Can a Texas presiding election judge carry a handgun at the polling place on election day?

Plain-English summary

A presiding election judge runs a Texas polling place on election day and is responsible for keeping order and preventing breaches of the peace there. A state representative asked the AG whether the Penal Code provisions that make it a crime to carry a firearm at a polling place (sections 46.02 and 46.03) apply to a presiding election judge who holds a handgun license under Government Code chapter 411. The question turned on the judge's law-enforcement-like duties at the polls.

The AG concluded that section 46.03 would likely not apply to such a judge while performing election-day duties. Section 46.03 generally makes carrying a firearm at a polling place a third-degree felony, and the Legislature did not list presiding election judges among the people expressly exempted. But the Election Code gives a presiding judge "the power of a district judge to enforce order and preserve the peace" at the polls, and licensed active judicial officers, including district judges, are exempt from section 46.03. More than a century ago, in Hooks v. State (1913), a Texas court reasoned that because a presiding election judge has the same peace-keeping power as a district judge, and a district judge could carry arms to a polling place, the election judge could too. The AG concluded a court today would likely follow that reasoning. The exemption is bounded in time and place: it runs from when the judge arrives until the polls close and after, and only in the polling place and the surrounding no-electioneering area, where the judge holds the district-judge power. (Because the question was limited to license holders, the AG did not separately analyze section 46.02, which already does not apply to a person lawfully carrying under a chapter 411 license.)

The AG then explained that this exemption does not clear every polling location. Polling places sit in many kinds of buildings, government and private. On college and university campuses, Penal Code section 46.035(a-1) through (a-3) bars openly carrying a handgun anywhere on campus and bars concealed carry where the school has properly prohibited it by rule, with no exception for election judges. For other government-owned or leased polling sites, the trespass-by-license-holder provisions of sections 30.06 and 30.07 contain an exception for places where section 46.03 does not bar the license holder, so a judge exempt from 46.03 would also be outside 30.06 and 30.07 at a government-owned school or court used as a polling place. But that government-property exception does not reach privately owned polling locations. If a polling place is on private property and the owner gives proper notice, the AG concluded a presiding election judge would likely be barred from carrying there.

Currency note

This opinion was issued in 2018. 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 handgun law in particular has changed materially since 2018.

What the opinion meant for those who asked

The legislator who requested the opinion: The AG concluded that, under the law as it stood, section 46.03 would likely not apply to a chapter 411 licensed presiding election judge carrying a handgun while performing election-day duties at the polling place, bounded to those times and the polling-place area, but that campus-carry rules and private-property notice could still limit the judge.

Presiding election judges (as the opinion described their position): The opinion tied the exemption to the district-judge peace-keeping power the Election Code grants, and to the times and locations where that power exists, while flagging college campuses and noticed private property as places the exemption did not reach.

Election administrators and property owners (as described in the opinion): The opinion noted that few prerequisites govern where a polling place sits, that public buildings are preferred where practicable, and that private owners could bar carrying through proper 30.06 or 30.07 notice.

Common questions

Could a presiding election judge with a license carry a gun at the polls?
While performing election-day duties at the polling place, a court would likely find section 46.03 did not apply to a chapter 411 licensed presiding election judge, the AG concluded, based on the district-judge peace-keeping power and the 1913 Hooks decision.

Did that let the judge carry anywhere the polls happened to be?
No. The AG explained the exemption was limited to the polling-place area and the on-duty time window, and that college campuses and noticed private property remained off limits.

What about a polling place at a college or university?
Campus-carry rules in section 46.035(a-1) through (a-3) still applied, the AG concluded, barring open carry anywhere on campus and concealed carry where the school properly prohibited it, with no election-judge exception.

What about a polling place in a private building?
If the owner gave proper notice under section 30.06 or 30.07, the AG concluded a presiding election judge would likely be barred from carrying there, because the government-property exception did not reach private property.

Background and statutory framework

A presiding election judge manages the polling place and must preserve order and prevent breaches of the peace and Election Code violations (Tex. Elec. Code §§ 32.071, 32.075(a)), with "the power of a district judge to enforce order and preserve the peace" in the polling place and the surrounding no-electioneering area (§ 32.075(c)). Section 46.03 makes carrying a firearm at a polling place an offense, a third-degree felony, and does not apply to a licensed active judicial officer as defined by Government Code section 411.201, which includes a district judge (Tex. Penal Code §§ 46.03(a)(1)-(3), (g), 46.15(a)(4); Tex. Gov't Code § 411.201(a)(1)(A)). Section 46.02 does not apply to a person lawfully carrying under a chapter 411 license (Tex. Penal Code §§ 46.02(a), 46.15(b)(6)). A Texas court long ago read the predecessor peace-keeping power to allow a presiding judge to carry arms to a polling place (Hooks v. State, 158 S.W. 808, 808 (Tex. Crim. App. 1913)).

Polling places may be in varied venues, with a public building preferred where practicable (Tex. Elec. Code §§ 43.001, 43.002(a), (b), 43.031(c)). Campus-carry provisions bar open carry on any institution of higher education and concealed carry where prohibited by rule (Tex. Penal Code § 46.035(a-1), (a-2), (a-3); Tex. Gov't Code § 411.2031(d-1), (e)), while section 46.035 exempts active judicial officers only for the subsection (b) and (c) locations (§ 46.035(a)-(c), (h-1)). Sections 30.06 and 30.07 criminalize carrying after proper notice but except government-owned or leased property where section 46.03 does not bar the holder (Tex. Penal Code §§ 30.06(a)-(c), (e), 30.07(a)-(c), (e)). A governmental entity generally may not bar handguns on its property unless section 46.03 or 46.035 allows it (Tex. Gov't Code § 411.209). The Education Code separately makes exhibiting a firearm in an alarming manner on school property an offense (Tex. Educ. Code § 37.125(a)). The AG noted related questions pending in Paxton v. City of Austin, Cause No. D-1-GN-16-003340 (53rd Dist. Ct., Travis Cty.), and prior discussion of "premises" in Tex. Att'y Gen. Op. Nos. KP-0050 (2015) and KP-0047 (2015).

Citations

Statutory provisions:

• Tex. Elec. Code §§ 32.071, 32.075(a), (c), 43.001, 43.002(a), (b), 43.031(c)
• Tex. Penal Code §§ 46.02(a), 46.03(a)(1)-(3), (g), 46.035(a)-(c), (a-1), (a-2), (a-3), (h-1), 46.15(a)(4), (b)(6), 30.06(a)-(c), (e), 30.07(a)-(c), (e)
• Tex. Gov't Code §§ 411.201(a)(1)(A), 411.2031(d-1), (e), 411.209
• Tex. Educ. Code § 37.125(a)

Cases and Attorney General opinions:

• Hooks v. State, 158 S.W. 808, 808 (Tex. Crim. App. 1913)
• Paxton v. City of Austin, Cause No. D-1-GN-16-003340 (53rd Dist. Ct., Travis Cty.)
• Tex. Att'y Gen. Op. No. KP-0050 (2015)
• Tex. Att'y Gen. Op. No. KP-0047 (2015)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0212
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2018/kp0212.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

August 27, 2018

The Honorable James White Opinion No. KP-0212
Chair, Committee on Corrections
Texas House of Representatives Re: Whether sections 46.02 and 46.03 of the
Post Office Box 2910 Penal Code apply to presiding election judges
Austin, Texas 78768-2910 licensed to carry a handgun under chapter 411
of the Government Code (RQ-0214-KP)

Dear Representative White:

    You ask about the authority of certain presiding election judges to carry a handgun in a

polling place on election day. [1] The presiding election judge "is in charge of and responsible for
the management and conduct of the election at the polling place of the election precinct that the
judge serves." TEX. ELEC. CODE § 32.071. Along with other duties, the Election Code requires
presiding election judges to "preserve order and prevent breaches of the peace and violations" of
the Election Code at polling places. Id. § 32.075(a). Given their law enforcement duties, you
question whether presiding election judges licensed under chapter 411 of the Government Code
are exempt from subsection 46.03(a)(2) of the Penal Code, which prohibits carrying firearms in a
polling place. See Request Letter at 1, 3.

    Section 46.03 of the Penal Code generally prohibits the carrying of a firearm in multiple

locations, including a polling place. TEX. PENAL CODE § 46.03(a)(2). [2] "A person commits an
offense if the person intentionally, knowingly, or recklessly possesses or goes with a firearm ...
on the premises of a polling place on the day of an election or while early voting is in progress." [3]
Id. Notwithstanding that general prohibition, section 46.03 does not apply to specified individuals,
including "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." Id.
§ 46.15(a)(4). The Legislature defined "active judicial officer" to include, among others, "a person
serving as a judge or justice of ... a district court." TEX. GOV'T CODE § 411.201(a)(1)(A). Thus,
a district judge with a license to carry a handgun may carry a handgun in the locations listed in
section 46.03, including a polling place. TEX. PENAL CODE § 46.15(a)(4).

    The Legislature did not include presiding election judges among those expressly exempted

from Penal Code sections 46.02 and 46.03. See id. § 46.15. Yet in performing their duties at the
polling place, the Election Code gives presiding judges "the power of a district judge to enforce
order and preserve the peace." TEX. ELEC. CODE § 32.075(c). More than 100 years ago, a Texas
court addressed whether that statutory authority in a predecessor statute allowed presiding judges
to carry arms to a polling location. See Hooks v. State, 158 S.W. 808, 808 (Tex. Crim. App. 1913).
That court concluded that because a presiding election judge had the same power as a district judge
to enforce order and keep the peace, and because a district judge could carry arms to a polling
location, the presiding election judge likewise had authority to do so. Id. A court today would
likely follow the analysis in Hooks when construing the statutes in their current form and conclude
that section 46.03 of the Penal Code does not apply to presiding election judges licensed under
chapter 411 of the Government Code when performing their duties under section 32.075(a) of the
Election Code.

    The presiding election judge's duties extend "from the time the judge arrives at the polling

place on election day until the judge leaves the polling place after the polls close." TEX. ELEC.
CODE § 32.075(a). Regarding location, the presiding election judge's law enforcement authority
exists "in the polling place and in the area within which electioneering and loitering are
prohibited." Id. Only during that time and those locations does the presiding election judge
possess the power of a district judge to enforce order and preserve the peace. Id. § 32.075(c).
Thus, the presiding election judge's exemption from section 46.03 is limited to those times and
locations.

    Recognizing that polling locations are located in a variety of venues, you also seek general

guidance on a presiding election judge's authority to carry firearms in "polling places that are
either government or non-government buildings." Request Letter at 3. Governmental entities use
a wide variety of buildings as polling locations, including courthouses, libraries, schools, and other
government buildings. They also often use nongovernment buildings, such as grocery stores,
churches, and privately owned activity centers. Although presiding election judges licensed under
chapter 411 are generally exempt from prosecution under subsection 46.03(a)(2) while performing
their duties at a polling place, your question acknowledges that other provisions of the Penal Code
may limit their ability to carry firearms in certain polling locations. [4]

    Section 46.035 of the Penal Code prohibits a license holder from carrying handguns in

certain buildings, while the Election Code allows a governmental entity to consider using those
same buildings as polling locations. Compare TEX. PENAL CODE § 46.035(a)-(c), with TEX. ELEC.
CODE § 43.031. [5] Penal Code subsection 46.035(a-1) prohibits a license holder from openly
carrying a handgun on the premises of both public and private institutions of higher education.
TEX. PENAL CODE § 46.035(a-1). Subsections (a-2) and (a-3) prohibit a license holder from
carrying a concealed handgun in the locations on a campus of an institution of higher education,
public or private, where the institution has by rule prohibited handguns and provided proper notice
under section 30.06 of the Penal Code. Id. § 46.035(a-1), (a-2); see also TEX. GOV'T CODE
§ 411.2031(d-1) (requiring an institution of higher education to establish reasonable rules
regarding the carrying of concealed handguns on campus), (e) (authorizing a private or
independent institution of higher education to establish rules prohibiting license holders from
carrying handguns on campus). Because no exception applies to presiding election judges in these
locations, subsections 46.035(a-1), (a-2), and (a-3) prohibit a presiding election judge from openly
carrying a handgun on any institution of higher education campus and from carrying a concealed
handgun in a location on campus where the institution prohibits carrying a handgun by rule.

    Sections 30.06 and 30.07 of the Penal Code make it a criminal offense for a license holder

to carry a concealed handgun and to openly carry a handgun, respectively, on property of another
without consent when the license holder received notice forbidding carrying a handgun on the
property. TEX. PENAL CODE §§ 30.06(a), .07(a). Those sections also establish methods for
providing notice to prohibit a license holder from carrying a handgun onto the property. [6] In limited
circumstances, governmental entities may post notice under sections 30.06 and 30.07, thereby
making it an offense to carry handguns into the buildings for which they provide notice. [7]

   A state agency or political subdivision may not prohibit the carrying of handguns on

property it owns or leases unless Penal Code section 46.03 or 46.035 expressly allows the
prohibition. TEX. GOV'T CODE § 411.209 ("Wrongful Exclusion of a Handgun License Holder").
Relevant to potential polling locations, section 46.03 prohibits carrying weapons "on the physical
premises of a school or educational institution" and "on the premises of any government court or
offices utilized by a court," among other locations, unless exceptions apply. [8] TEX. PENAL CODE
§ 46.03(a)(1), (3). If a governmental entity posts notice under 30.06 and 30.07 in those locations,
a license holder who carries a firearm could be in violation of those provisions and prosecuted for
trespass by a license holder. Id. §§ 30.06(a), .07(a). Yet sections 30.06 and 30.07 except from the
application of those provisions the carrying of a handgun on property owned or leased by a
governmental entity that "is not a premises or other place on which the license holder is prohibited
from carrying the handgun under Section 46.03 .... " Id. §§ 30.06(e), .07(e). As discussed above,
section 46.03 would not apply to a presiding election judge licensed under chapter 411 carrying a
firearm while performing presiding election judge duties. Id. § 46.15(a)(4); TEX. ELEC. CODE
§ 32.075(c). Thus, sections 30.06 and 30.07 would not apply to a presiding election judge licensed
under chapter 411 who serves at a polling location on property where section 46.03 otherwise
prohibits carrying a handgun if the property is owned or leased by a governmental entity. So those
sections would not prohibit a presiding election judge licensed under chapter 411, while
performing election judge duties, from carrying a handgun at a polling place located in a school or
on the premises of a government court or offices utilized by the court. [9] Cf. TEX. PENAL CODE
§ 46.035(a-1), (a-2), (a-3) (making it an offense to carry handguns on institutions of higher
education when prohibited by rules of the institution, notwithstanding exemptions created in other
sections).

   The exceptions to 30.06 and 30.07 apply only to carrying a handgun on "property

owned or leased by a governmental entity" and do not extend to privately owned property. Id.
§§ 30.06(e), .07(e). We find no law that exempts presiding election judges from those provisions
when on private property. Thus, if a polling place is on private property and the owner or someone
with apparent authority to act for the owner provides notice, a presiding election judge would likely
be prohibited from carrying a firearm to that location. [10]

                                  SUMMARY

                  Section 46.03 of the Penal Code, which creates an offense
          for carrying firearms at multiple locations including a polling place,
          does not apply to presiding election judges licensed under chapter
          411 of the Government Code when performing their duties under
          section 32.075(a) of the Election Code.

                  Subsections 46.035(a-1), (a-2), and (a-3) of the Penal Code
          prohibit a presiding election judge from openly carrying a handgun
          on any institution of higher education campus and from carrying a
          concealed handgun in a location on campus where the institution
          prohibits carrying a handgun by rule.

                  Sections 30.06 and 30.07 of the Penal Code could prohibit a
          presiding election judge from carrying a handgun to a polling
          location on private property if proper notice was given under those
          sections.

                                         Very truly yours,

                                         KEN PAXTON
                                         Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

[1] See Letter from Honorable James White, Chair, House Comm. on Corrs., to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Mar. 1, 2018), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] You also question whether the presiding election judges would be exempt from section 46.02 of the Penal Code. Request Letter at 3. Section 46.02 makes it an offense for a person to carry a handgun anywhere not "on the person's own premises or premises under the person's control" or en route to the person's motor vehicle or watercraft. TEX. PENAL CODE § 46.02(a). But section 46.02 does not apply to a person lawfully carrying a handgun with a license under chapter 411 of the Government Code. Id. § 46.15(b)(6). Because you ask about only those presiding election judges licensed under chapter 411, we need not address section 46.02 further.

[3] Carrying a firearm in violation of subsection 46.03(a) is a third-degree felony. See id. § 46.03(g).

[4] The Election Code requires a polling place in each precinct, and it establishes which officials designate the polling places in specific elections. See TEX. ELEC. CODE §§ 43.001 (requiring one polling place in each precinct), 43.002(a), (b) (requiring a county clerk to recommend a location for general elections and the commissioners court to designate the location). But it places few prerequisites on the location of a polling place. See id. § 43.031(c) (requiring a polling place to be in a public building "if practicable").

[5] For some of the buildings and premises listed in Penal Code section 46.035, the Legislature established an exemption for "active judicial officers," as it did for section 46.03: "It is a defense to prosecution under Subsections (b) and (c) that the actor, at the time of the commission of the offense, was ... an active judicial officer .... " TEX. PENAL CODE § 46.035(h-1). Thus, section 46.035 would not prohibit a presiding election judge licensed under chapter 411 of the Government Code from carrying a handgun while performing the duties of an election judge at the locations listed in subsections 46.035(b) and (c). That exemption, however, does not apply to the buildings and premises listed in subsections (a-1) and (a-2).

[6] A "person receives notice if the owner of the property or someone with apparent authority to act for the owner provides notice to the person by oral or written communication." Id. §§ 30.06(b), .07(b). Section 30.06 describes how to provide notice by written communication to forbid a license holder with a concealed handgun. Id. § 30.06(c)(3). Section 30.07 similarly establishes how to provide a notice by "written communication" for purposes of prohibiting a license holder with an openly carried handgun. Id. § 30.07(c)(3).

[7] Sections 30.06 and 30.07 establish specific language to use on a sign to prohibit carrying a handgun onto the property. Id. §§ 30.06(c)(3)(A), .07(c)(3)(A). Whether it is acceptable to use other language or methods to post notice prohibiting the carrying of handguns is a question currently at issue in Paxton v. City of Austin, Cause No. D-1-GN-16-003340, in the 53rd District Court of Travis County, Texas.

[8] Prior opinions of this office discuss the meaning of premises in the context of section 46.03. See Tex. Att'y Gen. Op. Nos. KP-0050 (2015) at 1-2; KP-0047 (2015) at 3. The scope of the terms "premises" and "building or portion of a building" is also an issue raised in Paxton v. City of Austin, Cause No. D-1-GN-16-003340, in the 53rd District Court of Travis County, Texas.

[9] Section 37.125 of the Education Code makes it an offense to intentionally exhibit a firearm "in a manner intended to cause alarm or personal injury" on school property. TEX. EDUC. CODE § 37.125(a). Election judges carrying a handgun to a polling location at a school should consider this provision when deciding how they will carry.

[10] To the extent that the political subdivision holding the election has a contract or arrangement with the private property owner about the polling location, the ability to carry a firearm on the property during the election may depend on the specific terms of that agreement and should be evaluated on a case-by-case basis.