Could a Texas sheriff bar peace officers from carrying guns while off duty as patrons in bars or nightclubs?

Texas AG Opinion JM-765: Off-Duty Weapons Rules for Deputies

Plain-English summary

The Maverick County Attorney reported complaints that armed peace officers were visiting bars and nightclubs as ordinary patrons, drinking and socializing rather than working security or investigating crimes. Texas Penal Code provisions exempted peace officers from the general unlawful-carrying prohibition.

The Attorney General concluded that a county sheriff could not issue a binding directive to peace officers employed by cities or other political subdivisions. The sheriff had no supervisory control over those officers, whether they were on duty or off duty.

The sheriff did have supervisory authority over deputies employed by the sheriff's office. That included power to direct their on-duty work and to impose reasonable limits on off-duty behavior when the limits were related to proper law-enforcement responsibilities.

JM-765 did not decide whether a particular bar-and-firearm policy would be reasonable. The opinion said that question depended on facts outside the Attorney General opinion process.

Currency note

This opinion was issued in 1987. 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.

Common questions

Could the sheriff regulate officers employed by a city or another local government?

No. The opinion said the sheriff lacked supervisory control over peace officers employed by other political subdivisions in the county.

Could the sheriff regulate the sheriff's own deputies while they were on duty?

Yes. JM-765 treated the sheriff's authority to direct on-duty activities of sheriff's-office personnel as clear.

Could the sheriff impose an off-duty weapons rule on county deputies?

Potentially. The sheriff could impose reasonable off-duty restrictions that were connected to proper on-duty law-enforcement requirements.

Did the opinion approve a specific ban on carrying guns in bars?

No. It expressly declined to decide whether any particular policy was reasonable because that required factual findings.

Why could off-duty conduct still relate to a deputy's job?

The opinion explained that peace officers had continuing duties to preserve the peace and could retain peace-officer status outside their assigned shifts, although their authority could vary outside their normal jurisdiction.

Background and statutory framework

Section 46.02 of the Penal Code generally prohibited carrying weapons and imposed a higher offense level on premises licensed to sell or serve alcoholic beverages. Section 46.03(a)(6), as discussed in the opinion, made section 46.02 inapplicable to peace officers.

The sheriff's personnel authority came from statutes governing appointment and supervision of deputies. The opinion also relied on cases addressing deployment of sheriff's personnel and responsibility for deputies' official acts.

For off-duty conduct, JM-765 tied the permissible scope of supervision to the employment relationship. A restriction had to be reasonably connected to proper law-enforcement duties, and the opinion left the reasonableness of a concrete policy unresolved.

Citations and references

Statutes:

• Texas Penal Code sections 46.02 and 46.03(a)(6), weapons provisions discussed in the opinion
• Texas Code of Criminal Procedure article 2.13, duty to preserve the peace
• Former V.T.C.S. articles 6869 and 6870, deputy appointment and sheriff responsibility

Cases:

• Weber v. City of Sachse, 591 S.W.2d 563 (Tex. Civ. App. - Dallas 1979, writ dism'd)
• Workman v. Freeman, 279 S.W.2d 486 (Tex. Civ. App. - Amarillo 1955), aff'd, 289 S.W.2d 910 (Tex. 1956)
• Wood v. State, 486 S.W.2d 771 (Tex. Crim. App. 1972)
• Simms v. State, 319 S.W.2d 717 (Tex. Crim. App. 1958)
• Preston v. State, 700 S.W.2d 227 (Tex. Crim. App. 1985)
• Christopher v. State, 639 S.W.2d 932 (Tex. Crim. App. 1982)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0765
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0765.pdf

Original opinion text

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

THE ATTORNEY GENERAL
OF TEXAS

August 10, 1987

Honorable Rolando J. Menchaca
Maverick County Attorney
P. O. Box 3041
Eagle Pass, Texas 78853

Opinion No. JM-765

Re: Whether a sheriff may prohibit county peace officers from carrying weapons into commercial establishments that serve alcoholic beverages

Dear Mr. Menchaca:

You inform us that the county sheriff has received complaints that armed law enforcement officers from various political subdivisions in the county have been observed patronizing bars or night clubs, drinking alcoholic beverages, and socializing. After an investigation, it was determined that, on several occasions, the peace officers were not acting as security guards or investigating criminal offenses; they were present only as patrons. Section 46.02 of the Penal Code, which makes unlawful the carrying of weapons, specifically provides in subsection (c): "An offense under this section is a felony of the third degree if it occurs on any premises licensed or issued a permit by the state for the sale or service of alcoholic beverages." You correctly point out that section 46.03(a)(6) of the Penal Code specifically provides that section 46.02 of the Penal Code is inapplicable to peace officers. See Attorney General Opinion JM-613 (1986). Accordingly, you ask:

Can our local sheriff issue a directive to any and all peace officers in our county to the effect that, while acting as patrons at a drinking establishment, etc., peace officers should leave their weapons elsewhere? If this cannot be done, is there anything that our sheriff can do to address this particular problem?

We understand you to ask whether the county sheriff has the authority to direct the activities of non-county peace officers, as well as county peace officers. Logically, your question could arise in connection both with regard to "on-duty" conduct or activities, as well as "off-duty" conduct. We will address each situation.

Of course, a county sheriff may direct the activities of peace officers in his employ during their "on-duty" time of employment. See Weber v. City of Sachse, 591 S.W.2d 563 (Tex. Civ. App. - Dallas 1979, writ dism'd). We conclude, however, that the county sheriff is without authority to make such a policy applicable to peace officers who are employees of other political subdivisions in the county. The authority of a county sheriff to direct the "off-duty" activities of peace officers in his employ is more limited, however, to restrictions that are reasonably connected to the proper execution of his law enforcement responsibilities. You do not ask about the reasonableness of any specific policy. Whether any specific policy is reasonable is a question of fact that we cannot resolve in the opinion process. We cannot determine the reasonableness of any specific policy that prohibits county peace officers, while armed, from frequenting during their "off-duty" hours establishments licensed to sell or serve alcoholic beverages.

County sheriffs generally exercise supervisory control over employees in the county sheriff's office. See, e.g., Attorney General Opinion H-1190 (1978). County sheriffs are authorized by article 6869, V.T.C.S.,¹ to appoint deputies "to continue in office during the pleasure of the sheriff, who shall have power and authority to perform all the acts and duties of their principals." See generally Heye v. Moody, 4 S.W. 242 (Tex. 1887); Murray v. Harris, 112 S.W.2d 1091 (Tex. Civ. App. - Amarillo 1938, writ dism'd). Article 6870, V.T.C.S., provides that sheriffs shall be responsible for the official acts of their deputies; they are not responsible for unofficial and unauthorized acts of deputies. Workman v. Freeman, 279 S.W.2d 486 (Tex. Civ. App. - Amarillo 1955), aff'd, 289 S.W.2d 910 (Tex. 1956); Taylor v. Stanford, 229 S.W.2d 427 (Tex. Civ. App. - Galveston 1950, no writ). A county sheriff has the authority to deploy his personnel in any manner that he deems appropriate. Weber v. City of Sachse, 591 S.W.2d 563 (Tex. Civ. App. - Dallas 1979, writ dism'd). While the county sheriff may exercise supervisory control over employees of his office, he exercises no supervisory control over peace officers employed by other political subdivisions in the county.

While the county sheriff may not exercise supervisory control over peace officers employed by other political subdivisions, regardless of whether control is sought to be exercised over "on-duty" time or "off-duty" time, we conclude that he may impose reasonable limitations on the "off-duty" behavior of his own deputies. Generally, a public employer may not discharge a public employee at-will unless the cause for the discharge is reasonably related to employment. See, e.g., Annots., 35 A.L.R. 4th 691 (1985); 33 A.L.R. 4th 120 (1985). Given the fact that law enforcement officers can be thought to be "on-duty" at all times insofar as a peace officer is required to respond to any breach of the peace that occurs within his view even if he is no longer working his assigned "shift," we conclude that a county sheriff may exercise reasonable "off-duty" control of his deputies.

In Attorney General Opinion JM-613 (1986), we were asked whether a Texas peace officer commits a crime and is subject to prosecution for a misdemeanor or felony if he carries a handgun either (1) while he is "off-duty" (i.e., not then actually carrying out duties assigned to him by his department), or (2) while he is outside the limits of the territory over which his department has law enforcement jurisdiction. We concluded that a peace officer in Texas, wherever in the state he might be and whether engaged in the actual discharge of his duties, is immune from prosecution under section 46.02 of the Penal Code for unlawfully carrying a handgun. One of the primary reasons that the opinion so held is that Texas courts have consistently concluded that a peace officer, at least when he is within his normal jurisdiction, remains a peace officer twenty-four hours a day and possesses the full powers of a peace officer in the presence of criminal activity. See Wood v. State, 486 S.W.2d 771 (Tex. Crim. App. 1972); Simms v. State, 319 S.W.2d 717 (Tex. Crim. App. 1958). The Code of Criminal Procedure, article 2.13, makes it the duty of every peace officer to preserve the peace within his jurisdiction at all times and not merely during his "on-duty" hours or "shift." See Attorney General Opinion JM-140 (1984). Similarly, the cases of Preston v. State, 700 S.W.2d 227 (Tex. Crim. App. 1985) and Christopher v. State, 639 S.W.2d 932 (Tex. Crim. App. 1982), leave no doubt that every Texas peace officer remains a peace officer even while outside the territorial limits of his normal jurisdiction, although his power to act may be more limited outside these boundaries than within them.

Because a peace officer employed by the county may be called upon to exercise his duty as a peace officer even when he is not working his regular shift, we conclude that a county sheriff may exercise reasonable control over the "off-duty" conduct or behavior of his law enforcement employees, so long as such direction or control is reasonably related to the proper requirements of "on-duty" conduct. You do not ask about the reasonableness of any specific policy. Such a determination would require a finding of fact, which we decline to make in the opinion process.

SUMMARY

A sheriff is ordinarily without authority to direct the activities, whether "on-duty" or "off-duty," of peace officers who are employees of other political subdivisions in the county. The authority of a sheriff to direct the "off-duty" activities of peace officers in his employ is limited to restrictions that are reasonably related to proper "on-duty" employment.

JIM MATTOX
Attorney General of Texas

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jim Moellinger
Assistant Attorney General

¹ Article 6869, V.T.C.S., was repealed and replaced effective September 1, 1987. See now chapter 86 of the Government Code. See Acts 1987, 70th Leg., ch. 149, §§1, 49.