. 

December 31. 1986 

Honorable Ray Keller 

Chairman 

Committee on Law Enforcement 

Texas House of Representatives 

P. 0. Box 2910 

Austin, Texas 78769 

Opinion No. JM-613 

Re: Whether it is a crime for 

a peace officer to carry a 

handgun while outside his 

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 department) , 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 inannlicable to certain oeoole. 

inapplicable to a person 

Previouslv. it made section 46.02 

'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 discharging 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 discharging 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 authority or power to make a warrantless arrest of 

appellant for' committing a traffic offense, 

because he was then acting outside of his jurisdictfonal 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 demonstrate thd~dlsturbiag effect of 

enjoined to construe statutes 

unreasonable or absurd results. 

165 (1964). 

If peace officers may not 

jurisdictions without committing 

times while escorting captured 

. . . . 

a narrow interpretation. Courts are 

in a way, if possible, to avoid 

See 53 Tex. hr. 2d Statutes 55126. - 

carry handguns outside their normal 

a crime, they cannot be armed at all 

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 coasait a 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 diretit and 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 enforcement 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 exception 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 discharge 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-as peace officer, wherever in the state he 

might be and whether engaged in the actual discharge 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 

s 

ruly yours, 

. 

JIW???T 

Attorney General of Texas 

JACK HIGETOWKR 

First Assistant Attorney General 

p. 2760 
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