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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 pur1606 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 nonapplicable 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 

-. Code . . . (Emphasi~rad~~d?f4 

Education 

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. 

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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 provides that judicial power shall be vested in courts designated 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 criminal 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. 

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 

other theory. Section 46.02 of the Penal Code prohibits 

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p. 5313 
Honorable Fred Toler - Page 5 (JM-1028) 

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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 

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 magistrates 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 addresses 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 provides: 

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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, ins order 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 himself immediately arrest such person. 

(Emphasis added.) 

Article 6.03 of the Code of 

vides: 

Criminal Procedure proWhenever, in the wresence or within the 

observation of a maaistrate, an attempt is 

made by one person to inflict an injury 

himself or to the person 

upon 

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