.

December 31. 1986

HonorableRay Keller Chairman Committeeon Law Enforcement TexasHouse ofRepresentatives P. 0. Box 2910 Austin,Texas 78769 OpinionNo. 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 dischargeof his duties Mr. Fred Toler, ExecutiveDirector as a peace officer Texas Commissionon Law Enforcement Officer Standardsand Education Suite 100. 1606Beadway 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 amisdemeanor or felony if he carries a,handgun either (1) while he is "off duty" (i.e.9not actually carrying out duties assigned him by his depart

### ment), or (2) while he is outside the limits of the territory 

### over which his departmenthas law enforcementjurisdiction.
Section 46.02 of thePenal Codeprovides that a person commitsan offense if he intentionally, knowingly, 

### or recklessly carries a handgun on or about his person. If the gun is ~carriedon premises licensed or issued a permit for the sale or service of alcoholic beverages, the crime Is a felony of the thirddegreepunishableby not less than twoyearsnor more than tenyears in the statepenitentiary. See Penal Code 512.34. If the crime occurs elsewhere, the punishment F(either or both) a finenot to exceed $2,000 or confinementin 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 *dischargeof his official duties as a peace officer, a member of the armed forces or national guard. or a guard employedby a penal institution." Also exemptedwas 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, 

### section46.03was amended. See Acts 1981, 67th Leg.. ch. 552. at 2273.

The section 46.02 lawmaking the carrying of a handgun unlawful is still inapplicable to a soldier or penitentiary guard when he is



### p. 2756Honorable 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. Salaxarv. State, 169S.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-fourhours a day and possesses the fullpowers 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); Simmav. 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 peacewithin his jurisdictionat 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 Christopherv. 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, althoughhis power to actmay be more limited outside thoseboundaries thanwithin them.

The court in Christopherheld that a gamewarden was empowered to arrest a person (withouta warrant) for speeding on a public highway inasmuchas section 153, erticle 6701d,,V.T.C.S..authorizes 3 peace officer to do so. A gamewarden was then a peace officerwhose normal powers of warrantless arrest extended only to violations of the law relating to game, fish, andbirds, andwhose 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, 68thLeg., 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 immunitiesas peace officers coextensivewith theboundaries of the state. See Parks 6 Wild. Code 111.019(b). -

p. 2757HonorableKay 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 committedonly 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 CriminalAppeals overruled itsholding in Christopher that a specially commissionedpeace officer was lawfully authorized to wake traffic arrests anywhere in the state (andwas thereby lawfully discharging an official duty), but in doing so the Preston court expresslyheld that Shefferwas a peace officerwhen he was assaulted
even thoughhe was outsidehis jurisdictionand was not lawfully dischargingan officialduty.

The court said:

We hold that when Shaffer was assaulted by appellant,Shafferwas, pursuant to theprovisions ofArt. 2.12,e, a peace officer. Rowever,we also hold that Shafferwas 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 jurisdictfonal limits as prescribed by Section 51.203, supra. We expressly overrule Christopher v. State, 8upta, that a specially commissionedpeace 

### officerof this State, suchas Shaffer,has lawful authority to make traffic arrests anywhere in the State of Texas.

Because Sbefferwas not lawfullydischargingan 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.

Prestonv. State, 700 S.W.2d at 230.


### Section46.03 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 personwho has jurisdictionas 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 isnot then engaged in the actual discharge

### ofhis officialduties.

p. 2758Honorable 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 officersby 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 jurisdictionswithout committing times while escorting captured

. . .

. a 

### narrowinterpretation. 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. Smithv. 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 thatwhen someone goesonly a distance that can be traveled in two hours or less, the travel exception isnot applicable. We do sot believe the legislature intended to put peace officers in such s dilemma.

The defense of "necessity"would be equallyunavailingunless the officerbelieved possession of theweapon was immediatelynecessary 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 themost diretitand accessible route to the scene of a crime-in-progressor other 

### emergency. In 

### ouropinion' 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.arenumerous.

### Airportsecurity 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 separatedby intervening "jurisdictions." Are they guilty of a trims whenever they stroll from one suchplace to anotherwhile carrying their guns?

We do not believe the legislature intended to hamper law en

### forcementin that way or to expose peace officers to criminal liability for carrying their firearmswith themwhen they travel from

p. 2759EonorableRay Keller Mr. Fred Toler Page 5 (JM-613)

one jurisdiction to another, particularly since security officers commissionedby the Texas Board of Private Investigators and Private SecurityAgencies (who are not peace officers) traveling to and from theirplaces of assignmentareexpressly exemptedby 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" exceptionwas 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 offensebe inapplicable to a peace officer, even though he is not engaged in the discharge of his official duties at the time, is alsomade plain by a statutoryexception to that general exemption. Sectlon 46.04makes it a felony for
an unauthorized person intentionally to go with a firearm on the premisesof a school,

### oron thepremises of a polling place on the day of an election,or in any government court or offices utilizedby the court, but 

### it is a defense that the person was "in the actual discharge ofhis officialduties as a peace officer." If the legislature had intendedpeace 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;Sentersv. State, 648 S.W.2d 30 (Tex.App. - Dal= 1983,pet. ref'd).

We conclude that a Texas peace officer,

### whereverin the statehe 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 thePenal Code.

SUMMARY

A Tel-as

peace officer,wherever in the statehe might be and whether engaged in the actual dischargeof his dutiesas a peace officeror not, is immune fromprosecutionunder section 46.02 of the Penal Code forunlawfully carryinga handgun.
Very

s rulyyours,

.

JIW???T AttorneyGeneral of Texas

JACKHIGETOWKR FirstAssistantAttorneyGeneral

p. 2760HonorableRay Keller



### Mr.Fred Toler Page 6 (JM-613)

MARY KELLER ExecutiveAssistantAttorney General

RICK GILPIN Chairman,Opinion Committee
Preparedby BruceYoungblood AssistantAttorney General

p. 2761