The Honorable    Joe Max            Shelton                         Opinio’n    No.       H- 167                .-
County Attorney
Grayson  County                                                     Re:      Authority   of adult
Sherman,   Texas                                                             probation   officers,
                                                                             county attorneys       and
                                                                             their assistants      to
                                                          -
Dear   Mr.   Shelton:                                                        carry pistols

       You have       asked    our    opinion    on the authority         of adult    probation     officers
and of county attorneys          and their       assistants       to carry     pisto,ls    in carrying    out
certain official duties.

        Artic.le  483 of theT.exas    Penal Code prohibits     the carrying      of certain
weapons     including   a pistol.    There are several    exemptions      from its opera-
tion, among them “any peace officer           in the actual discharge       of his official
duty. ” Article      404, V. T. P. C.     The term “peace    officer”    is defined in
Article    2.12 of the Texas      Code of Criminal   Procedure      as follows:

               “The     following      are    peace   officers;

               “(1) Sheriffs         and their    deputies.

               “(2)   constables        and deputy     constables.

               “(3)   marsha,ls  or police officers               of an incorporated
                      city, town, or village.

               “(4)   rangers   and officers   commissioned   by the
                      Public  Safety Commission      and the Director                      of
                      the Department     of Public Safety.

               “(5)   investigators     of the district attorneys’,  criminal
                      district   attorneys’,   and county attorneys’    offices.




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The   Honorable     Joe Max       Shelton,     page      2 (H-167)




         “(6)   law   enforcement    agents           of the Alcoholic
                Beverage     Commission.

         “(7)   each member         of an arson investigating
                unit of a city,      county,  or the state.

         I’( 8) any private   person         specially      appointed     to
                executive   criminal         process.

         “(9) officers     commissioned     by the governing
                board of any state institution       of higher
                education,    public junior college     or the
                Texas State Technical      Institute.

         “(1O)officers     commissioned              by the Board       of Control

         “(11) game management     officers  commissioned                      by
               the Parks and Wildlife    Commission.   ”

     We recognize      that, although adult probation    officers     ordinarily    are
not peace officers,      they are legally    empowered   to arrest      a probationer
without a warrant       when ordered   to do so by the judge of the court who has
jurisdiction     of the probationer’s    case.   Article 42.12, 5 8, V. T. C. C. P.
When so acting they have the same rights as “peace              officers”    that other
private    individuals   would have under the provisions       of $ (8) of Article      2.12
of the Texas      Code   of Criminal         Procedure.

      Accordingly,   we hold that an adult probation    officer may be a peace
officer    exempt from the provisions   of ‘Article  483 of the Texas  Penal Code,
under some circumstances.

     Your second question      concerns    county attorneys    and their assistants
in the conduct of investigation.       Section (5) of Article     2.12 defines as among
peace officers,   “investigators     of the district  attorneys’,     criminal district
attorneys’,   and county attorneys’      offices.  ”

    We brlil:ve  that persons   “of” a county attorney’.+     office,   including
the county attorney   and hts assistilntz+.   while enyagrd     in investigacivc
work,  would bu classiliod    as pcacc: officer’s  unr!i:r Ibis provision      and Lhur




                                                p.    768
The   Honorable    Joe Max     Shelton,   page   3 (H-167)




exempt from the provisions          of Article   483 of the Texas    Penal Code.       We
do not feel that it matters      whether     the office has special    investigators;
the crucial   test is whether     the attorney     is carrying   out an investigation,
However,    it should be noted that Article          484 of the Penal Code exempts
peace officers    from the operation        of Article   483 only “in the actual dis-
charge   of his official   duty;” thus, only during actual investigations            would
a county attorney      or assistants    be entitled    to carry a pistol.

      Our opinion     as to probation     officers    as well as county attorneys      is
further    qualified    by the provisions      of $ 6a of Article    4413(29aa),   V. T. C. S. ,
which establishes        certain   minimum       standards    for employment     as a peace
officer   in both permanent         and temporary      capacities.     Except for peace
officers    employed     on a permanent        basis before     September   1, 1970, all
permanently        employed     peace officers     must meet educational       requirements
prescribed      by the Commission         within one year of the appointment.          Art.
4413 (29aa),.     $ 6(a), (‘b).   Persons     may not be appointed       as peace officers   on
even a temporary       basis unless they meet certain          age, physical,      and mental
requirements     prescribed      by the Commission.         Art.    4413 (29aa),    $6(c).    Any
person who accepts        appointment    as a peace officer       or any person who appoints
or retains   an individual.as      a peace officer    in violation    of the above mentioned
requirements     shall be fined from $100 to $1000.           Art.    4413 (29aa),    5 6(e).   There
is no special   definition    of “peace   officer ” in this Section,      so that the application
definition  would seem to be that contained          in Art.     2.12 of the Code of Criminal
Procedure.     These     provisions    would apply to assistant        county attorneys       but
not to county attorneys       who are exempt under 5 6(f) of the Act.

                                  SUMMARY

              Adult probation     officers     may be peace officers
         in connection    with certain      of their official   duties and
         may be entitled      to carry a pistol as an exemption          to
         Article    483, ‘Texas Penal Code, while carrying             out
         orders    of a court to arrest       a probationer    without a
         warrant.      County attorneys       and their assistants     may
         act as peace officers       while in the conduct of criminal
         inveotigatiuns.     and at such times would be exempt from
         the provisions     of Article     483, Texas     Peanl Code.      Pro-
         bation officers    and assistant       county attorneys     would be
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The   Honorable   Joe Max   Shelton,   page    4 (H-167)




              subject   to the minimum    standard      provisions   of
              Article   4413(29aa),  V. T. C. S.

                                        Very    truly   yours,




APPROVED:
        1




DAVID M. KENDALL,           Chairman
Opinion Committee
