The Honorable James White Chair, Committee on Corrections Texas House ofRepresentatives Post Office Box 2910 Austin, Texas 78768-2910
Dear Representative White: 

### KEN PAXTON ATTORNEY GENERAL OF TEXAS
August 27, 2018
OpinionNo. KP-0212 Re: Whether sections 46.02 and 46.03 ofthe Penal Code apply to presiding electionjudges licensed to carry a handgun under chapter 411 ofthe Government Code (RQ-0214-KP)

You ask about the authority ofcertain presiding electionjudges to carry a handgun in a polling place on election day. 1 The presiding electionjudge "is in charge ofand responsible for the management.and conduct ofthe election at the polling place ofthe election precinct that the judge serves." TEX. ELEC. CODE§ 32.071. Along with other duties, the Election Code requires presiding electionjudges to "preserve order and prevent breaches ofthe peace and violations" of the Election Code at polling places. Id. §32.075(a). Given their law enforcement duties, you question whether presiding electionjudges licensed under chapter 411 ofthe Government Code are exempt from subsection.46.03(a)(2) oft}le Penal Code, which prohibits carrying firearms in a polling place. See Request Letter at 1, 3. Section 46;03 ofthe Penal Code generally prohibits the carrying ofa firearm in multiple lqcations, including a polling place. TEX. PENAL CODE §46.03(a)(2). 2 "A person commits ari offense ifthe person intentionally, knowingly, or recklessly possesses or goes with a firearm

... onthe premises ofa polling place onthe day ofan election or while early voting is in progress."3 Id. Notwithstandingthatgeneralprohibition, section46.03 does not apply to specified individuals, including "an active judicial officer as ~efined by Section 411.201, Government Code, who is licensed to carry.a handgun under Subchapter H, Chapter 411, Government Code." Id. §46.15(a)(4). The Legislature defined "activejudicialofficer"to include, among others, "aperson

1 See Letter from Honorable James White, Chair, House Comm. on Corrs., to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Mar. 1, 2018), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter"). 2You also question whether the presiding electionjudges would be exempt from section 46.02 ofthe Penal Code. Request Letter at 3. Section 46.02 makes it an offense for a person to carry a handgun anywhere not "on the person's own premises orpremises undertheperson's control" oren routetotheperson's motorvehicle orwatercraft. TEX. PENAL CODE § 46.02(a). But section 46.02 does not apply to a person lawfully carrying a handgun with a license underchapter 411 ofthe Government Code. Id.§ 46.15(b)(6). Because you ask about only those presiding electionjudges licensed under chapter 411, we need not address section 46.02 further.
3Carrying a firearm in violation ofsubsection 46.03(a) is a third-degree felony. See id. § 46.03(g).The Honorable James White

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serving as ajudge orjustice of

... a district court." TEX. Gov'TCODE§ 41 l.201(a)(l)(A). Thus, a districtjudge with a license to carry a handgun may catty a handgun in the locations listed in section 46.03, including a polling place. TEX. PENAL CODE§ 46.15(a)(4). The Legislature did not include presiding electionjudges among those expressly exempted from Penal Code sections 46.02 and 46.03. See id. § 46.15. Yet inperforming their duties at the polling place, the Election Code gives presidingjudges "the power ofa districtjudge to enforce order and preserve the peace." TEX. ELEC. CODE§ 32.075(c). More than 100 years ago, a Texas court addressed whether that statutory authority in a predecessor statute allowed presidingjudges to carry arms to a polling location. See Hooks v. State, 158 S.W. 808, 808 (Tex. Crim. App. 1913). That court concludedthatbecause a presiding electionjudgehad the same power as a districtjudge to enforce order and keep the peace, and because a districtjudge could carry arms to a polling location, the presiding electionjudge likewise had authority to do so. Id. A court today would likely follow the analysis inHooks when construing the statutes in their current form and conclude that section 46.03 ofthe Penal Code does not apply to presiding electionjudges licensed under chapter 411 ofthe Government Code when performing their duties under section 32.075(a) ofthe Election Code. The presiding electionjudge's duties extend "fromthe time thejudge arrives at the polling place on election day until thejudge leaves the polling place after the polls close." TEX. ELEC. CODE§ 32.075(a). Regarding location, the presiding electionjudge's law enforcement authority exists "in th_e polling place and in the area within which electioneering and loitering are prohibited." Id. Only during that time and those locations does the presiding election judge possess the power of a districtjudge to enforce order and preserve the peace. Id. § 32.075(c). Thus, the presiding electionjudge's exemption from section 46.03 is limited to those times and locations. Recognizing thatpolling locations are located in a variety ofvenues, you also seek general guidance on a presiding electionjudge's authority to carry firearms in "polling places that are either government or non-government buildings." Request Letter at 3. Governmental entities use a wide variety ofbuildings as polling locations, including courthouses, libraries, schools, arid other government buildings. They also often use nongovernment buildings, such as grocery stores, churches, andprivately owned activity centers. Althoughpresiding electionjudges licensed under chapter411 are generally exemptfrom prosecutionunder subsection46.03(a)(2) while performing their duties at a polling place, your question acknowledges that otherprovisions ofthe Penal Code may limit their ability to carry firearms in certain polling locations.4

4The Election Coderequires a pollingplace in each precinct, and it establishes which officials designate the polling places in specific elections. See TEX. ELEC. CODE §§ 43.001 (requiring one polling place in each precinct), 43.002(a), (b) (requiring a county clerk to recommend a location for general elections and the commissioners court to designate the location). But it places few prerequisites on the location of a polling place. See id. § 43.03 l(c) (requiring a polling place to be in a public building "ifpracticable").The Honorable James White

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Section 46.035 ofthe Penal Code prohibits a license holder from carrying handguns in certain buildings, while the Election Code allows a governmental entity to consider using those same buildings as polling locations. Compare TEX. PENAL CODE§ 46.035(a)-(c), with TEX. ELEC. CODE § 43.031. 5 Penal Code subsection 46.035(a-1) prohibits a license holder from openly carrying a handgun on the premises ofboth public and private institutions ofhigher education. TEX. PENAL CODE § 46.035(a-1). Subsections (a-2) and (a-3) prohibit a license holder from carrying a concealed handgun in the locations on a campus ofan institution ofhigher education, public orprivate, where the institutionhas byrule prohibitedhandguns andprovidedproper notice under section 30.06 of the Penal Code. Id. § 46.035(a-1), (a-2); see also TEX. Gov'T CODE § 411.2031(d-1) (requiring an institution of higher education to establish reasonable rules regarding the carrying of concealed handguns on campus), (e) (authorizing a private or independent institution of higher education to establish rules prohibiting license holders from carrying handguns on campus). Because no exception applies to presiding electionjudges inthese locations, subsections 46.035(a-1), (a-2), and (a-3) prohibit a presiding electionjudge from openly carrying a handgun on any institution ofhigher education campus and from carrying a concealed handgun in a location on campus where the institution prohibits carrying a handgun by rule. Sections 30.06 and 30.07 ofthe Penal Code make it a criminal offense for a license holder to carry a concealed handgun and to openly carry a handgun, respectively, onproperty ofanother without consent when the license holder received notice forbidding carrying a handgun on the property. TEX. PENAL CODE §§ 30.06(a), .07(a). Those sections also establish methods for providingnoticeto prohibit a licenseholderfrom carrying ahandgun onto the property.6 In limited circumstances, governmental entities may post notice under sections 30.06 and 30.07, thereby making it an offense to carry handguns into the buildings for which they provide notice.7 A state agency or political subdivision may not prohibit the carrying of handguns on property it owns or leases unless Penal Code section 46.03 or 46.035 expressly allows the prohibition. TEX. Gov'TCODE §411.209 ("Wrongful Exclusion ofa Handgun License Holder").

5For some ofthe buildings and premises listed in Penal Code section 46.035, the Legislature established an exemption for "activejudicial officers," as it did for section 46.03: "It is a defense to prosecution under Subsections (b) and (c) that the actor, at the time ofthe commission ofthe offense, was ... an activejudicial officer

...." TEX. PENAL CODE § 46.035(h-I). Thus, section 46.035 would not prohibit a presiding election judge licensed under chapter 4II ofthe Government Code from carrying a handgun while performing the duties ofan electionjudge at the locations listed in subsections 46.035(b) and (c). That exemption, however, does not apply to the buildings and premises listed in subsections (a-I) and (a-2). 6A "person receives notice ifthe owner ofthe property or someone with apparent authority to act for the owner provides notice to the person by oral or written communication." Id. §§ 30.06(b), .07(b). Section 30.06 describes how to provide notice by written communication to forbid a license holder with a concealed handgun. Id. § 30.06(c)(3). Section 30.07 similarly establishes how to provide a notice by "written communication" for purposes ofprohibiting a license holder with an openly carried handgun. Id. § 30.07(c)(3). 7Sections 30.06 and 30.07 establish specific language to use on a sign to prohibit carrying a handgun onto the property. Id. §§ 30.06(c)(3)(A), .07(c)(3)(A). Whether it is acceptable to use other language or methods to post notice prohibiting the carrying ofhandguns is a question currently at issue in Paxton v. City of Austin, Cause No. D- · I-GN-16-003340, in the 53rd District Court ofTravis County, Texas.The Honorable James White

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Relevant to potential polling locations, section 46.03 prohibits carrying weapons "onthe physical premises ofa school or educational institution" and "onthe premises ofany government court or offices utilized by a court," among other locations, unless exceptions apply.8 TEX. PENAL CODE §46.03(a)(l), (3). Ifa governmental entity posts notice under 30.06 and 30.07 in those locations, a license holder who carries a firearm could be in violation ofthose provisions and prosecuted for trespass by a license holder. Id. §§ 30.06(a), .07(a). Yet sections 30.06 and 30.07 except from the application of those provisions the carrying of a handgun on property owned or leased by a governmental entity that "is not apremises or otherplace on whichthe license holder is prohibited from carrying the handgununder Section 46.03

...." Id.§§ 30.06(e), .07(e). As discussed above, section 46.03 would not apply to a presiding electionjudge licensed under chapter 411 carrying a firearm while performing presiding election judge duties. Id. §46.15(a)(4); TEX. ELEC. CODE § 32.075(c). Thus, sections 30.06 and 30.07 would not applyto apresiding electionjudgelicensed under chapter 411 who serves at a polling location on property where section 46.03 otherwise prohibits carrying a handgun ifthe property is owned or leased by a governmental entity. So those sections would not prohibit a presiding election judge licensed under chapter 411, while performing electionjudge duties, from carrying a handgun at a polling place located in a school or on the premises of a government court or offices utilized by the court. 9 Cf TEX. PENAL CODE §46.035(a-l), (a-2), (a-3) (making it an offense to carry handguns on institutions of higher education whenprohibitedby rules ofthe institution, notwithstanding exemptions created in other sections). The exceptions to 30.06 and 30.07 apply only to carrying a handgun on "property

. owned or leased by a governmental entity" and do not extend to privately owned property. Id. §§ 30.06(e), .07(e). We find no law that exempts presiding electionjudges from those provisions when onprivateproperty. Thus, ifapollingplace is onprivateproperty andthe owner or someone with apparent authorityto actfor the ownerprovidesnotice, apresiding electionjudgewould likely be prohibited from carrying a firearm to that location. 10

8Prioropinions ofthis office discuss the meaning ofpremises in the context ofsection 46.03. See Tex. Att'y Gen. Op. Nos. KP-0050 (2015) at 1-2; KP-0047 (2015) at 3. The scope ofthe terms "premises" and "building or portion ofabuilding" is also an issue raised in Paxton v. City of Austin, Cause No. D-1-GN-16-003340, in the 53rd District Court ofTravis County, Texas, 9Section 37.125 ofthe Education Code makes it an offense to intentionally exhibit a firearm "in a mariner intended to cause alarm or personal injury" on school property. TEX. EDUC. CODE § 37.125(a). Election judges carrying ahandgunto apolling location at a school should considerthis provision when deciding how they will carry. 10To the extent that the political subdivision holding the election has a contract or arrangement with the private property owner about the polling location, the ability to carry a firearm on the property during the election may depend on the specific terms ofthat agreement and should be evaluated on a case-by-case basis.The Honorable James White

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### SUMMARY Section 46.03 ofthe Penal Code, which creates an offense for carrying firearms at multiple locations including a polling place, does not apply to presiding electionjudges licensed under chapter 411 ofthe Government Code when performing their duties under section 32.075(a) ofthe Election Code. Subsections 46.035(a-l), (a-2), and (a-3) ofthe Penal Code prohibit a presiding electionjudge from openly carrying a handgun on any institution ofhigher education campus and from carrying a concealed handgun in a location on campus where the institution prohibits carrying a handgun by rule. Sections 30.06 and 30.07 ofthe Penal Code could prohibit a presiding election judge from carrying a handgun to a polling location on private property ifproper notice was given under those sections.

JEFFREY C. MATEER First Assistant Attorney General BRANTLEY STARR Deputy First Assistant Attorney General VIRGINIA K. HOELSCHER Chair, Opinion Committee Very truly yours,

KEN PAXTON Attorney General ofTexas