May 30, 1989
Honorable Fred Toler Opinion No. JM-1050
Executive Director
Texas Commission on Law Re: Clarification of Attorney
Enforcement Officer General Opinion JM-1028 (1989)
Standards and Education (RQ-1715)
1606 Headway Circle, Xl00
Austin, Texas 78754
Dear Mr. Toler:
On March 17, 1989, .we issued Attorney General Opinion
JN-1028 which.concluded in answer to the last question that
a judge or magistrate is not a peace officer for purposes
of section 46.03 of the Penal Code, which excepts peace
officers from the prohibition against carrying hand guns set
out in section 46.02 of the code. We have received letters
questioning this conclusion on the ground that article V,
section 12, of the Texas Constitution provides that judges
are conservators of the peace and that the Court of Criminal
Appeals has held that conservators of the peace are peace
officers within the exemption from the prohibition against
carrying guns. &S Patton v. State, 86 S.W.Zd 774 (.Tex.
Crim. App. 1935) (justice of the peace); Tiao tt V. -State,
189 S.W. 485 (Tex. Crim. App. 1916) (judge oef corporation
court): Hooks v. State, 158 S.W. 808 (Tex. Crim. App. 1913)
(presiding officer of election, with power of district judge
to preserve order): Jones v. State, 65 S.W. 92 (Tex. Crim.
App. 1901) (county judge).
We have reviewed the conclusion of Attorney General
Opinion JM-1028 and have determined that it is correct.
In view of the questions that have been directed to us,
however, we will amplify the reasoning that led us to this
conclusion with particular reference to the opinions of the
Court of Criminal Appeals.
Jones v. State, the earliest case on this question,
construed the exemption from the provision on unlawfully
carrying arms. The exemption provided in pa*: "The
preceding article shall
officer . . . ,I' Penal Co~~tartaPP~~9 ::89;): ' Tke EztzE
found no indication that the legislature intended to limit
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Honorable Fred Toler - Page 2 (JM-1050)
the exemption to the peace officers listed in the pre-
decessor of article 2.12 of the Code of Criminal Procedure.
The Jones court cited article V, section 15, of the
Texas Constitution, which designates a county judge as
a conservator of the peace, and quoted the following
dictionary definition: "A conservator of the peace is an
officer authorized .to preserve or maintain then public
peace." Jones v. State, suura, at 92. It concluded that it
O'~~~ld therefore seem to followt' that a conservator of the
peace is a peace officer. L
The court made it clear that the county judge's
authority to carry a gun was not granted by the constitution
but was a matter for the legislature to decide, stating as
follows:
Of course, it would have been competent for
the legislature, in enacting the pistol law,
to have prescribed what officers (naming
them) were authorized to carry pistols; but
when they used the general term, excluding
from the operation of the law all 'peace
officers,' it applied as well to those who
were constituted peace officers under the
constitution as to those who were created
peace officers by the act of the legislature.
The courts in &Q&, Tiouett, and patton felt bound to
apply the reasoning of Jones to judicial officers designated
conservators of the peace by article V, section 12, of the
Texas Constitution, but they did not necessarily find it
persuasive. The opinion in finoett stated as follows:
Were this an original proposition, the
writer would hold that the Legislature . . .
intended and in fact did exempt only such
officers as'it (the Legislature) had defined
as peace officers in article 43 [the pre-
decessor of article 2.121 of the Code of
Criminal Procedure.
Tiooett v. State, suora, at 486.
The Patton court was "constrained to hold" in keeping
with Jones and Tinvett, that the justice of the peace was
within the exemption from the hand gun law. Patton V.
State, suDra, at 776.
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Honorable Fred Toler - Page 3 (JM-1050)
.
An officer designated a conservator of the peace by the
constitution does not have the full range of statutory
authority that a peace officer has, as shown by other
opinions of the Court of Criminal Appeals. In Satterwhite
v. State, I7 S.W.2d 823 (Tex. Crim. App. 1929), the court
considered the authority of a justice of the peace to arrest
a person without a warrant. In addressing this question,
the court was concerned l'solely with appellant's right as a
private person t.o arrest without warrant." L at 825. The
Satterwhite court went on to state as follows:
While this court has held that a magistrate
is a peace officer within the meaning of the
terms of article 484, P.C. 1925, which among
other things, makes inapplicable to peace
officers the provisions of article 483, P.C.
1925, defining the offense of unlawfully
carrying arms, we have also held that the
duties of peace officers as defined by the
statute are broader than those of a justice
of the peace. A justice of the peace is a
magistrate. Article 33, C.C.P. 1925. Under
the statute relating to the duties of peace
officers, a justice of the peace is not
classified as a peace officer. Article 36,
C.C.P. 1925. (Citations omitted.)
a; m Davis v. State, 2;; i.;. 1;;; ($I?. Grim. App.
1925); Morawietz v. State, . . . Cram. APP.
1904).~
Thus, it is the legislature's prerogative to decide
which powers of peace officers should be granted to con-
servators of the peace. The Texas .Constitution does not
vest conservators of the peace with all powers of peace
officers. If it did, a Texas judge probably would not be a
"neutral and detached magistrate" as defined by the United
States Supreme Court, and the arrest and search warrants he
issued would be invalid because they did not comply with the
requirements of the Fourth Amendment. See. e.a, Lo-Ji
Sales, Inc. v. New York, 442 U.S. 319 (1979); Shadhick v.
Citv of m, 407 U.S. 345 (1972): Annot., 32 L.Ed.2d 970
(1973) (law enforcement officer or peace officer does not
qualify as a neutral and detached magistrate). The narrow
powers that accompany the title "conservator of the peace"
are described on pages 7 and 8 of Attorney General Opinion
JM-1028 (1989) and also in a Code of Criminal Procedure
provision first enacted in 1846:
Each sheriff shall be a conservator of the
peace in his county, and shall arrest all
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Honorable Fred Toler - Page 4 (JM-1050)
.
offenders against the laws of the State, in
his view or hearing, and take them before the
proper court for examination or trial. . . .
Code Crim. Proc. art. 2.17; Acts 1846, 1st Leg., § 7, at
265.
The 1973 revision of the Penal Code, unlike prior
versions of the code, included a definition of "peace
officer" for purposes of the code:
(a) In this code:
. . . .
(25) 'Peace officer' ~means a person so
designated by the Code of Criminal Procedure,
1965.
Penal Code 5 l.O7(a)(25). Article 2.12 of the Code of
Criminal Procedure, which designates various persons as
peace officers, does not include judges or magistrates.
The Penal Code provision construed in Jones, Hooks,.
Tiooett, and Patton was not limited by a legislative defini-
tion of "peace 0fficer.l' Section 46.03 of the Penal Code is
subject to the definition of "peace officer*' quoted above.
We now look to the statutory definition, and not to pre-1973
case law, to answer the last question. in JM-1028. We
reaffirm our answer to the last question in Attorney General
Opinion JM-1028.
SUMMARY
The Penal Code provision construed in Jones
. State, 65 S.W. 92 (Tex. Crim. App. 1901) and
its progeny was not limited by a legislative
definition of "peace officer." Section 46.03
of the Penal Code is subject to the definition
of "peace officer" in section l.O7(a)(25) of
the Penal Code. We now look to the statutory
definition, and not to pre-1973 case law, to
answer the last question in JM-1028. Attorney
General Opinion JW-1028 is affirmed.
JIM MATTOX
Attorney General of Texas
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Honorable Fred Toler - Page 5 (JM-1050)
MARYKELLER
First Assistant Attorney General
ImJ MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
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