Untitled Texas Attorney General Opinion ( 2002 )

OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS
JOHN CORNYN
July 9,2002
The Honorable Michael A. McDougal Opinion No. JC-0530
District Attorney
Ninth Judicial District Re: Whether city police officers acting as
301 North Thompson, Suite 106 drainage-district peace officers under section
Conroe, Texas 77301-2824 49.216 of the Water Code may issue traffic
citations for traffic violations committed within
the drainage district (RQ-05 10-JC)
Dear Mr. McDougal:
Section 49.216(a) of the Water Code authorizes a water district to “contract for or employ
its own peace officers with power to make arrests when necessary to prevent or abate the
commission of. . . any offense against the laws of the state.” TEX. WATER CODE ANN. 5 49.216(a)
(Vernon 2000). Pursuant to this provision and the Interlocal Cooperation Act, the Montgomery
County Drainage District No. 6 (“MCDD” or the “drainage district”) has contracted with the City
of Oak Ridge North (the “city”), a Type A general-law municipality, to provide peace officers in the
district. Under article 14.03(g) of the Code of Criminal Procedure, the authority of a peace officer
who is outside his or her geographic jurisdiction to make warrantless arrests for traffic violations is
limited to rangers and officers commissioned by the Texas Department of Public Safety (“DPS”).
You ask whether city police officers acting as drainage-district peace officers under section 49.2 16
of the Water Code may issue traffic citations for state-law traffic violations committed within the
drainage district. We conclude that a city police officer acting as drainage-district peace officer
under section 49.216 of the Water Code is in fact a drainage-district peace officer and is authorized
by section 49.216 to make warrantless arrests for state-law traffic violations within the district.
Article 14.03(g) of the Code of Criminal Procedure, which addresses the authority of peace officers
to make arrests outside their jurisdictions, does not apply.
Before we address your specific question, we begin with a brief review of statutes
establishing the authority of peace officers and the provisions upon which the MCDD-city contract
is based. Pursuant to the Code of Criminal Procedure, the term “peace officer” embraces a variety
of law enforcement officers, including, for example, sheriffs and their deputies; “marshals or police
officers of an incorporated city;” “rangers and officers commissioned by” DPS; and “officers
commissioned by a water control and improvement district under Section 49.216, Water Code.”
TEX. CODE CRIM. PROC. ANN. art. 2.12(l), (3), (4), (15) (V emon Supp. 2002). A police officer of a
Type A general-law municipality has “the powers, rights, duties, and jurisdiction granted to or
The Honorable Michael A. McDougal - Page 2 (JC-0530)
imposed on a peace officer by the Code of Criminal Procedure.” TEX. Lot. GOV’T CODEANN. fj
341 .OOl(e)( 1) (V emon 1999); see also infra note 1.
Under the Code of Criminal Procedure, “[i]t is the duty of every peace officer to preserve the
peace within the officer’s jurisdiction.” TEX. CODECRIM. PROC. ANN. art. 2.13 (Vernon Supp. 2002).
The authority of a peace officer to make a warrantless arrest depends upon whether the officer is
within his or her geographic jurisdiction. Within an officer’s jurisdiction, the officer “shall use all
lawful means” to, among other things, “in every case authorized by the provisions of this Code,
interfere without warrant to prevent or suppress crime,” and “arrest offenders without warrant in
every case where the officer is authorized by law, in order that they may be taken before the proper
magistrate or court and be tried,” id. art. 2.13(b)(l), (4). Under article 14.01(b) of the Code of
Criminal Procedure, a peace officer may “arrest an offender without a warrant for any offense
committed in his presence or within his view,” see id. art. 14.01 (b) (Vernon 1977), but this authority
is limited to the officer’s geographic jurisdiction, see Angel v. State, 740 S.W.2d 727, 732 (Tex.
Crim. App. 1987) (under section 14.01(b) a peace officer can make a warrantless arrest only within
his geographic or territorial jurisdiction). Similarly, the Transportation Code authorizes “[alny peace
officer [to] arrest without warrant a person found committing a violation of’ state traffic laws, TEX.
TRANSP.CODEANN. 9 543.001 (Vernon 1999), but courts have limited this authority to the officer’s
geographic jurisdiction, see Angel, 740 S.W.2d at 732.’
A peace officer also has authority to make certain arrests outside of his or her jurisdiction.
Under article 14.01(a) of the Code of Criminal Procedure, a peace officer, like any other citizen,
may, without a warrant, “arrest an offender when the offense is committed in his presence or within
his view, if the offense is one classed as a felony or as an offense against the public peace.” TEX.
CODE CRIM. PROC. ANN. art. 14.01(a) (Vernon 1977). This authority under article 14.01(a) to make
a warrantless arrest for a felony or an offense against the public peace committed in the officer’s
presence extends statewide and is not limited to acts that take place within the officer’s jurisdiction.
See Romo v. State, 577 S.W.2d 251,253 (Tex. Crim. App. [Panel Op.] 1979).
Article 14.03 gives peace officers specific authority to make warrantless arrests for certain
offenses anywhere in the state. See Yeager v. State, 23 S.W.3d 566,571-72 (Tex. App.-Waco 2000,
pet. granted) (holding that subsections (d) and (g) of article 14.03 extend peace officers’ geographic
authority). Article 14.03(d) specifically authorizes a peace officer “who is outside his jurisdiction”
to arrest without a warrant a person who commits an offense within the officer’s presence or view
“if the offense is a felony, a violation of Title 9, Chapter 42, Penal Code [disorderly conduct], a
breach of the peace, or an offense under Section 49.02, Penal Code [public intoxication].” TEX.
‘See also Yeager v. State, 23 S.W.3d 566, 571 n.3 (Tex. App.-Waco 2000, pet. granted) (noting that “the
continued viability of the specific jurisdictional holding in AngeZ [that city police officers’ jurisdiction is coextensive
with the county sheriffs] may be open to question” because the court based its decision on precise language in former
articles 998 and 999 equating the jurisdiction of city police officers with that of the city marshal, whose jurisdiction
matched that of the county sheriff; that language was carried over into Local Government Code section 34 1 .OO1 but then
amended in 1995 to provide that a Type A general-law city police officer’s jurisdiction is that “granted to or imposed
on a peace officer by the Code of Criminal Procedure”).
The Honorable Michael A. McDougal - Page 3 (JC-0530)
CODE CRIM. PROC. ANN. art. 14.03(d) (V emon Supp. 2002). In addition, article 14.03(g) provides
in pertinent part as follows:
A peace officer listed in Subdivision (l), (2), (3), (4), or (5),
Article 2.12, who is licensed under Chapter 415, Government Code
[now chapter 1701 of the Occupations Code], and is outside of the
officer’s jurisdiction may arrest without a warrant a person who
commits any offense within the officer’s presence or view, except
that an officer who is outside the officer’s jurisdiction may arrest a
person for a violation of Subtitle C, Title 7, Transportation Code,
only if the officer is listed in Subdivision (4), Article 2.12.
Id. art. 14.03(g) (footnote omitted). The last phrase of subsection (g) limits the authority to make
extrajurisdictional arrests for state-law traffic offenses to rangers and officers commissioned by the
DPS. See id. art. 2.12(4) (,‘rangers and officers commissioned by the Public Safety Commission and
the Director of the Department of Public Safety”); TEX. TRANSP.CODE ANN. chs. 541-600 (Vernon
1999 & Supp. 2002) (title 7, subtitle C, “Rules of the Road,‘).
Subsections (d) and (g) of article 14.03 have been construed to authorize officers to make
arrests outside their jurisdictions but not to make investigative detentions. See Yeager, 23 S.W.3d
at 572 (“We do not believe that article 14.03 itself grants a peace officer the right to conduct an
investigative detention outside of her jurisdiction.“). An officer who is outside his or her jurisdiction
must have probable cause to make an arrest under article 14.03. See id. at 568 (“an officer must have
probable cause to arrest before he can detain a citizen under article 14.03 when outside of his
geographic jurisdiction”).
We understand that the MCDD is a drainage district subject to chapters 49 and 56 of the
Water Code* and that the drainage district has contracted with the city to provide peace officers in
the district pursuant to section 49.216 of the Water Code and the Interlocal Cooperation Act. See
Brief, Exhibit A (contract).3 Section 49.216 of the Water Code authorizes a district to contract for
or employ peace officers as follows:
2Chapter 49 defines the term “district” as “any district or authority created by authority of either Sections
52(b)( 1) and (2), Article III, or Section 59, Article XVI, Texas Constitution, regardless of how created,” TEX. WATER
CODEANN. 9 49.001(a)( 1) (V emon 2000), and applies to “all general and special law districts to the extent that the
provisions of this chapter do not directly conflict with a provision in any other chapter of this code or any Act creating
or affecting a special law district,” id. $49.002(a). “In the event of such conflict, the specific provisions in such other
chapter or Act shall control.” Id. Chapter 56 provides that a drainage district may be created “either under and subject
to the limitations of Article III, Section 52, of the Texas Constitution, or under Article XVI, Section 59, of the Texas
Constitution.” Id. 5 56.011 (Vernon 1972). It does not contain a provision regarding peace officers.
‘Brief from Honorable Michael A. McDougal, District Attorney, 9th Judicial District, to Honorable John
Comyn, Texas Attorney General (Feb. 8,2002) (on file with Opinion Committee) [hereinafter BriefJ.
The Honorable Michael A. McDougal - Page 4 (JC-0530)
(a) A district may contract for or employ its own peace officers
with power to make arrests when necessary to prevent or abate the
commission of:
(1) any offense against the rules of the district when the
offense or threatened offense occurs on any land, water, or easement
owned or controlled by the district;
(2) any offense involving injury or detriment to any property
owned or controlled by the district; and
(3) any offense against the laws of the state.
TEX. WATER CODE ANN. 8 49.216(a) (Vernon 2000). Under section 49.216, “[a]ny peace officer,
before beginning to perform any duties and at the time of appointment, must take an oath and
execute a bond conditioned on faithful performance of such officer’s duties in the amount of $1,000
payable to the district. The oath and the bond shall be filed in the district office.” Id. 5 49.216(e).
The Interlocal Cooperation Act, chapter 791 of the Government Code, authorizes a “local
government” to contract with another local government to perform “governmental functions and
services. . . that each party to the contract is authorized to perform individually.” TEX. GOV’T CODE
Am. 8 791.01 l(a), (c) (V emon Supp. 2002). In the Interlocal Cooperation Act the term “local
government” includes a municipality or special district. Id. 0 791.003(4). The term “governmental
functions and services” includes “police protection and detention services.” Id. 5 791.003(3)(A);
see also id. 8 791.006(b) (“In the absence of a contract, if a municipality or county furnishes law
enforcement services to another municipality or county, the governmental unit that requests and
obtains the services is responsible for any civil liability that arises from the furnishing of those
services.“).
In Letter Opinion 98-079, this office concluded that, given its authority under section 49.216
of the Water Code, a municipal utility district could enter into a contract under the Interlocal
Cooperation Act with a county for the provision of law enforcement services in the district by county
deputy constables or sheriffs. See Tex. Att’y Gen. LO-98-079, at 3. Similarly, the district here is
authorized to contract for peace officers under section 49.2 16 of the Water Code, and the city is
authorized to provide police protection under section 34 1.OO1 of the Local Government Code, which
authorizes the “governing body of a Type A general-law municipality [to] establish and regulate a
municipal police force.” TEX. Lot. GOV’TCODEANN. 0 341.001(a) (Vernon 1999). We assume that
the arrangement between the district and the city complies with both section 49.2 16 of the Water
Code and the Interlocal Cooperation Act. See, e.g., TEX. GOV’TCODEANN. 5 791 .Ol l(d)-(f) (Vernon
Supp. 2002) (terms of interlocal cooperation agreement); TEX. WATER CODE ANN. 0 49.216(e)
(Vernon 2000) (“Any peace officer, before beginning to perform any duties and at the time of
appointment, must take an oath and execute a bond conditioned on faithful performance of such
officer’s duties in the amount of $1,000 payable to the district. The oath and the bond shall be filed
The Honorable Michael A. McDougal - Page 5 (JC-0530)
in the district office.“). This office does not generally review or construe contracts4 and, moreover,
you have not asked about the validity of the contract. Rather, you ask about the authority of city
police officers acting pursuant to the contract within the drainage district.
You state that city police officers acting as drainage-district peace officers under the contract
have arrested drivers for traffic offenses committed within their view within the district, but the
justice of the peace has “dismissed the water district’s traffic tickets for want ofjurisdiction.” Brief,
supra note 3, at 2. Apparently there is some concern that article 14.03(g) of the Code of Criminal
Procedure, to the extent it provides that “an officer who is outside the officer’s jurisdiction may
arrest a person for a violation of Subtitle C, Title 7, Transportation Code, only if the officer is listed
in Subdivision (4), Article 2.12 [i.e. a DPS commissioned ranger or officer],” precludes city police
officers from enforcing state traffic laws within the drainage district.
Accordingly, you ask whether “water district peace officers have jurisdiction in the regular
course of their law enforcement duties to make warrantless arrests for traffic violations committed
on the streets within the area encompassed by the water district.” Id. at 3. We conclude that
drainage-district peace officers are authorized to make wart-antless arrests for state-law traffic
violations within the district. Under section 49.216 of the Water Code, a drainage-district peace
officer has the “power to make arrests when necessary to prevent or abate the commission of: (1)
any offense against the rules of the district when the offense or threatened offense occurs on any
land, water, or easement owned or controlled by the district; (2) any offense involving injury or
detriment to any property owned or controlled by the district; and (3) any offense against the laws
of the state.” TEX. WATER CODE ANN. 8 49.216(a) (V emon 2000) (emphasis added). The phrase
“any offense against the laws of the state” includes traffic offenses under title 7, subtitle C of the
Transportation Code. See TEX.TRANSP. CODEANN. 8 542.301(a) (Vernon 1999) (“Aperson commits
an offense if the person performs an act prohibited or fails to perform an act required by this
subtitle.“). Furthermore, a peace officer for whom a district has contracted under section 49.2 16 of
the Water Code who makes a warrantless arrest within the district under the authority of section
49.216 is in fact a drainage-district peace officer and makes the arrest as a drainage-district peace
officer acting within his or her geographic jurisdiction. Article 14.03(g) of the Code of Criminal
Procedure, which addresses the authority of peace officers while outside their jurisdictions and
allows only certain peace officers to make warrantless arrests outside their jurisdictions in certain
cases, does not apply.
We note that this office has concluded on a number of occasions that the Interlocal
Cooperation Act “does not provide a mechanism for a city or any other local government to extend
its police power beyond its statutory jurisdiction. Nor does the Act permit a local government to
delegate to another entity a power it does not have.” Tex. Att’y Gen. Op. No. JC-0219 (2000) at 5
(citing Tex. Att’y Gen. Op. No. JM-191 (1984) at 1; Tex. Att’y Gen. LO-97-055, at 3 n.3). The
4See, e.g., Tex. Att’y Gen. Op. Nos. JC-0032 (1999) at 4 (contract interpretation beyond purview ofthis office);
DM-383 (1996) at 2 (interpretation of contract not appropriate function for opinion process); DM-192 (1992) at 10
(“This office, in the exercise of its authority to issue legal opinions, does not construe contracts-“); JM-697 (1987) at
6 (“review of contracts is not an appropriate function for the opinion process”).
The Honorable Michael A. McDougal - Page 6 (JC-0530)
contractual arrangement here does not extend the police power of the city beyond its statutory
jurisdiction. The law enforcement authority exercised by peace officers within the drainage district
pursuant to the arrangement is the authority of the district under section 49.2 16 of the Water Code,
not the authority of the city under section 341 .OOl of the Local Government Code.
Finally, the Code of Criminal Procedure lists as peace officers “officers commissioned by
a water control and improvement district under Section 49.216, Water Code,” TEX. CODE CFUM.
PROC. ANN. art. 2.12(15) (Vernon Supp. 2002) (emphasis added), but does not list officers
commissioned by drainage districts and other districts that may contract for or employ peace officers
under section 49.216, see id. art. 2.12. Given that section 49.216 of the Water Code provides the
authority for drainage-district peace officers to make warrantless arrests for state-law traffic offenses,
we do not address the significance of that omission, if any. We also note that for purposes of the
Penal Code, “‘[p]eace officer’ means a person elected, employed, or appointed as a peace officer
under Article 2.12, Code of Criminal Procedure, Section 5 1.2 12 or 5 1.2 14, Education Code, or other
law.” TEX. PEN. CODE ANN. 8 1.07(36) (Vernon 1994) (emphasis added). This definition would
include peace officers employed or appointed under section 49.2 16 of the Water Code.
The Honorable Michael A. McDougal - Page 7 (JC-0530)
SUMMARY
Section 49.2 16 of the Water Code and the Interlocal
Cooperation Act authorize a drainage district to contract with another
local government for law enforcement services within the district. A
city police officer acting as peace officer in a drainage district under
such a contract is in fact a drainage-district peace officer. A drainage-
district peace officer is authorized by section 49.216 to make
warrantless arrests for state-law traffic violations within the district.
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JOHN CORNYN
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Attorney General of Texas
HOWARD G. BALDWIN, JR.
First Assistant Attorney General
NANCY FULLER
Deputy Attorney General - General Counsel
SUSAN DENMON GUSKY
Chair, Opinion Committee
Mary R. Crouter
Assistant Attorney General, Opinion Committee