Untitled Texas Attorney General Opinion ( 1973 )

The Honorable Joe Max Shelton Opinio’n No. H- 167 .-
County Attorney
Grayson County Re: Authority of adult
Sherman, Texas probation officers,
county attorneys and
their assistants to
-
Dear Mr. Shelton: carry pistols
You have asked our opinion on the authority of adult probation officers
and of county attorneys and their assistants to carry pisto,ls in carrying out
certain official duties.
Artic.le 483 of theT.exas Penal Code prohibits the carrying of certain
weapons including a pistol. There are several exemptions from its opera-
tion, among them “any peace officer in the actual discharge of his official
duty. ” Article 404, V. T. P. C. The term “peace officer” is defined in
Article 2.12 of the Texas Code of Criminal Procedure as follows:
“The following are peace officers;
“(1) Sheriffs and their deputies.
“(2) constables and deputy constables.
“(3) marsha,ls or police officers of an incorporated
city, town, or village.
“(4) rangers and officers commissioned by the
Public Safety Commission and the Director of
the Department of Public Safety.
“(5) investigators of the district attorneys’, criminal
district attorneys’, and county attorneys’ offices.
p. 767
1
,
L’
r
The Honorable Joe Max Shelton, page 2 (H-167)
“(6) law enforcement agents of the Alcoholic
Beverage Commission.
“(7) each member of an arson investigating
unit of a city, county, or the state.
I’( 8) any private person specially appointed to
executive criminal process.
“(9) officers commissioned by the governing
board of any state institution of higher
education, public junior college or the
Texas State Technical Institute.
“(1O)officers commissioned by the Board of Control
“(11) game management officers commissioned by
the Parks and Wildlife Commission. ”
We recognize that, although adult probation officers ordinarily are
not peace officers, they are legally empowered to arrest a probationer
without a warrant when ordered to do so by the judge of the court who has
jurisdiction of the probationer’s case. Article 42.12, 5 8, V. T. C. C. P.
When so acting they have the same rights as “peace officers” that other
private individuals would have under the provisions of $ (8) of Article 2.12
of the Texas Code of Criminal Procedure.
Accordingly, we hold that an adult probation officer may be a peace
officer exempt from the provisions of ‘Article 483 of the Texas Penal Code,
under some circumstances.
Your second question concerns county attorneys and their assistants
in the conduct of investigation. Section (5) of Article 2.12 defines as among
peace officers, “investigators of the district attorneys’, criminal district
attorneys’, and county attorneys’ offices. ”
We brlil:ve that persons “of” a county attorney’.+ office, including
the county attorney and hts assistilntz+. while enyagrd in investigacivc
work, would bu classiliod as pcacc: officer’s unr!i:r Ibis provision and Lhur
p. 768
The Honorable Joe Max Shelton, page 3 (H-167)
exempt from the provisions of Article 483 of the Texas Penal Code. We
do not feel that it matters whether the office has special investigators;
the crucial test is whether the attorney is carrying out an investigation,
However, it should be noted that Article 484 of the Penal Code exempts
peace officers from the operation of Article 483 only “in the actual dis-
charge of his official duty;” thus, only during actual investigations would
a county attorney or assistants be entitled to carry a pistol.
Our opinion as to probation officers as well as county attorneys is
further qualified by the provisions of $ 6a of Article 4413(29aa), V. T. C. S. ,
which establishes certain minimum standards for employment as a peace
officer in both permanent and temporary capacities. Except for peace
officers employed on a permanent basis before September 1, 1970, all
permanently employed peace officers must meet educational requirements
prescribed by the Commission within one year of the appointment. Art.
4413 (29aa),. $ 6(a), (‘b). Persons may not be appointed as peace officers on
even a temporary basis unless they meet certain age, physical, and mental
requirements prescribed by the Commission. Art. 4413 (29aa), $6(c). Any
person who accepts appointment as a peace officer or any person who appoints
or retains an individual.as a peace officer in violation of the above mentioned
requirements shall be fined from $100 to $1000. Art. 4413 (29aa), 5 6(e). There
is no special definition of “peace officer ” in this Section, so that the application
definition would seem to be that contained in Art. 2.12 of the Code of Criminal
Procedure. These provisions would apply to assistant county attorneys but
not to county attorneys who are exempt under 5 6(f) of the Act.
SUMMARY
Adult probation officers may be peace officers
in connection with certain of their official duties and
may be entitled to carry a pistol as an exemption to
Article 483, ‘Texas Penal Code, while carrying out
orders of a court to arrest a probationer without a
warrant. County attorneys and their assistants may
act as peace officers while in the conduct of criminal
inveotigatiuns. and at such times would be exempt from
the provisions of Article 483, Texas Peanl Code. Pro-
bation officers and assistant county attorneys would be
. ’
‘
,
.
The Honorable Joe Max Shelton, page 4 (H-167)
subject to the minimum standard provisions of
Article 4413(29aa), V. T. C. S.
Very truly yours,
APPROVED:
1
DAVID M. KENDALL, Chairman
Opinion Committee