Untitled Texas Attorney General Opinion ( 2018 )

KEN PAXTON
ATTORNEY GENERAL OF TEXAS
August 27, 2018
The Honorable James White Opinion No. KP-0212
Chair, Committee on Corrections
Texas House of Representatives Re: Whether sections 46.02 and 46.03 of the
Post Office Box 2910 Penal Code apply to presiding election judges
Austin, Texas 78768-2910 licensed to carry a handgun under chapter 411
of the Government Code (RQ-0214-KP)
Dear Representative White:
You ask about the authority of certain presiding election judges to carry a handgun in a
polling place on election day. 1 The presiding election judge "is in charge of and responsible for
the management. and conduct of the election at the polling place of the election precinct that the
judge serves." TEX. ELEC. CODE§ 32.071. Along with other duties, the Election Code requires
presiding election judges to "preserve order and prevent breaches of the peace and violations" of
the Election Code at polling places. Id. § 32.075(a). Given their law enforcement duties, you
question whether presiding election judges licensed under chapter 411 of the Government Code
are exempt from subsection.46.03(a)(2) oft}le Penal Code, which prohibits carrying firearms in a
polling place. See Request Letter at 1, 3.
Section 46;03 of the Penal Code generally prohibits the carrying of a firearm in multiple
lqcations, including a polling place. TEX. PENAL CODE § 46.03(a)(2). 2 "A person commits ari
offense if the person intentionally, knowingly, or recklessly possesses or goes with a firearm ...
on the premises of a polling place on the day of an election or while early voting is in progress."3
Id. Notwithstanding that general prohibition, section 46.03 does not apply to specified individuals,
including "an active judicial officer as ~efined by Section 411.201, Government Code, who is
licensed to carry. a handgun under Subchapter H, Chapter 411, Government Code." Id.
§ 46.15(a)(4 ). The Legislature defined "active judicial officer" to include, among others, "a person
1
See Letter from Honorable James White, Chair, House Comm. on Corrs., to Honorable Ken Paxton, Tex.
Att'y Gen. at 1 (Mar. 1, 2018), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request
Letter").
2Y ou also question whether the presiding election judges would be exempt from section 46.02 of the Penal
Code. Request Letter at 3. Section 46.02 makes it an offense for a person to carry a handgun anywhere not "on the
person's own premises or premises under the person's control" or en route to the person's motor vehicle or watercraft.
TEX. PENAL CODE § 46.02(a). But section 46.02 does not apply to a person lawfully carrying a handgun with a
license under chapter 411 of the Government Code. Id.§ 46.15(b)(6). Because you ask about only those presiding
election judges licensed under chapter 411, we need not address section 46.02 further.
3
Carrying a firearm in violation of subsection 46.03(a) is a third-degree felony. See id. § 46.03(g).
The Honorable James White - Page 2 (KP-0212)
serving as a judge or justice of ... a district court." TEX. Gov'T CODE§ 41 l.201(a)(l)(A). Thus,
a district judge with a license to carry a handgun may catty a handgun in the locations listed in
section 46.03, including a polling place. TEX. PENAL CODE§ 46.15(a)(4).
The Legislature did not include presiding election judges among those expressly exempted
from Penal Code sections 46.02 and 46.03. See id. § 46.15. Yet in performing their duties at the
polling place, the Election Code gives presiding judges "the power of a district judge to enforce
order and preserve the peace." TEX. ELEC. CODE§ 32.075(c). More than 100 years ago, a Texas
court addressed whether that statutory authority in a predecessor statute allowed presiding judges
to carry arms to a polling location. See Hooks v. State, 158 S.W. 808, 808 (Tex. Crim. App. 1913).
That court concluded that because a presiding election judge had the same power as a district judge
to enforce order and keep the peace, and because a district judge could carry arms to a polling
location, the presiding election judge likewise had authority to do so. Id. A court today would
likely follow the analysis in Hooks when construing the statutes in their current form and conclude
that section 46.03 of the Penal Code does not apply to presiding election judges licensed under
chapter 411 of the Government Code when performing their duties under section 32.075(a) of the
Election Code.
The presiding election judge's duties extend "from the time the judge arrives at the polling
place on election day until the judge leaves the polling place after the polls close." TEX. ELEC.
CODE§ 32.075(a). Regarding location, the presiding election judge's law enforcement authority
exists "in th_e polling place and in the area within which electioneering and loitering are
prohibited." Id. Only during that time and those locations does the presiding election judge
possess the power of a district judge to enforce order and preserve the peace. Id. § 32.075(c).
Thus, the presiding election judge's exemption from section 46.03 is limited to those times and
locations.
Recognizing that polling locations are located in a variety of venues, you also seek general
guidance on a presiding election judge's authority to carry firearms in "polling places that are
either government or non-government buildings." Request Letter at 3. Governmental entities use
a wide variety of buildings as polling locations, including courthouses, libraries, schools, arid other
government buildings. They also often use nongovernment buildings, such as grocery stores,
churches, and privately owned activity centers. Although presiding election judges licensed under
chapter 411 are generally exempt from prosecution under subsection 46.03( a)(2) while performing
their duties at a polling place, your question acknowledges that other provisions of the Penal Code
may limit their ability to carry firearms in certain polling locations. 4
4 The Election Code requires a polling place in each precinct, and it establishes which officials designate the
polling places in specific elections. See TEX. ELEC. CODE §§ 43.001 (requiring one polling place in each precinct),
43.002(a), (b) (requiring a county clerk to recommend a location for general elections and the commissioners court
to designate the location). But it places few prerequisites on the location of a polling place. See id. § 43.03 l(c)
(requiring a polling place to be in a public building "if practicable").
The Honorable James White - Page 3 (KP-0212)
Section 46.035 of the Penal Code prohibits a license holder from carrying handguns in
certain buildings, while the Election Code allows a governmental entity to consider using those
same buildings as polling locations. Compare TEX. PENAL CODE§ 46.035(a)-(c), with TEX. ELEC.
CODE § 43.031. 5 Penal Code subsection 46.035(a-1) prohibits a license holder from openly
carrying a handgun on the premises of both public and private institutions of higher education.
TEX. PENAL CODE § 46.035(a-1). Subsections (a-2) and (a-3) prohibit a license holder from
carrying a concealed handgun in the locations on a campus of an institution of higher education,
public or private, where the institution has by rule prohibited handguns and provided proper notice
under section 30.06 of the Penal Code. Id. § 46.035(a-1), (a-2); see also TEX. Gov'T CODE
§ 411.2031 (d-1) (requiring an institution of higher education to establish reasonable rules
regarding the carrying of concealed handguns on campus), (e) (authorizing a private or
independent institution of higher education to establish rules prohibiting license holders from
carrying handguns on campus). Because no exception applies to presiding election judges in these
locations, subsections 46.035(a-1), (a-2), and (a-3) prohibit a presiding electionjudge from openly
carrying a handgun on any institution of higher education campus and from carrying a concealed
handgun in a location on campus where the institution prohibits carrying a handgun by rule.
Sections 30.06 and 30.07 of the Penal Code make it a criminal offense for a license holder
to carry a concealed handgun and to openly carry a handgun, respectively, on property of another
without consent when the license holder received notice forbidding carrying a handgun on the
property. TEX. PENAL CODE §§ 30.06(a), .07(a). Those sections also establish methods for
providing notice to prohibit a license holder from carrying a handgun onto the property. 6 In limited
circumstances, governmental entities may post notice under sections 30.06 and 30.07, thereby
making it an offense to carry handguns into the buildings for which they provide notice. 7
A state agency or political subdivision may not prohibit the carrying of handguns on
property it owns or leases unless Penal Code section 46.03 or 46.035 expressly allows the
prohibition. TEX. Gov'T CODE § 411.209 ("Wrongful Exclusion of a Handgun License Holder").
5
For some of the buildings and premises listed in Penal Code section 46.035, the Legislature established an
exemption for "active judicial officers," as it did for section 46.03: "It is a defense to prosecution under Subsections
(b) and (c) that the actor, at the time of the commission of the offense, was ... an active judicial officer .... " TEX.
PENAL CODE § 46.035(h-I). Thus, section 46.035 would not prohibit a presiding election judge licensed under
chapter 4 I I of the Government Code from carrying a handgun while performing the duties of an election judge at
the locations listed in subsections 46.035(b) and (c). That exemption, however, does not apply to the buildings and
premises listed in subsections (a-I) and (a-2).
6
A "person receives notice if the owner of the property or someone with apparent authority to act for the
owner provides notice to the person by oral or written communication." Id. §§ 30.06(b), .07(b). Section 30.06
describes how to provide notice by written communication to forbid a license holder with a concealed handgun. Id.
§ 30.06(c)(3). Section 30.07 similarly establishes how to provide a notice by "written communication" for purposes
of prohibiting a license holder with an openly carried handgun. Id. § 30.07(c)(3).
7
Sections 30.06 and 30.07 establish specific language to use on a sign to prohibit carrying a handgun onto
the property. Id. §§ 30.06(c)(3)(A), .07(c)(3)(A). Whether it is acceptable to use other language or methods to post
notice prohibiting the carrying of handguns is a question currently at issue in Paxton v. City ofAustin, Cause No. D- ·
I-GN-16-003340, in the 53rd District Court of Travis County, Texas.
The Honorable James White - ~age 4 (KP-0212)
Relevant to potential polling locations, section 46.03 prohibits carrying weapons "on the physical
premises of a school or educational institution" and "on the premises of any government court or
offices utilized by a court," among other locations, unless exceptions apply. 8 TEX. PENAL CODE
§ 46.03(a)(l), (3). If a governmental entity posts notice under 30.06 and 30.07 in those locations,
a license holder who carries a firearm could be in violation of those provisions and prosecuted for
trespass by a license holder. Id. §§ 30.06(a), .07(a). Yet sections 30.06 and 30.07 except from the
application of those provisions the carrying of a handgun on property owned or leased by a
governmental entity that "is not a premises or other place on which the license holder is prohibited
from carrying the handgun under Section 46.03 .... " Id.§§ 30.06(e), .07(e). As discussed above,
section 46.03 would not apply to a presiding election judge licensed under chapter 411 carrying a
firearm while performing presiding election judge duties. Id. § 46.15(a)(4); TEX. ELEC. CODE
§ 32.075(c). Thus, sections 30.06 and 30.07 would not apply to a presiding election judge licensed
under chapter 411 who serves at a polling location on property where section 46.03 otherwise
prohibits carrying a handgun if the property is owned or leased by a governmental entity. So those
sections would not prohibit a presiding election judge licensed under chapter 411, while
performing election judge duties, from carrying a handgun at a polling place located in a school or
on the premises of a government court or offices utilized by the court. 9 Cf TEX. PENAL CODE
§ 46.035(a-l), (a-2), (a-3) (making it an offense to carry handguns on institutions of higher
education when prohibited by rules of the institution, notwithstanding exemptions created in other
sections).
The exceptions to 30.06 and 30.07 apply only to carrying a handgun on "property .
owned or leased by a governmental entity" and do not extend to privately owned property. Id.
§§ 30.06(e), .07(e). We find no law that exempts presiding election judges from those provisions
when on private property. Thus, if a polling place is on private property and the owner or someone
with apparent authority to act for the owner provides notice, a presiding election judge would likely
be prohibited from carrying a firearm to that location. 10
8
Prior opinions of this office discuss the meaning of premises in the context of section 46.03. See Tex. Att'y
Gen. Op. Nos. KP-0050 (2015) at 1-2; KP-0047 (2015) at 3. The scope of the terms "premises" and "building or
portion ofa building" is also an issue raised in Paxton v. City ofAustin, Cause No. D-1-GN-16-003340, in the 53rd
District Court of Travis County, Texas,
9
Section 37.125 of the Education Code makes it an offense to intentionally exhibit a firearm "in a mariner
intended to cause alarm or personal injury" on school property. TEX. EDUC. CODE § 37.125(a). Election judges
carrying a handgun to a polling location at a school should consider this provision when deciding how they will carry.
10To the extent that the political subdivision holding the election has a contract or arrangement with the
private property owner about the polling location, the ability to carry a firearm on the property during the election
may depend on the specific terms of that agreement and should be evaluated on a case-by-case basis.
The Honorable James White - Page 5 (KP-0212)
SUMMARY
Section 46.03 of the Penal Code, which creates an offense
for carrying firearms at multiple locations including a polling place,
does not apply to presiding election judges licensed under chapter
411 of the Government Code when performing their duties under
section 32.075(a) of the Election Code.
Subsections 46.035(a-l), (a-2), and (a-3) of the Penal Code
prohibit a presiding election judge from openly carrying a handgun
on any institution of higher education campus and from carrying a
concealed handgun in a location on campus where the institution
prohibits carrying a handgun by rule.
Sections 30.06 and 30.07 of the Penal Code could prohibit a
presiding election judge from carrying a handgun to a polling
location on private property if proper notice was given under those
sections.
Very truly yours,
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy First Assistant Attorney General
VIRGINIA K. HOELSCHER
Chair, Opinion Committee