RECEIVED
MAR 01 2018

OPINION COMMITTEE
STATE REPRESENTATIVE

JAMES WHITE

CORRECTIONS - CHAIR

0TSTRICT 19

INTERNATIONAL TRADE &

HARDIN, JASPRR

fN'l'ERGOVERNMENTAL AFFAIRS

NEWTON, POLK, TYLER

RQ- O~IL/-l<P

The Honorable Ken Paxton
Office of the Attorney General
Attention Opinion Committee
PO Box 12548
Austin, Texas 78711-2548
RE:

Request for Opinion on Texas Election Judges Exercising their Discretion as LTC
holders in a Polling Place on Election Days

Via email to opinion.committee@oag.texas.gov
Dear Attorney General Paxton:
Over the last several years, election judges have inquired about their discretion to exercise their
right to carry a firearm in a concealed manner if they are an authorized Texas license to carry
(LTC) holder. Due to the latest events, the public has a heightened awareness of the security
posture in public spaces. Especially among election judges, who serve in rural areas in which
local law enforcement must provide public safety with limited manpower over vast areas, these
inquires are resurfacing. These election judges a:re evaluating the security posture and they are
discovering that their pollingplaces are in-remote locations.,ffheir duties require them to arrive at
the polling place early in the morning, sometimes before daylight begins, and then requires them
to close their polling placeinthe evening.
·
In Section 46.03 (a)(2), th~:r~ is a prohibition on entering "a phlling place on the day of an
election or while early voting is in progress".
Sec. 46.03. PLACES WEAPONS PROHIBITED. (a) A person commits an offense if the
person intentionally, knowingly, or recklessly possesses or goes with a firearm, locationrestricted knife, club, or prohibited weapon listed in Section 46.05(a):
(2) on the premises of a polling place on the day of an election or while early voting is in
progress.

Specifically, th.~ qµes,tiQn arises iu the actualelection code where it says that election judges
have the same'p6Wef ara district Judge. Secti6n 32.075 prffvides electfonjudges, with law
enforcement dt1.ties a.~d po:vvers~

-------------------- ---P.O. Box. 2910 ·Ausrrn, TEXAS 78768-29to • (512) 463-0490 • FAx (512) 463-9059
D1sTRICT: P.O. Box 395 • WooovILLE, TEXAS 75979 • (409) 283-3700 • FAx (409) 283-3702

CAPITOL:

JAMES.WHITE@HOUSE.TEXAS.GOV

··--·--·-··--·-··--···-····--

 STATE REPRESENTATIVE

JAMES WHITE

CORRECTIONS - CHAIR

DrsTRICT

INTERNATIONAL TRADE &

19

HARDlN, }ASPER

fNT.l!RGOVERNMENTAL AFFAIRS

NEWTON, POLK, TYLER

Sec. 32.075. LAW ENFORCEMENT DUTIES AND POWERS. (a) The presiding judge
shall preserve order and prevent breaches of the peace and violations of this code in the
polling place and in the area within which electioneering and loitering are prohibited
from the time the judge arrives at the polling place on election day until the judge leaves
the polling place after the polls close.
In this role, Section 32.075 provides electionjudges the discretion to appoint special peace
officers for the polling place.
· ·
(b) In performing duties under Subsection (a), the presiding judge may appoint one or
more persons to act as special peace officers for the polling place. A special peace officer
may not enforce the prohibition against electioneering or loitering near the polling place
unless the officer's appointment is approved by the presiding officer of the local
canvassing authority.
Section 32.075 continues by providing election judges powers congruent with a state district
judge at a polling place during an election.
(c) In performing duties under Subsection (a), a presiding judge has the power of a
district judge to enforce order and preserve the peace, including the power to issue an
arrest warrant. An appeal of an order or other action of the presiding judge under this
section is made in the same manner as the appeal of an order or other action of a district
court in the county in which the polling place is located.
Nevertheless, Section 32;075, in the performance of their law enforcem~nt duties and powers,
does not give election judges the power to deny voting rights to eligible voters, prohibit statutory
electioneering, or appoint unlicensed peace officers.
(d) A person who is arrested at a polling place while voting or waiting to vote
shall be permitted to vote, if entitled to do so, before being removed from the polling
place.
(e) The presiding judge or a special peace officer appointed under this section
may not enforce the prohibition against electioneering or loitering outside of the area
within which electioneering and loitering are prohibited under Section 61.003 or 85.036.

··----·· ····-··- ·······- ···--··-··-··--····-·····--··-·•-·-·•·-··--------CAJ'ITOL: P.O. Box 2910 • AusTIN, TEXAs 78768-2910·(512) 463-0490 • FAx (512) 463-9059
DISTRICT:

P.O. Box 395 • Wooov1LLE, TEXAS 75979 • (409) 283-3700 • FAx (409) 283-3702
JAMES.WHITE@HOUSE.TEXAS.GOV

 STATE REPRESENTATIVE

JAMES WHITE

CORRECTIONS - CHAIR
lNTERNATiONAL TRADE &

DrsTRICT 19
HARDIN, JASPER

INTERGOVERNMENTAL AFFAIRS

NEWTON, POLK, TYLER

(f) A person is eligible for appointment as a special peace officer under
Subsection (b) only if the person is licensed as a peace officer by the Texas Commission
on Law Enforcement.
Establishing the powers of an election judge, this brings us back to the congruent nature of those
powers with a state district judge. Texas Penal Code Section 46.15 (a)(4) exempts judges from
Texas Penal Code Sections 46.02 and 46.03.
(a)

Sections 46.02 and 46.03 do not apply to:
(4) an active judicial officer as defined by Section 411.201, Government Code, who
is licensed to carry a handgun under Subchapter H, Chapter 411, Government
Code;
·

Therefore, the question arises as to whether or not an election judge who has an L TC is
exempt from 46.02 and 46.03 while serving only in that capacity on the days of elections to
carry in a polling place? Realizing that election polling places are situated in various
venues, this request for an opinion should include guidance on the porting of firearms by
election judges with an L TC in polling places that are either government or nongovernment buildings.
·

For God and Texas,

James White
State Representative
House District 19

...--····-----·-···---.•- -------·-···-· ------···-------- ----------------·-···--------···-----·-···-----·--·-··-·-·--· --·-------·-·P.O. Box 2,910 •AUSTIN, TEXAS 78768-2910. (5n) 463-0490. FAx (512) 463-9059
D1s'!'RICT: P.O. Box 395 • WooovILLE, TEXAS 75979 • (409) 2.83-3700 • FAx (409) 283-3702

CAJ•ITOL:

JAMES.WHITE@HOUSE.TEXAS.GOV