sections 46.02 and 46.03 of the Texas Penal Code, V.T.C.A. (the 'handgun' law) against the appellee and its employees.
At the threshold we are confronted with the question of whether this appeal is one which falls within the very limited direct appeal jurisdiction of this Court under Article V, Section 3--b of the Texas Constitution, Vernon's Ann.St. and Article 1738a of the Vernon's Ann.Revised Civil Statutes. 1 For the reasons hereinafter stated, we have concluded that it does not.
The appellate jurisdiction of this Court is generally restricted to appeals from the intermediate Courts of Civil Appeals. A limited and restricted exception is contained in Article V, Sec. 3--b of the Texas Constitution, as follows:
'The Legislature shall have the power to provide by law for an appeal direct to the Supreme Court of this State from an order of any trial court granting or denying an interlocutory or permanent injunction On the grounds of the constitutionality or unconstitutionality of any statute of this State, or on the validity or invalidity of any administrative order issued by any state agency under any statute of this State.' 2
Under the above constitutional authority, the legislature adopted Article 1738a, as follows:
The appellee, Purolator Security, Inc., a Texas corporation, operates an armored car service in various counties of the State, including Nueces, for the purpose of transferring coin, currency, and other valuable personal property from place to place, using the public streets and thoroughfares. According to uncontroverted portions of its sworn petition, Purolator services federal reserve banks, national banks, and state banks whose funds are insured by various federal agencies, as well as numerous business establishments which need to transport and receive large sums of money. In the past its armored car operators have armed themselves with handguns. Purolator alleged that this practice by its 'highly trained, well paid, and fully bonded' personnel was necessary to insure the safe delivery of its transfers of valuable property and to deter robbery and other crimes, to all of which the appellants offered controverting evidence. Purolator alleged that Section 46.02 of the Penal Code, forbidding the carrying of a handgun, did not apply to its employees while on duty traveling or on its own premises or premises under its control; that if it did, the law was unconstitutional; that the appellant officers in Nueces County had adopted a contrary interpretation of the law and had advised Purolator that, beginning January 1, 1974, they would arrest all armored car personnel who carried side arms or handguns while discharging the business of the company; that the proposed manner of enforcement would result in irreparable injury and damage to its business and to the security of currency, coin, and other valuables being transported from place to place in the ordinary course of commerce; and that it had no adequate remedy at law to protect its business from being destroyed by the threatened arrests.
The relevant portions of the Texas Penal Code, effective January 1, 1974, provide:
'Sec. 46.02. Unlawful Carrying Weapons
'(a) A person commits an offense if he intentionally, knowingly, or recklessly carries on or about his person a handgun, illegal knife, or club.
'(b) Except as provided in Subsection (c), an offense under this section is a Class A misdemeanor.
'(c) An offense under this section is a felony of the third degree if it occurs on any premises licensed or issued a permit by this state for the sale or service of alcoholic beverages.'
'Sec. 46.03. Non-Applicable
'The provisions of Section 46.02 of this code do not apply to a person:
'(1) in the actual discharge of his official duties as a peace officer, a member of the armed forces or national guard, or a guard employed by a penal institution;
'(2) on his own premises or premises under his control;
'(3) traveling; or
'(4) engaging in lawful hunting or fishing or other lawful sporting activity.'
After a hearing on Purolator's petition, the trial court entered its order, the relevant portion of which reads:
'. . . it appearing to the Court after reviewing the pleadings, hearing the evidence and argument of counsel and considering the briefs presented that there is a serious question as to whether Sections 46.02 and 46.03 of the Texas Penal Code apply to this Plaintiff so as to prohibit the...
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