Is a Texas judge a 'peace officer' who can carry a handgun under the peace-officer exemption?

Texas AG Opinion JM-1050: Is a Judge a "Peace Officer" Who Can Carry a Handgun?

Plain-English summary

Texas law bans carrying a handgun but exempts "peace officers." The Attorney General had said in an earlier 1989 opinion (JM-1028) that a judge or magistrate is not a peace officer for that purpose. That drew pushback: the Texas Constitution calls judges "conservators of the peace," and a line of old Court of Criminal Appeals cases had read "conservator of the peace" to mean "peace officer" for the carrying-arms exemption. The state's law enforcement training commission asked the AG to take another look. This opinion is the AG's answer, and it holds the line: a judge or magistrate still is not a peace officer under Penal Code section 46.03.

The reason comes down to a change in the statute over time. The old cases (Jones, Hooks, Tippett, Patton) were decided under versions of the penal law that exempted "peace officers" without ever defining the term. Faced with an undefined phrase, those courts reasoned that because a judge is a conservator of the peace under the constitution, a judge must be a peace officer, though several of the judges writing those opinions said plainly they thought the Legislature had meant only the officers it had listed as peace officers, and that they felt bound to rule otherwise only because of the earlier Jones decision. So the older result rested on the absence of a statutory definition, not on any deep conviction that judges belong in the peace-officer category.

That gap closed in 1973. The revised Penal Code added a definition: "peace officer" means a person so designated by the Code of Criminal Procedure. Article 2.12 of that code lists who counts as a peace officer, and judges and magistrates are not on the list. Because section 46.03 is subject to that statutory definition, the AG concluded the right question now is what the statute says, not what pre-1973 courts said about an undefined term. Under the current definition, a judge or magistrate is not a peace officer, and the handgun-carry exemption for peace officers does not reach them.

The opinion added two supporting points. First, being a conservator of the peace has never carried the full authority of a peace officer; the AG cited a 1929 decision holding that a justice of the peace, though a magistrate, is not classified as a peace officer under the statutes defining peace officers' duties. Second, there is a constitutional reason not to fold judges into the peace-officer role: if a judge held all the powers of a peace officer, a Texas judge might no longer be the "neutral and detached magistrate" the Fourth Amendment requires, and the warrants the judge issued could be invalid. The AG reaffirmed JM-1028.

Currency note

This opinion was issued in 1989. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Texas has substantially rewritten its handgun-carry laws since 1989, including the Penal Code section 46 provisions discussed here and the later addition of license-to-carry and permitless-carry regimes. The list of peace officers in Code of Criminal Procedure article 2.12 has also been amended repeatedly. Anyone with a present-day question about who may carry a handgun, or whether a judge may, should consult current statutes rather than rely on this 1989 analysis.

Who this opinion affected (as of 1989)

Judges and magistrates: The opinion confirmed that, as of 1989, they were not "peace officers" under Penal Code section 46.03 and could not rely on the peace-officer exemption to the handgun-carry ban.

Law enforcement and the training commission: The opinion settled a recurring question the commission had raised by reaffirming JM-1028 and explaining why the pre-1973 cases no longer controlled.

Lawyers and courts: The opinion is a clean illustration of how a later statutory definition displaces older case law that construed an undefined term.

Common questions

Was a Texas judge a "peace officer" who could carry a handgun in 1989?
No. The AG reaffirmed that a judge or magistrate is not a peace officer for purposes of Penal Code section 46.03, so the peace-officer exemption to the handgun-carry ban did not apply to them.

Didn't old cases say judges were peace officers?
Yes, but those cases (Jones, Hooks, Tippett, Patton) construed an exemption that had no statutory definition of "peace officer." The AG explained that the 1973 Penal Code added a definition, so those pre-1973 cases no longer controlled.

Where does the current definition of "peace officer" come from?
Penal Code section 1.07(a)(25) defines "peace officer" as a person designated by the Code of Criminal Procedure, and article 2.12 of that code lists those persons. Judges and magistrates are not on the list.

Does being a "conservator of the peace" make a judge a peace officer?
Not by itself. The AG explained that a conservator of the peace does not have the full statutory authority of a peace officer, and that it is the Legislature's prerogative to decide which peace-officer powers to grant conservators of the peace.

Background and statutory framework

On March 17, 1989, the office issued Attorney General Opinion JM-1028, which concluded that a judge or magistrate is not a peace officer for purposes of section 46.03 of the Penal Code, the provision excepting peace officers from the prohibition against carrying handguns in section 46.02. The office received letters questioning that conclusion, arguing that article V, section 12 of the Texas Constitution makes judges conservators of the peace and that the Court of Criminal Appeals had held conservators of the peace to be peace officers within the carrying-arms exemption. The AG cited the line of cases making that point: Patton v. State, 86 S.W.2d 774 (Tex. Crim. App. 1935) (justice of the peace); Tippett v. State, 189 S.W. 485 (Tex. Crim. App. 1916) (judge of 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); and Jones v. State, 65 S.W. 92 (Tex. Crim. App. 1901) (county judge).

Jones was the earliest case. It construed an exemption providing that "The preceding article shall not apply to . . . a peace officer. . . ." Penal Code art. 339 (1895), and found no indication the Legislature intended to limit the exemption to the peace officers listed in the predecessor of article 2.12. The Jones court cited article V, section 15 of the Texas Constitution, designating a county judge a conservator of the peace, quoted a dictionary definition of conservator of the peace, and concluded it "would therefore seem to follow" that a conservator of the peace is a peace officer. The court made clear that the judge's authority to carry a gun came not from the constitution but from the Legislature's use of the general term "peace officers," which applied to those made peace officers by the constitution as well as by statute. The courts in Hooks, Tippett, and Patton felt bound to apply Jones to judicial officers designated conservators of the peace by article V, section 12, but did not necessarily find it persuasive; the Tippett opinion said that were it an original proposition, the writer would hold the Legislature exempted only the officers it had defined as peace officers in the predecessor of article 2.12, and the Patton court said it was "constrained to hold" in keeping with Jones and Tippett.

The AG then explained that a conservator of the peace does not have the full statutory authority of a peace officer. In Satterwhite v. State, 17 S.W.2d 823 (Tex. Crim. App. 1929), which considered a justice of the peace's authority to arrest without a warrant, the court stated that although a magistrate is a peace officer within the article defining unlawfully carrying arms, the duties of peace officers as defined by statute are broader than those of a justice of the peace, and under the statute relating to peace officers' duties a justice of the peace is not classified as a peace officer. See also Davis v. State, 275 S.W. 1060 (Tex. Crim. App. 1925); Morawietz v. State, 80 S.W. 997 (Tex. Crim. App. 1904). Thus it is the Legislature's prerogative to decide which peace-officer powers to grant conservators of the peace; the constitution does not vest conservators of the peace with all powers of peace officers. If it did, the AG noted, a Texas judge probably would not be a "neutral and detached magistrate" under the Fourth Amendment, and the warrants the judge issued would be invalid. See, e.g., Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979); Shadwick v. City of Tampa, 407 U.S. 345 (1972); Annot., 32 L.Ed.2d 970 (1973). The narrow powers accompanying the title "conservator of the peace" are described in JM-1028 and in a Code of Criminal Procedure provision first enacted in 1846, under which each sheriff is a conservator of the peace in his county and shall arrest offenders against the laws of the State in his view or hearing. Code Crim. Proc. art. 2.17; Acts 1846, 1st Leg., § 7, at 265.

The decisive change was the 1973 revision of the Penal Code, which, unlike prior versions, included a definition of "peace officer": section 1.07(a)(25) provides that "peace officer" means a person so designated by the Code of Criminal Procedure, and article 2.12 of that code, designating various persons as peace officers, does not include judges or magistrates. The Penal Code provision construed in Jones, Hooks, Tippett, and Patton was not limited by any legislative definition of "peace officer," but section 46.03 is subject to the section 1.07(a)(25) definition. The AG therefore looked to the statutory definition, not pre-1973 case law, to answer the last question in JM-1028, and reaffirmed that answer: a judge or magistrate is not a peace officer under section 46.03.

Citations

Statutory and constitutional authority:

• Penal Code § 1.07(a)(25) (definition of "peace officer"); § 46.02 (unlawful carrying of handguns); § 46.03 (peace-officer and other exceptions)
• Penal Code art. 339 (1895) (predecessor carrying-arms exemption)
• Code Crim. Proc. art. 2.12 (persons who are peace officers); art. 2.17 (sheriff as conservator of the peace)
• Acts 1846, 1st Leg., § 7, at 265
• Tex. Const. art. V, § 12 (judges as conservators of the peace); § 15 (county judge as conservator of the peace)
• U.S. Const. amend. IV

Cases cited:

• Jones v. State, 65 S.W. 92 (Tex. Crim. App. 1901)
• Hooks v. State, 158 S.W. 808 (Tex. Crim. App. 1913)
• Tippett v. State, 189 S.W. 485 (Tex. Crim. App. 1916)
• Patton v. State, 86 S.W.2d 774 (Tex. Crim. App. 1935)
• Satterwhite v. State, 17 S.W.2d 823 (Tex. Crim. App. 1929)
• Davis v. State, 275 S.W. 1060 (Tex. Crim. App. 1925)
• Morawietz v. State, 80 S.W. 997 (Tex. Crim. App. 1904)
• Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979)
• Shadwick v. City of Tampa, 407 U.S. 345 (1972)

Attorney General materials referenced:

• JM-1028 (1989)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1050
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1050.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative.

May 30, 1989

Honorable Fred Toler
Executive Director
Texas Commission on Law Enforcement Officer Standards and Education
1606 Headway Circle, #100
Austin, Texas 78754

Opinion No. JM-1050

Re: Clarification of Attorney General Opinion JM-1028 (1989) (RQ-1715)

Dear Mr. Toler:

On March 17, 1989, we issued Attorney General Opinion JM-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. See Patton v. State, 86 S.W.2d 774 (Tex. Crim. App. 1935) (justice of the peace); Tippett v. State, 189 S.W. 485 (Tex. Crim. App. 1916) (judge of 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 part: "The preceding article shall not apply to . . . a peace officer. . . ." Penal Code art. 339 (1895). The court found no indication that the legislature intended to limit the exemption to the peace officers listed in the predecessor 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 the public peace." Jones v. State, supra, at 92. It concluded that it "would therefore seem to follow" that a conservator of the peace is a peace officer. Id.

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.

Id.

The courts in Hooks, Tippett, 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 Tippett 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 predecessor of article 2.12] of the Code of Criminal Procedure.

Tippett v. State, supra, at 486.

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

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, 17 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 "solely with appellant's right as a private person to arrest without warrant." Id. 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.)

Id.; see Davis v. State, 275 S.W. 1060 (Tex. Crim. App. 1925); Morawietz v. State, 80 S.W. 997 (Tex. Crim. App. 1904).

Thus, it is the legislature's prerogative to decide which powers of peace officers should be granted to conservators 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.g., Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979); Shadwick v. City of Tampa, 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 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 § 1.07(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, Tippett, and Patton 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" 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 v. 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 1.07(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 JM-1028 is affirmed.

Very truly yours,

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 Susan L. Garrison
Assistant Attorney General