                        May 30, 1989



Honorable Fred Toler          Opinion No. JM-1050
Executive Director
Texas Commission on Law       Re: Clarification of Attorney
   Enforcement Officer        General Opinion JM-1028 (1989)
   Standards and Education    (RQ-1715)
1606 Headway Circle, Xl00
Austin, Texas   78754

Dear   Mr. Toler:

     On March 17, 1989, .we issued Attorney General Opinion
JN-1028 which.concluded in answer to the last question that
a judge or magistrate   is not a peace officer for purposes
of section 46.03 of the Penal Code, which excepts peace
officers from the prohibition against carrying hand guns set
out in section 46.02 of the code. We have received    letters
questioning this conclusion   on the ground that article V,
section 12, of the Texas Constitution provides that judges
are conservators of the peace and that the Court of Criminal
Appeals has held that conservators of the peace are peace
officers within the exemption   from the prohibition  against
carrying guns. &S     Patton v. State, 86 S.W.Zd 774     (.Tex.
Crim. App. 1935) (justice of the peace); Tiao tt V.    -State,
189 S.W. 485   (Tex. Crim. App. 1916) (judge oef corporation
court): Hooks v. State, 158 S.W. 808 (Tex. Crim. App.    1913)
(presiding officer of election, with power of district judge
to preserve order): Jones v. State, 65 S.W. 92 (Tex. Crim.
App. 1901) (county judge).

     We have reviewed the conclusion of Attorney     General
Opinion JM-1028  and have determined   that it is correct.
In view of the questions   that have been directed   to us,
however, we will amplify the reasoning that led us to this
conclusion with particular reference to the opinions of the
Court of Criminal Appeals.

     Jones v. State, the earliest case on this question,
construed the exemption from the provision   on unlawfully
carrying arms.    The exemption provided   in pa*:    "The
preceding  article shall
officer . . . ,I' Penal Co~~tartaPP~~9 ::89;): ' Tke EztzE
found no indication that the legislature intended to limit




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Honorable Fred Toler - Page 2    (JM-1050)




the exemption  to the peace officers    listed in the pre-
decessor of article 2.12 of the Code of Criminal Procedure.

     The Jones court cited article V, section     15, of the
Texas Constitution,   which designates   a county judge as
a conservator   of the peace, and quoted the         following
dictionary definition:   "A conservator of the peace is an
officer authorized .to preserve     or maintain   then public
peace."   Jones v. State, suura, at 92. It concluded that it
O'~~~ld therefore seem to followt' that a conservator of the
peace is a peace officer. L

     The court made it clear that the county         judge's
authority to carry a gun was not granted by the constitution
but was a matter for the legislature to decide, stating as
follows:

        Of course, it would have been competent    for
        the legislature, in enacting the pistol   law,
        to have prescribed    what officers    (naming
        them) were authorized to carry pistols;    but
        when they used the general term, excluding
        from the operation   of the law all     'peace
        officers,' it applied as well to those who
        were constituted  peace officers under the
        constitution as to those who were     created
        peace officers by the act of the legislature.



     The courts in &Q&,   Tiouett, and patton felt bound to
apply the reasoning of Jones to judicial officers designated
conservators of the peace by article V, section 12, of the
Texas Constitution,  but they did not necessarily find it
persuasive.  The opinion in finoett stated as follows:

           Were this an original proposition,    the
        writer would hold that the Legislature . . .
        intended and in fact did exempt only such
        officers as'it (the Legislature) had defined
        as peace officers in article 43 [the pre-
        decessor of article 2.121 of the Code of
        Criminal Procedure.

Tiooett v. State, suora, at 486.

     The Patton court was "constrained to hold" in keeping
with Jones and Tinvett,   that the justice of the peace was
within the exemption    from the hand gun law.    Patton V.
State, suDra, at 776.




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Honorable Fred Toler - Page 3    (JM-1050)


                                                                .



     An officer designated a conservator of the peace by the
constitution does not have the full range of statutory
authority that a peace officer has, as shown by other
opinions of the Court of Criminal Appeals.     In Satterwhite
v. State, I7 S.W.2d 823 (Tex. Crim. App. 1929), the court
considered the authority of a justice of the peace to arrest
a person without   a warrant.  In addressing this question,
the court was concerned l'solely with appellant's right as a
private person t.o arrest without warrant."  L    at 825. The
Satterwhite court went on to state as follows:

        While this court has held that a magistrate
        is a peace officer within the meaning of the
        terms of article 484, P.C. 1925, which among
        other things, makes inapplicable     to peace
        officers the provisions of article 483, P.C.
        1925, defining the offense of unlawfully
        carrying arms, we have also held that the
        duties of peace officers as defined by the
        statute are broader than those of a justice
        of the peace. A justice     of the peace is a
        magistrate.  Article 33, C.C.P. 1925. Under
        the statute relating to the duties of peace
        officers, a justice of the peace       is not
        classified as a peace officer. Article     36,
        C.C.P. 1925.   (Citations omitted.)

a;    m   Davis v. State, 2;; i.;. 1;;; ($I?.    Grim.   App.
1925); Morawietz v. State,     . .          .    Cram.   APP.
1904).~

     Thus, it is the legislature's prerogative     to decide
which powers of peace officers should be granted to con-
servators of the peace.     The Texas .Constitution does not
vest conservators   of the peace with all powers of peace
officers.   If it did, a Texas judge probably would not be a
"neutral and detached magistrate"   as defined by the United
States Supreme Court, and the arrest and search warrants   he
issued would be invalid because they did not comply with the
requirements of the Fourth Amendment.       See. e.a,   Lo-Ji
Sales, Inc. v. New York, 442 U.S. 319 (1979); Shadhick     v.
Citv of m,      407 U.S. 345 (1972): Annot., 32 L.Ed.2d   970
(1973) (law enforcement   officer or peace officer does not
qualify as a neutral and detached magistrate).    The narrow
powers that accompany the title "conservator of the peace"
are described on pages 7 and 8 of Attorney General Opinion
JM-1028 (1989) and also in a Code of Criminal       Procedure
provision first enacted in 1846:

           Each sheriff shall be a conservator of the
        peace in his county, and shall arrest all




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Honorable Fred Toler - Page 4               (JM-1050)


                                                                   .



        offenders against the laws of the State,   in
        his view or hearing, and take them before the
        proper court for examination or trial. . . .

Code Crim. Proc.           art. 2.17;     Acts 1846, 1st   Leg., § 7,    at
265.

     The 1973 revision of the Penal Code, unlike prior
versions of the code, included a definition  of "peace
officer" for purposes of the code:

           (a)         In this code:

           .   .   .   .

            (25) 'Peace officer' ~means a person   so
        designated by the Code of Criminal Procedure,
        1965.

Penal Code 5 l.O7(a)(25).    Article  2.12 of the Code                   of
Criminal Procedure,  which designates various    persons                 as
peace officers, does not include judges or magistrates.

     The Penal Code provision   construed in Jones, Hooks,.
Tiooett, and Patton was not limited by a legislative defini-
tion of "peace 0fficer.l' Section 46.03 of the Penal Code is
subject to the definition  of "peace officer*' quoted above.
We now look to the statutory definition, and not to pre-1973
case law, to answer the last question. in JM-1028.        We
reaffirm our answer to the last question in Attorney General
Opinion JM-1028.

                                SUMMARY

          The Penal Code provision construed in Jones
        . State, 65 S.W. 92 (Tex. Crim. App. 1901) and
       its progeny was not limited by a legislative
       definition of "peace officer."   Section 46.03
       of the Penal Code is subject to the definition
       of "peace officer" in section l.O7(a)(25)    of
       the Penal Code. We now look to the statutory
       definition, and not to pre-1973 case law, to
       answer the last question in JM-1028.   Attorney
       General Opinion JW-1028 is affirmed.




                                             JIM     MATTOX
                                             Attorney General of Texas



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Honorable Fred Toler - Page 5      (JM-1050)




MARYKELLER
First Assistant Attorney General

ImJ MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General




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