.- 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

DearMr. Toler:

Youhave 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 ormagistrate a 'peace

officer' as that term isused inChapter 415 of the Government Code?

2. Is each judge or amagistrate a 'peace officer' as that term isused inthe Code of Criminal Procedure?

3. Iseach judge ormagistrate a 'peace officer' as that term isused 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 iseach also covered by all the other provisions ofthat 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. Ifm judge ormagistrate isa '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 aspeace officer experience. You state they contend:

As peace officers, they can lawfully carry handguns and should be credited by the commission under itsruleswith onemonth 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 orwhen 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 ofpeace officers, maintaining training programs and requiring weapons proficiency for persons seeking certification aspeace officers.

Peace officer isdefined in section 415.001 of the Government Code as follows:

'Peace officer,' for thepurposes of this Act, means any oerson emnloved or anvointed
as aneace officer under law, includina but not limited to awerson so desianated bv Article 2.12, Code of Criminal Procedure. or bv Section 51.212 Code -. . . . (Emphasi~rad~~d?f4 Education

A judge ormagistrate isnot one of the classifications
orpersons recognized as apeace 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 inarticle 2.12 of the Code ofCriminal Procedure and sections 52.212 or 51.214 of the Education Code. Section 415.001 does include anv werson emwloved or annointed as aneace officer under law. ,-

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Since a judge ormagistrate does not comewithin any of the foregoing statutory definitions of a "peace officer," the resolution ofyour questions turns onwhether a judge or amagistrate1 isaperson employed or appointed as a peace officer under law.

As ordinarily understood the term lljudge*' is limited to onewho conducts or presides over a court of justice. 47 Tex. Jur. 3dJudaes 5 1. A "judge" isan officer or member of the tribunal constituting a court. 23Words and Phrases Judae at 252.
Article V, section 1,of the Texas Constitution provides that judicial power shall bevested incourts designated therein, and in such other courts asmay be provided by law. Themeaning of judicial power isdiscussed in the Interpretive Commentary ofArticle V, section 1:

Judicial power isoften 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 inMorrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641 (1933), it is the power of the courts todecide 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 aremagistrates 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 ofAppeals, 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 criminaldistrict courts of Dallas County, the county judges, the judges of the county courts at law, judges ofthe county criminal courts, the justices of thepeace, themayors and recorders and the judges of themunicipal courts of incorporated cities or towns.

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judicial power determination ismade of what the law is inrelation to some existing thing already done orhappened.

The statutory duties of a peace officer can be generally summarized as follows:

Apeace officer isrequired by statute to execute all lawful process issued tohim by anymagistrate or court. An officer is also required to preserve thepeace within the officer's jurisdiction by all lawful means. In every casewhere 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 inorder that they **may**be taken before theproper magistrate or court andbe tried. As such, they are given power by statute tomake arrests on criminal charges under authority of a warrant, or under proper circumstances to make arrests without warrant.

59Tex. Jur. 3d Police 02.

We conclude that a judge ormagistrate isnot "aperson employed or appointed asapeace 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 ofpersons recognized as peace officers under article 2.12 or any other provision of the Code ofCriminal 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 isdefined inthe 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.

Inyour last question you ask whether a judge or a **magistrate** isapeace officer and **may** carry agun under any other theory. Section 46.02 of the Penal Code prohibits 1 -.

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: A..

,- individuals from carrying handguns, but section 46.03

exempts peace officers from thisprohibition.
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 andmagistrates peace officers and the effect on those opinions of subsequent amendments to the Penal Code and the Code ofCriminal Procedure. The practice commentary provides inpertinent part as follows:

Previously, peace officers generally were exempt, and the Court of Criminal Appeals reluctantly concluded that Tex. Con&. art. v, § 12, made allmagistrates 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 itspreference 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 forpurposes 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.

Ina letter opinion of this office it was concluded that since article 2.12 of the Code ofCriminal Procedure does not include justices of thepeace ormagistrates within the definition of peace officer, they do not come under the class ofpersons excluded from theprohibition of carrying a gununder article 46.02 of the Penal Code. Letter opinion 88-70 (1988). However, itwas stated that since a judge has control of the courtroom and the authority under article 46.04 of the Penal Code topermit others to bring agun into the courtroom, the judge has authority topossess agun in the courtroom.

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Upon further review we remain convinced of the soundness of the conclusion reached inLO-88-70. Article V, section 1of 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, inCourts of Justices of the Peace, and in such other courts asmay be provided by law.

Itwould not make sense for judicial officers to possess both judicial power to preside over acourt and at the same time possess the authority of apeace officer to execute processes issued by the court and arrest offenders. This conclusion appears tobe consistent with the common law meaning of the term "conservator of thepeace."

In Ex carte Levy, 163S.W.2d 529 (Ark. 1942), in addressing themeaning ofaprovision in its constitution making supreme court judges conservators of thepeace, the court found that such officials

were common-law officers, and their duties as suchwere toprevent and arrest for breaches of the neace intheir 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 ofa **magistrate** when an offense is committed inhispresence. Article 14.02provides:

A veace officer **may** arrest, without warrant, when a felony orbreach of thepeace has been committed inthenresence or within theview of amaaistrate. and suchmaaistrate verbally orders the **arrest** of the offender. (Emphasis added.)
Other statutes deal with the duties of **a magistrate**  when an offense iscommitted within his presence orhearing.
Article 6.01 of the Code of Criminal Procedure provides: 1 -.

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It isthe duty of every magistrate, when hemay have heard, in anymanner, that a threat has beenmade by oneperson to do some injury tohimself or theperson or property of another, including theperson or property ofhis spouse, immediatelv toaive notice to someveace officer, insorder that such peace officer may use lawful means toprevent the injury. (Emphasis added.)
Article 6.02 of the Code ofCriminal Procedure states:
If,within the hearina of a maaistrate, oneperson shall threaten to take the life of another, including that ofhis spouse, or himself, themagistrate shall issue awarrant for the arrest of the person making the threat, or incase of emergency, hemay himself immediately arrest such person. (Emphasis added.)
Article 6.03 of the Code of vides: Criminal Procedure proWhenever, in thewresence orwithin the observation of amaaistrate, an attempt is made by oneperson to inflict an injury himself or to the person upon or property of another, including theperson orproperty of his spouse, it ishis duty touse all lawful
means to prevent the injury. This may be done, either by verbal order to a peace officer to interfere andprevent the injury,
orby the issuance of an order of arrest against the offender, orby arresting the offender: forwhich purpose hemay call upon allpersons present to assist inmaking the arrest. (Emphasisadded.)

A common thread running through the terms "conservator of the peace" and llmagistrateV'isthat they have certain powers when an offense iscommitted in their presence. Neither at common lawnor inthe foregoing statutes are such officials clothed with the authority ofapeace officer. On the contrary, the statutes clearly emphasize the distinction between the duties of amagistrate and a peace officer. Judges and magistrates are not included in the lengthy classification ofpersons'recognized aspeace officers under article 2.12 of the Code of Criminal Procedure and neither
common lawnor statutory construction lends credence to such

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aconstruction. Judges ormagistrates 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 inLO-88-70, a judge ormagistrate having the control of the courtroom and the authority to permit others to bring a gun into the courtroom would have authority topossess agun inthe courtroom.

SUMMARY

A judge or magistrate is not a peace officer as that term isused inchapter 415 of the Government Code. Nor is a judge or magistrate apeace officer as that term is used inthe Code of Criminal Procedure and the Penal Code. Judges ormagistrates may not lawfully carry handguns.

JIM MATTOX Attorney General ofTexas

MARY KELLER First Assistant Attorney General

LOUMCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared by Tom G. Davis Assistant Attorney General

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