TSA Agents Violate Texas Law [Updated]

[Update: A federal statute, 28 USC §1442, allows removal to federal court of any civil or criminal case against:

The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.

So, like an occupying army, the TSA has it wired so that it won't be subject to the jurisdiction of the occupied state's courts.]

A little Texas law:

A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun…

(Texas Penal Code Section 46.02)

Section[] 46.02…do[es] not apply to: (1)  peace officers or special investigators under Article 2.122, Code of Criminal Procedure…

(Texas Penal Code Section 46.15. There are other exceptions—"in the actual discharge of official duties as a member of the armed forces," for example—but none of them appear relevant to the subject of this post.)

The following are peace officers…[exclusive list of 36 types of state law-enforcement officers].

(Texas Code of Criminal Procedure Article 2.12.)

(a)  The following named criminal investigators of the United States shall not be deemed peace officers, but shall have the powers of arrest, search, and seizure under the laws of this state as to felony offenses only:
(1)  Special Agents of the Federal Bureau of Investigation;
(2)  Special Agents of the Secret Service;
(3)  Special Agents of the United States Immigration and Customs Enforcement;
(4)  Special Agents of the Bureau of Alcohol, Tobacco, Firearms and Explosives;
(5)  Special Agents of the United States Drug Enforcement Administration;
(6)  Inspectors of the United States Postal Inspection Service;
(7)  Special Agents of the Criminal Investigation Division of the Internal Revenue Service;
(8)  Civilian Special Agents of the United States Naval Criminal Investigative Service;
(9)  Marshals and Deputy Marshals of the United States Marshals Service;
(10)   Special Agents of the United States Department of State, Bureau of Diplomatic Security;
(11)  Special Agents of the Treasury Inspector General for Tax Administration; and
(12)  Special Agents of the Office of Inspector General of the United States Department of Veterans Affairs.
(b) A person designated as a special policeman by the Federal Protective Services division of the General Services Administration under 40 U.S.C. Section 318 or 318d is not a peace officer but has the powers of arrest and search and seizure as to any offense under the laws of this state.
(c)  A Customs and Border Protection Officer or Border Patrol Agent of the United States Customs and Border Protection or an immigration enforcement agent or deportation officer of the Department of Homeland Security is not a peace officer under the laws of this state but, on the premises of a port facility designated by the commissioner of the United States Customs and Border Protection as a port of entry for arrival in the United States by land transportation from the United Mexican States into the State of Texas or at a permanent established border patrol traffic check point, has the authority to detain a person pending transfer without unnecessary delay to a peace officer if the agent or officer has probable cause to believe that the person has engaged in conduct that is a violation of Section 49.02, 49.04, 49.07, or 49.08, Penal Code, regardless of whether the violation may be disposed of in a criminal proceeding or a juvenile justice proceeding.
(d) A commissioned law enforcement officer of the National Park Service is not a peace officer under the laws of this state, except that the officer has the powers of arrest, search, and seizure as to any offense under the laws of this state committed within the boundaries of a national park or national recreation area. In this subsection, "national park or national recreation area" means a national park or national recreation area included in the National Park System as defined by 16 U.S.C. Section 1c(a).
(e) A Special Agent or Law Enforcement Officer of the United States Forest Service is not a peace officer under the laws of this state, except that the agent or officer has the powers of arrest, search, and seizure as to any offense under the laws of this state committed within the National Forest System. In this subsection, "National Forest System" has the meaning assigned by 16 U.S.C. Section 1609.
(f) Security personnel working at a commercial nuclear power plant, including contract security personnel, trained and qualified under a security plan approved by the United States Nuclear Regulatory Commission, are not peace officers under the laws of this state, except that such personnel have the powers of arrest, search, and seizure, including the powers under Section 9.51, Penal Code, while in the performance of their duties on the premises of a commercial nuclear power plant site or under agreements entered into with local law enforcement regarding areas surrounding the plant site.
(g)  In addition to the powers of arrest, search, and seizure under Subsection (a), a Special Agent of the Secret Service protecting a person described by 18 U.S.C. Section 3056(a)  or investigating a threat against a person described by 18 U.S.C. Section 3056(a) has the powers of arrest, search, and seizure as to:
(1)  misdemeanor offenses under the laws of this state; and
(2)  any criminal offense under federal law.

(Texas Code of Criminal Procedure Article 2.122, Special Investigators. Entire statute quoted to show how detailed it is.)

Working backward:

A TSA officer (for example, on a VIPR team) is not a "Special Investigator" under Article 2.122 of the Texas Code of Criminal Procedure.

Nor is he a "peace officer" under Article 2.12.

Therefore the exception of Penal Code Section 46.15 does not apply to him.

Therefore it is a violation of Texas law for him to carry a firearm.

This is an arrestable misdemeanor offense with a penalty of up to a year in jail and a fine of up to $4,000. Texas law enforcement officers should arrest TSA officers openly carrying firearms in public.

Will they? Not likely. But if you're a police officer and you do your duty and arrest a TSA agent for unlawfully carrying a weapon, you'll be a hero.

If no cop arrests a TSA agent for UCW, is the discussion purely theoretical? Not necessarily.

A peace officer or any other person, may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace.

(Texas Code of Criminal Procedure Article 14.01.)

In Turner v. State, (Tex. App.—Houston (14th Dist.) 1995, pet ref'd.) the court held, under the particular facts, that unlawfully carrying a weapon was an offense against the public peace:

The sight of someone holding a handgun under these circumstances would lead one (and did lead Creel) to the conclusion that violence or danger is threatened, and would certainly induce “disquiet and disorder [or] terror or fear … and threaten danger … in a person of ordinary firmness.”

Would a TSA agent carrying a handgun in public induce disquiet and disorder in a person of ordinary firmness? Maybe so—especially if he's on a VIPR team. It was, after all, no accident that they named these teams after the most deadly of reptiles. They didn't name these teams "Visible Intermodal Prevention and Response" teams and then notice that the acronym could be pronounced "viper." ("Intermodal" isn't even the right word.) Fear and disquiet are what TSA intended.

If you are not a cop and you arrest a TSA agent for violating Section 46.02 of the Texas Penal Code, you will be not only a hero but a legend. There will be songs written about you.

(And if you get in trouble for it, call me and I'll defend you for free.)

7 responses to “TSA Agents Violate Texas Law [Updated]”

  1. I’m having some trouble with this. It strikes me as very likely that any arrested TSA agent would be licensed to carry under federal law. So if we read the Texas law as you have, we now have a conflict between the two. The federal law says he can but state law says he cannot. Why should state law win here? I’m not asking this facetiously, I’m genuinely interested in an explanation. Relieve me of my ignorance.

    • I’ll look at federal law on this, but my thinking is this: if the condominium association says its agents can possess firearms on the property, but I say they can’t possess firearms in my condo, they can’t possess firearms in my condo. There’s no clash between the two laws; the specific prohibition simply limits the general grant.

  2. While in the police academy in Texas, I was instructed that the only places in the state I was NOT allowed to carry my firearm were Federally controlled areas. These areas, although in the geographical confines of Texas, fall under federal guidelines and restrictions. These areas included federal parks, federal courthouses (IF the judge would not allow it, up to them), and airports under federal direction. Municipal airports would not count, but larger airports (the ones you find TSA in) would.
    If there is some other statutes regulating this, I would love to see it. No TSA agents operate in my city, but yeah, that shit would be funny.

  3. Mark,

    I would certainly expect federal supremacy to come out the winner here, if in fact there is a federal statute that permits TSA officers to go armed, and possibly even if it were only properly promulgated regulations in furtherance of an actual statutory enactment. The condominium example you posit doesn’t seem particularly apposite as a condo association in TX is almost certainly going to be a creature of state rather than federal law.

    Sure, the TX officer could probably arrest a TSAagent once, and get off on qualified immunity grounds. But I don’t see that TX officer getting any brownie points with their employer for doing so and if repeated I suspect that even qualified immunity would go away.

  4. It brings another question to mind as the TSA continues it’s scope creep.

    if you have a CC permit and are CCing, you have a statutory “duty to inform” any time you have an official interaction with an LEO. Most of us know what that means–Highway Patrol, State Police Sheriffs Deputies, local police, etc.

    But since most TSA “officers” are purely administrative, and are NOT “sworn LE officers” and DO NOT have the power of arrest, do they qualify as “LEOs” under these state’s laws? If you are CCing and they stop you are you required to inform them?

  5. Just checked DPS’s license database for issuance of security officer/company licenses and did not see any for TSA/Transportation …/Homeland Security/Department of…/ and a few other arrangements.

    Now they could have been issued a “Letter of Authority”, which the DPS Private Security Bureau will give, in order to carry firearms in certain instances/locations. It might not show up in the database. But I believe the individual people carrying would still have to have the personal security license under that letter (and thus be in the database if you knew a TSA agents name to run) – but I am not sure since it has been a little while since I read the applicable codes/rules for the PSB.

    FYI: the searchable database is here: http://www.txdps.state.tx.us/RSD/PSB/Reports/searchOptions.htm

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