Untitled Texas Attorney General Opinion ( 1986 )

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December 31. 1986
Honorable Ray Keller Opinion No. JM-613
Chairman
Committee on Law Enforcement Re: Whether it is a crime for
Texas House of Representatives a peace officer to carry a
P. 0. Box 2910 handgun while outside his
Austin, Texas 78769 jurisdiction or not in the
actual discharge of his duties
Mr. Fred Toler, Executive Director as a peace officer
Texas Commission on Law Enforcement
Officer Standards and Education
Suite 100. 1606 Beadway Circle
Austin, Texas 78754
Gentlemen:
You both have asked, in effect, whether a Texas peace officer
comaits a crime and is subject to prosecution for a misdemeanor or
felony if he carries a, handgun either (1) while he is "off duty"
(i.e.9 not actually carrying out duties assigned him by his depart-
ment), or (2) while he is outside the limits of the territory over
which his department has law enforcement jurisdiction.
Section 46.02 of the Penal Code provides that a person commits an
offense if he intentionally, knowingly, or recklessly carries a
handgun on or about his person. If the gun is ~carried on premises
licensed or issued a permit for the sale or service of alcoholic
beverages, the crime Is a felony of the third degree punishable by not
less than two years nor more than ten years in the state penitentiary.
See Penal Code 512.34. If the crime occurs elsewhere, the punishment
F(either or both) a fine not to exceed $2,000 or confinement in jail
for up to one year. -See Penal Code 512.21.
Section 46.03 of the Penal Code makes the foregoing law in-
annlicable to certain oeoole. Previouslv. it made section 46.02
inapplicable to a person '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." Also exempted was
a person on his own premises or on premises under his control, a
person traveling, or a person engaged in a lawful sporting activity.
In 1981, however, section 46.03 was amended. See Acts 1981, 67th
Leg.. ch. 552. at 2273.
The section 46.02 law making the carrying of a handgun unlawful
is still inapplicable to a soldier or penitentiary guard when he is
p. 2756
Honorable Kay Keller
Mr. Fred Toler
Page 2 (~'~-613)
"in the actual discharge of his official duties" (and only then), but
this qualification of the exemption for peace officers was dropped.
Now, section 46.03 simply specifies that the provisions of section
46.02 do not apply to a person "who is a peace officer." Penal Code
546.03(a)(6). -See Penal Code §l.O7(a)(25).
The legislative broadening of the exemption for peace officers
was obviously deliberate and must be given effect. Neither this
office nor a court is free to disregard the plain intent of the
legislature. Salaxar v. State, 169 S.W.Zd 169 (Tex. Grim. App. 1943).
Thus, if a persoa commissioned a peace officer remains a "peace
officer" while "off duty" or while outside his normal jurisdiction,
he is exempted from the provisions of section 46.02 by section
46.03(a)(6). and commits no violation of it by carrying a handgun at
those times.
The Texas Court of Criminal Appeals has left no doubt that a
peace officer - at least within his normal jurisdiction - remains a
peace officer twenty-four hours a day and possesses the full powers of
a peace officer in the presence of criminal activity. See Wood v.
State, 486 S.W.2d 771. 774 (Tex. Grim. App. 1972); MonroG. State,
465 S.W.Zd 757 (Tax. Grim. App. 1971); Simma v. State, 319 S.W.2d 717
(Tex. Grim. App. 1958). The Code of Criminal Procedure, article 2.13,
makes it the duty of every peace officer to preserve the peace within
his jurisdiction at all times and not merely during his "duty" hours
or "shift." See Attorney General Opinion JM-140 (1984). Similarly,
the cases of Proston v. State, 700 S.W.2d 227 (Tex. Grim. App. 1985)
and Christopher v. State, 639 S.W.2d 932 (Tex. Grim. App. 1982). leave.
no doubt that every Texas peace officer remains a peace officer even
while outside the territorial limits of his normal jurisdiction,
although his power to act may be more limited outside those boundaries
than within them.
The court in Christopher held that a game warden was empowered to
arrest a person (without a warrant) for speeding on a public highway
inasmuch as section 153, erticle 6701d,,V.T.C.S.. authorizes 3 peace
officer to do so. A game warden was then a peace officer whose normal
powers of warrantless arrest extended only to violations of the law
relating to game, fish, and birds, and whose jurisdiction, powers. and
immunities as a peace officer normally applied only "while on state
parks or on historical sites or In fresh pursuit of those violating
the law in s state park or historical site." Parks & Wild. Code
9511.019 (amended, Acts 1983, 68th Leg., ch. 29.1 at 122). 12.102
(repealed, Acts 1983, 68th Leg., ch. 29. at 123). Unless the game
1. The 1983 statutory changes authorized the director of the
Parks and Wildlife C&s&m to commission peace officers with
powers, privileges, and immunities as peace officers coextensive with
the boundaries of the state. -See Parks 6 Wild. Code 111.019(b).
p. 2757
Honorable Kay Keller
Hr. Fred Toler
Page 3 (JH-613)
warden was a peace officer even while not on a state park or
historical site, section 153 of article 6md could not have been
applied to him.
In the Preston v. State case, E, a campus peace officer.
Shaffer, was assaulted while attemptlng to arrest Preston for a
traffic offense that occurred away from the university. Preston was
charged with aggravated assault on a police officer, an offense
committed only if the officer at the time of the assault is "lawfully
discharging an official duty." Penal Code 122.02(a)(2)(A). The
Court of Criminal Appeals overruled its holding in Christopher that a
specially commissioned peace officer was lawfully authorized to wake
traffic arrests anywhere in the state (and was thereby lawfully dis-
charging an official duty), but in doing so the Preston court
expressly held that Sheffer was a peace officer when he was assaulted
even though he was outside his jurisdiction and was not lawfully dis-
charging an official duty.
The court said:
We hold that when Shaffer was assaulted by
appellant, Shaffer was, pursuant to the provisions
of Art. 2.12, e, a peace officer. Rowever, we
also hold that Shaffer was without lawful author-
ity or power to make a warrantless arrest of
appellant for' committing a traffic offense,
because he was then acting outside of his juris-
dictfonal limits as prescribed by Section 51.203,
supra. We expressly overrule Christopher v.
State, 8upta, that a specially commissioned peace
officer of this State, such as Shaffer, has lawful
authority to make traffic arrests anywhere in the
State of Texas.
Because Sbeffer was not lawfully discharging an
official duty when appellant assaulted him. the
evidence is insufficient to sustain appellant's
conviction for the offense of aggravated assault
on a peace officer.
Preston v. State, 700 S.W.2d at 230.
Section 46.03 no longer limits the "peace officer" exemption for
carrying a handgun to a person "in the actual discharge of his
official duties" ae a peace officer. The Christopher and Preston
cases show that the dropped qualification is significant. In our
opinion, a person who has jurisdiction as a peace officer - even for
a limited territory - is a peace officer everywhere in the state
within the meaning of section 46.03 of the Penal Code and cannot be
convicted under section 46.02 for carrying a handgun, even though he
is not then engaged in the actual discharge of his official duties.
p. 2758
Honorable gay Keller
Mr. Fred Toler
Page 4 (m-613)
Even in the absence of such csses. we would be forced to reach
the same conclusion, for if the legislature did not broaden the
exemption for peace officers by dropping the "in the actual discharge
of dutv" aualification. it narrowed it. A few examles will demon-
strate thd~dlsturbiag effect of a narrow interpretation. Courts are
enjoined to construe statutes in a way, if possible, to avoid
unreasonable or absurd results. -See 53 Tex. hr. 2d Statutes 55126.
165 (1964).
If peace officers may not carry handguns outside their normal
jurisdictions without committing a crime, they cannot be armed at all
times while escorting
.. captured
.. prisoners from one jurisdiction to
another. The "traveling" exception to prosecution for carrying a
handgun, section 46.03(3) of the Penal Code, is of only limited aid
because, under the travel exception, the purpose of the travel Is not
relevant. Evers v. State, 576 S.W.2d 46 (Tex. Grim. App. 1978). And
the traveler's exemption is lost when he arrives at his destination.
Smith v. State, 630 S.W.2d 948 (Tex. Grim. App. 1982). Furthermore, in
Smith v. State, supra, the court approved statements from George v.
State, 234 S.W.87 (Tex. Grim. App. 1921), suggesting that when someone
goesonly a distance that can be traveled in two hours or less, the
travel exception is not applicable. We do sot believe the legislature
intended to put peace officers in such s dilemma.
The defense of "necessity" would be equally unavailing unless the
officer believed possession of the weapon was immediately necessary to
avoid imminent harm. Penal Code 59.22(l). Being in a "high crime
area" would not furnish a sufficient basis for such belief. Johnson
v. State, 650 S.W.2d 414 (Tex. Grim. App. 1983).
If police officers and other peace officers coasaita crime when
they carry their handguns beyond the territorial borders of their
municipalities, officers in a number of cities and special districts
will be prevented from taking the most diretitand accessible route to
the scene of a crime-in-progress or other emergency. In our opinion'
it was not the intent of the legislature that in the city of Dallas,
which surrounds the city of Highland Park, a Dallas policeman in a
part of Dallas on one side of Bighland Park - to answer a distress
call in a part of Dallas directly across the surrounded city -- must
circle that city in order to avoid prosecution as a criminal. In the
city of Houston analogous circumstances.are numerous. Airport security
guards, campus security personnel, and officers commissioned by the
Purchasing and General Services Commission are all peace officers
(according to article 2.12 of the Code of Criminal Procedure) whose
"jurisdiction" is often over several noncontiguous areas separated by
intervening "jurisdictions." Are they guilty of a trims whenever they
stroll from one such place to another while carrying their guns?
We do not believe the legislature intended to hamper law en-
forcement in that way or to expose peace officers to criminal
liability for carrying their firearms with them when they travel from
p. 2759
Eonorable Ray Keller
Mr. Fred Toler
Page 5 (JM-613)
one jurisdiction to another, particularly since security officers
commissioned by the Texas Board of Private Investigators and Private
Security Agencies (who are not peace officers) traveling to and from
their places of assignment areexpressly exempted by subsection (5) of
section 46.03. The existence of the express exemption for private
security people while traveling to their essignments is a strong
indication that the general "traveling" exception was not thought to
furnish protection. If it did, the special security guard exemption
would be superfluous.
One other circumstance deserves mention. The intent of the
legislature that the section 46.02 offense be inapplicable to a peace
officer, even though he is not engaged in the discharge of his
official duties at the time, is also made plain by a statutory excep-
tion to that general exemption. Sectlon 46.04 makes it a felony for
an unauthorized person intentionally to go with a firearm on the
premises of a school, or on the premises of a polling place on the day
of an election, or in any government court or offices utilized by the
court, but it is a defense that the person was "in the actual dis-
charge of his official duties as a peace officer." If the legislature
had intended peace officers to be protected from prosecution in other
situations only when in the actual discharge of official duty, we
believe it would have specified the circumstances, as it did in
section 46.04. Cf. Penal Code 546.05; Senters v. State, 648 S.W.2d 30
(Tex. App. - Dal= 1983, pet. ref'd).
We conclude that a Texas peace officer, wherever in the state he
might be, is a peace officer twenty-four hours a day, although his
powers as a peace officer may be severely limited when he-is acting
outside his normal jurisdiction. As a consequence, section 46.03 of
the Penal Code makes a Texas peace officer immune from prosecution
under section 46.02 of the Penal Code.
SUMMARY
A Tel-aspeace officer, wherever in the state he
might be and whether engaged in the actual dis-
charge of his duties as a peace officer or not, is
immune from prosecution under section 46.02 of the
Penal Code for unlawfully carrying a handgun.
Very ruly yours,
.
s
JIW???T
Attorney General of Texas
JACK HIGETOWKR
First Assistant Attorney General
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Honorable Ray Keller
Mr. Fred Toler
Page 6 (JM-613)
MARY KELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Bruce Youngblood
Assistant Attorney General
p. 2761