                           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 pur-
     1606 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 non-
        applicable  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                 Education
        -.
        Code   . . . (Emphasi~rad~~d?f4

     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.                                1    -.




                                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 pro-
vides that judicial power shall be vested in courts desig-
nated 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 crim-
        inal 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.                                            1     -.




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              I--
other theory.   Section 46.02 of the Penal Code prohibits




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          Honorable Fred Toler - Page 5   (JM-1028)




          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
:   A..          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 magis-
                 trates 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.
    ,-




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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   ad-
dresses 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   pro-   1   -.

vides:



                              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, insorder 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 him-
        self   immediately   arrest   such    person.
        (Emphasis added.)

     Article 6.03   of the   Code of    Criminal Procedure   pro-
vides:

           Whenever, in the wresence   or within  the
        observation of a maaistrate,   an attempt  is
        made by one person to inflict an injury upon
        himself or to the person 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




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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




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