Untitled Texas Attorney General Opinion ( 2009 )

GREG ABBOTT
July 23,2009
The Honorable Rex Emerson Opinion No. GA-073 1
Kerr County Attorney
Kerr County Courthouse Re: Whether the Kerr County Sheriff is required to
700 Main Street, Suite BA-103 maintain a room in the jail dedicated to recording
Kerrville, Texas 78028 the interrogation of a person arrested for driving
while intoxicated (RQ-0783-GA)
Dear Mr. Emerson:
You state that pursuant to an uncodified law the Kerr County Sheriff maintains a room with
videotape equipment for recording persons who have been arrested for driving while intoxicated, and
you ask whether he must continue to maintain the room and the recording equipment.' The law you
inquire about was adopted in 1983 as section 24 of a bill amending provisions on the offense of
driving while intoxicated. See Act of May 27, 1983,68th Leg., R.S., ch. 303, § 24,1983 Tex. Gen.
Laws 1568, 1605. Section 24 provides in part:
(a) Each county with a population of 25,000 or more
according to the most recent federal census shall purchase and
maintain electronic devices capable of visually recording a person
arrested within the county for an offense under Article 67011-1,
Revised Statutes, or . . . [Penal Code section 19.05(a)(2)].
(b) The sheriff of the county shall determine upon approval
by the county commissioners court the number of devices necessary
to ensure that a peace officer arresting a defendant for an offense
listed in Subsection (a) of this section may visually record the
defendant's appearance within a reasonable time after the arrest.
Id.
The Sheriff believes that section 24 "is no longer applicable to require him to maintain the
dedicated room or eq~ipment."~ He seeks authority to dispose of the equipment and use the room
for other law enforcement purposes. Requestor's Brief at 2.
'Request Letter at 1-2 (available at http:l/www.texasattorneygeneral.gov).
'Requestor's Brief at 2 (attached to Request Letter, available at http:l/www.texasattorneygeneral.gov).
The Honorable Rex Emerson - Page 2 (GA-0731)
Section 24 by its plain language requires counties with a population of 25,0003or more to
purchase and maintain electronic devices to make visual recordings of certain arrested persons. It
does not require a county to maintain a room dedicated to this p ~ r p o s e nor
, ~ does it specie the
location where the equipment is to be used. You state that all of Kerr County's patrol vehicles are
equipped with video recording devices, which presumably "are capable of visually recording a
person arrested within the county" for driving while intoxicated. Act of May 27, 1983, $ 24(a), at
1605; see Request Letter at 2. Nothing in section 24 prohibits the Sheriff from placing the required
video recording devices in patrol cars and using the room for other official purpose^.^
"[Slection 24 has not been repealed" and remains in effect "even though it has not been
codified." Cooper v. State, 961 S.W.2d 222,225 n.2,226 (Tex. App-Houston [lst Dist.] 1997,pet.
ref d). The Legislature did not give section 24 an official article number in the Revised Civil
Statutes. See Act of May 27, 1983, $ 2 4 n. 16, at 1605. The text of section 24 was carried forward
into the Revised Statutes and placed immediately following article 67011-1. See id.; see also
Cooper, 961 S.W.2d at 225 n.2,226 (setting out the history of section 24). In 1993, the Legislature
repealed article 670 11-1 in a bill amending statutes on driving while intoxicated. See Act of May 29,
1993, 73d Leg., R.S., ch. 900, $ 1.15, 1993 Tex. Gen. Laws 3586, 3704.6 The substance of the
offenses defined by article 670 1I- 1 is now found in Texas Penal Code sections 49.04 and 49.07. See
TEX.TRANSP. CODEANN.fj 52 1.342revisor's note (Vernon 2007); see also TEX.PENALCODEANN.
$5 49.04 (Vernon 2003), 49.07 (Vernon Supp. 2008). The Legislature did not repeal section 24,
although West Publishing Company omitted references to this provision after article 670 11-1 was
repealed. See Cooper, 961 S.W.2d at 225 n.2,226. The repeal of article 670 11-1 did not change the
meaning and scope of section 24. See Harris County Dist. Attorney's Oflce v. J. T.S., 807 S.W.2d
572, 572 (Tex. 1991) (when a referenced statute is repealed, the meaning of the referencing statute
does not change, absent clear legislative intent to the contrary). The requirements of section 24
remain in effect.
3The population of Kerr County was 28,780 in 1980 and 43,653 in 2000. See U.S. CENSUS BUREAU, TEXAS
POPULATION OF COUNTIES BY DECENNIAL CENSUS:1900 to 1990 (available at http://www.census.gov/population/
cencounts/txl90090.txt (last visited July 14,2009)); U.S. CENSUS BUREAU,STATE& COUNTY QUICKFACTS (available
at http://quickfacts.census.gov/qfd/states/48/48265html (last visited July 14,2009)).
4We are unaware of any law imposing this requirement on a county sheriff.
51fthecounty no longer needs certain video recording equipment, the commissioners court may sell or otherwise
dispose of it as surplus or salvage property. See TEX.LOC. GOV'TCODEANN. § 263.152 (Vernon Supp. 2008).
6Another1993 enactment amended article 67011-1. See Act ofMay29, 1993,73dLeg., R.S., ch. 886,s 8,1993
Tex. Gen. Laws 3515,3523. Article 67011-1 as amended in 1993 was repealed in 1995. See Act ofMay 29, 1995,74th
Leg., R.S., ch. 3 18, § 63, 1995 Tex. Gen. Laws 2734, 2755.
The Honorable Rex Emerson - Page 3 (GA-073 1)
S U M M A R Y
Section 24 of the Act of May 27, 1983, 68th Leg., R.S., ch.
303, requires counties with a population of 25,000 or more to
purchase and maintain electronic devices to make visual recordings
of persons arrested within the county for the offense of driving while
intoxicated. Section 24, which remains in effect, does not require a
county to maintain a room dedicated to videotaping the arrested
persons, nor does it specify the location where the equipment is to be
used.
Attorney ba(era1 of Texas
ANDREW WEBER
First Assistant Attorney General
JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General, Opinion Committee