Untitled Texas Attorney General Opinion ( 1989 )

March 17, 1989
Honorable Fred Toler Opinion No. JM-1028
Executive Director
Texas Commission on Law Re: Whether a judge or
Enforcement Officer magistrate is a "peace
Standards and Education officer" for various pur-
1606 Headway Circle, Suite 100 poses (RQ-1613)
Austin, Texas 78754
Dear Mr. Toler:
You have requested an opinion on several questions
relative to whether a judge or magistrate is a "peace
officer" under various provisions of the law of this state.
You ask:
.-
1. Is each judge or magistrate a 'peace
officer' as that term is used in Chapter 415
of the Government Code?
2. Is each judge or a magistrate a 'peace
officer' as that term is used in the Code of
Criminal Procedure?
3. Is each judge or magistrate a 'peace
officer' as that term is used in the Penal
Code?
4. If each judge or magistrate is a
'peace officer' under Chapter 415, must each
be licensed by the commission as a peace
officer and is each also covered by all the
other provisions of that chapter including
removal from office under certain conditions?
5. If each judge or magistrate is a
'peace officer' under the Code of Criminal
Procedure, does each have all the duties,
powers, privileges and responsibilities of a
peace officer under that code?
Honorable Fred Toler - Page 2 (JM-1028)
6. If m judge or magistrate is a 'peace
officer,' can they lawfully carry a handgun,
under the Penal Code's peace officer non-
applicable provision or under any other
theory?
You state that your questions have been prompted by the
position taken by justices of the peace contacting your
office asking that their service as justices of the peace
count as peace officer experience. You state they contend:
As peace officers, they can lawfully carry
handguns and should be credited by the
commission under its rules with one month of
peace officer service for each month of
justice of the peace service for the purpose
of determining when their peace officer
license will deactivate or when they will be
eligible for a higher peace officer
proficiency certification.
Under chapter 415 of the Government Code the Texas
Commission on Law Enforcement Standards is empowered to
perform such functions as establishing minimum standards for ,-
licensing of peace officers, maintaining training programs
and requiring weapons proficiency for persons seeking
certification as peace officers.
Peace officer is defined in section 415.001 of the
Government Code as follows:
'Peace officer,' for the purposes of this
Act, means any oerson emnloved or anvointed
as a neace officer under law, includina but
not limited to a werson so desianated bv
Article 2.12, Code of Criminal Procedure. or
bv Section 51.212 Education
-.
Code . . . (Emphasi~rad``d?f4
A judge or magistrate is not one of the classifications
or persons recognized as a peace officer under article 2.12
of the Code of Criminal Procedure nor does a judge or
magistrate come within the security officer provisions of
section 51.212 or 51.214 of the Education Code. However,
section 415.001 does not limit "peace officer" to those
defined in article 2.12 of the Code of Criminal Procedure
and sections 52.212 or 51.214 of the Education Code.
Section 415.001 does include anv werson emwloved or
annointed as a neace officer under law. 1 -.
p. 5311
Honorable Fred Toler - Page 3 (JM-1028)
Since a judge or magistrate does not come within any of
the foregoing statutory definitions of a "peace officer,"
the resolution of your questions turns on whether a judge or
a magistrate1 is a person employed or appointed as a peace
officer under law.
As ordinarily understood the term lljudge*'is limited to
one who conducts or presides over a court of justice. 47
Tex. Jur. 3d Judaes 5 1. A "judge" is an officer or member
of the tribunal constituting a court. 23 Words and Phrases
Judae at 252.
Article V, section 1, of the Texas Constitution pro-
vides that judicial power shall be vested in courts desig-
nated therein, and in such other courts as may be provided
by law. The meaning of judicial power is discussed in the
Interpretive Commentary of Article V, section 1:
Judicial power is often said to be the
power to adjudicate upon, and protect the
rights and interests of individual citizens
and to that end to construe and apply the
laws: or, as stated in Morrow v. Corbin, 122
Tex. 553, 62 S.W.2d 641 (1933), it is the
power of the courts to decide and pronounce
judgments and to carry them into effect
between persons and parties who bring cases
before them for decisions. Under the
1. Article 2.09 of the Code of Criminal Procedure
lists who are magistrates under the code as follows:
Each of the following officers is a
magistrate within the meaning of this Code:
The justices of the Supreme Court, the judges
of the Court of Criminal Appeals, the
justices of the Courts of Appeals, the judges
of the District Court, the magistrates
appointed by the judges of the district
courts of Dallas County that give preference
to criminal cases and the judges of the crim-
inal district courts of Dallas County, the
county judges, the judges of the county
courts at law, judges of the county criminal
courts, the justices of the peace, the mayors
and recorders and the judges of the municipal
courts of incorporated cities or towns.
p. 5312
Honorable Fred Toler - Page 4 (JM-1028)
judicial power determination is made of what
the law is in relation to some existing thing
already done or happened.
The statutory duties of a peace officer can be
generally summarized as follows:
A peace officer is required by statute to
execute all lawful process issued to him by
any magistrate or court. An officer is also
required to preserve the peace within the
officer's jurisdiction by all lawful means.
In every case where an officer is authorized
by the pertinent statutes, he or she must
interfere without warrant to prevent or
suppress crime, and, when the officer is
authorized by law, he or she must arrest
offenders without warrant in order that they
may be taken before the proper magistrate or
court and be tried. As such, they are given
power by statute to make arrests on criminal
charges under authority of a warrant, or
under proper circumstances to make arrests
without warrant. 1 -.
59 Tex. Jur. 3d Police 0 2.
We conclude that a judge or magistrate is not "a person
employed or appointed as a peace officer under law" under
Government Code, section 415.001.
In response to your second question, a judge or
magistrate does not come within any of the classifications
of persons recognized as peace officers under article 2.12
or any other provision of the Code of Criminal Procedure.
Since section l.O7(a)(25) of the Penal Code provides
that "peace officer" means a person so designated by the
Code of Criminal Procedure, the answer to your third
question is that a judge or magistrate is not a peace
officer as that term is defined in the Penal Code.
Our conclusions that judges and magistrates are not
peace officers under chapter 415 of the Government Code and
the Code of Criminal Procedure are dispositive of your
fourth and fifth questions.
In your last question you ask whether a judge or a
magistrate is a peace officer and may carry a gun under any I--
other theory. Section 46.02 of the Penal Code prohibits
p. 5313
Honorable Fred Toler - Page 5 (JM-1028)
individuals from carrying handguns, but section 46.03
exempts peace officers from this prohibition.
Article V, section 12(a) of the Texas Constitution
provides that "all judges of the courts of this State, by
virtue of their office, are conservators of the peace
throughout the State."
The practice commentary following section 46.03 of the
Penal Code discusses opinions of the Court of Criminal
Appeals holding that article V, section 12(a), of the
constitution made judges and magistrates peace officers and
the effect on those opinions of subsequent amendments to the
Penal Code and the Code of Criminal Procedure. The practice
commentary provides in pertinent part as follows:
Previously, peace officers generally were
exempt, and the Court of Criminal Appeals
reluctantly concluded that Tex. Con&. art.
v, § 12, made all magistrates peace officers
and that the general term 'peace officer' did
not exclude them. Thus justices of the
peace, municipal judges, and other judges
: A.. could carry handguns lega.lly, Patton v.
State, 86 S.W.Zd 774 (Cr.App.1935); Jones v.
State, 65 S.W. 92 (Cr.App.1901). The court
expressly stated its preference for limiting
the exemption to those defined as peace
officers by statute, see Tippett v. State,
189 S.W. 485 (Cr.App.l916), and the new code
finally has adopted the court's early
suggestion. Peace officers for purposes of
the code are limited to those specified in
C.C.P. art. 2.12, see the definition of
'peace officer' in Section 1.07, and magis-
trates are not included.
In a letter opinion of this office it was concluded that
since article 2.12 of the Code of Criminal Procedure does
not include justices of the peace or magistrates within the
definition of peace officer, they do not come under the
class of persons excluded from the prohibition of carrying a
gun under article 46.02 of the Penal Code. Letter opinion
88-70 (1988). However, it was stated that since a judge has
control of the courtroom and the authority under article
46.04 of the Penal Code to permit others to bring a gun into
the courtroom, the judge has authority to possess a gun in
the courtroom.
,-
P. 5314
Honorable Fred Toler - Page 6 (JM-1028)
Upon further review we remain convinced of the
soundness of the conclusion reached in LO-88-70. Article V,
section 1 of the Texas Constitution vests the judicial power
of this state in
one Supreme Court, in one Court of Criminal
Appeals, in Courts of Appeals, in District
Courts, in County Courts, in Commissioners
Courts, in Courts of Justices of the Peace,
and in such other courts as may be provided
by law.
It would not make sense for judicial officers to
possess both judicial power to preside over a court and at
the same time possess the authority of a peace officer to
execute processes issued by the court and arrest offenders.
This conclusion appears to be consistent with the common law
meaning of the term "conservator of the peace."
In Ex carte Levy, 163 S.W.2d 529 (Ark. 1942), in
addressing the meaning of a provision in its constitution
making supreme court judges conservators of the peace, the
court found that such officials
were common-law officers, and their duties as
such were to prevent and arrest for breaches
of the neace in their nresence, but not to
arraign and try the offender. (Emphasis
added.)
m at 532. Accord Sheffield v. Reese, 28 So. 2d 745 (Miss.
1947): Marcuchi v. Norfolk & W. Rv. Co., 94 S.E. 979 (W.V.
1918): State v. Shockley, 80 P. 865 (Utah 1905).
Article 14.02 of the Code of Criminal Procedure ad-
dresses the authority of a magistrate when an offense is
committed in his presence. Article 14.02 provides:
A veace officer may arrest, without
warrant, when a felony or breach of the peace
has been committed in the nresence or within
the view of a maaistrate. and such maaistrate
verbally orders the arrest of the offender.
(Emphasis added.)
Other statutes deal with the duties of a magistrate
when an offense is committed within his presence or hearing.
Article 6.01 of the Code of Criminal Procedure pro- 1 -.
vides:
p. 5315
Honorable Fred Toler - Page 7 (``-1028)
It is the duty of every magistrate, when
he may have heard, in any manner, that a
threat has been made by one person to do some
injury to himself or the person or property
of another, including the person or property
of his spouse, immediatelv to aive notice to
some veace officer, insorder that such peace
officer may use lawful means to prevent the
injury. (Emphasis added.)
Article 6.02 of the Code of Criminal Procedure states:
If, within the hearina of a maaistrate,
one person shall threaten to take the life of
another, including that of his spouse, or
himself, the magistrate shall issue a warrant
for the arrest of the person making the
threat, or in case of emergency, he may him-
self immediately arrest such person.
(Emphasis added.)
Article 6.03 of the Code of Criminal Procedure pro-
vides:
Whenever, in the wresence or within the
observation of a maaistrate, an attempt is
made by one person to inflict an injury upon
himself or to the person or property of
another, including the person or property of
his spouse, it is his duty to use all lawful
means to prevent the injury. This may be
done, either by verbal order to a peace
officer to interfere and prevent the injury,
or by the issuance of an order of arrest
against the offender, or by arresting the
offender: for which purpose he may call upon
all persons present to assist in making the
arrest. (Emphasis added.)
A common thread running through the terms "conservator
of the peace" and llmagistrateV' is that they have certain
powers when an offense is committed in their presence.
Neither at common law nor in the foregoing statutes are such
officials clothed with the authority of a peace officer. On
the contrary, the statutes clearly emphasize the distinction
between the duties of a magistrate and a peace officer.
Judges and magistrates are not included in the lengthy
classification of persons'recognized as peace officers under
article 2.12 of the Code of Criminal Procedure and neither
common law nor statutory construction lends credence to such
p. 5316
Honorable Fred Toler - Page 8 (JM-1028)
a construction. Judges or magistrates do not come within
the class of persons excluded from the prohibition of
carrying a gun under article 46.02 of the Penal Code.
However, as noted in LO-88-70, a judge or magistrate having
the control of the courtroom and the authority to permit
others to bring a gun into the courtroom would have
authority to possess a gun in the courtroom.
SUMMARY
A judge or magistrate is not a peace
officer as that term is used in chapter 415
of the Government Code. Nor is a judge or
magistrate a peace officer as that term is
used in the Code of Criminal Procedure and
the Penal Code. Judges or magistrates may
not lawfully carry handguns.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 5317