Untitled Texas Attorney General Opinion ( 1945 )

Honorable Wineton P. Brumett opinion No. o-6453
County Attorney Re: Arreet without warrant for
Dickem County violation of Article 827a, Sec.
Spur, Texas 12, Vernon’0 Annotated Penal Code
by sheriff or deputy; right to
Dear Sir:
We have your letter of recent date in which you propound the
following question:
“May the sheriff or hie deputy of thie particular county, arrest
an offender of Article 827a, Sec. 12 of the Penal Code of thie State,
without a warrant being theretofore issued by a magietrate?”
We take it you have reference to the existing article of Vernon’a
Annotated Penal Code knowh and designated by the author.9thereof an “Art.
827a, Sec. 1.2.” While in specific language you do not refer to other than
“the Penal Code of this State”, it is noted that in the last official re-
vision of the Penal Code or Revised Criminal Statutes of Texas of 1925,
there wa8 no such article numbered, a6 827a, Sec. 12. It is well knowo
by us that Vernon’s work is widely used by the lawyers of Texas, and it
is by no means uncommon to make such reference a6 has been used for con-
venience In grouping new enactments of the Legislature into the private
publication. Vernon’s Codes, however, are not official. The official
publications of this state with reference to criminal statutes are the
Revised Criminal Statutes of Texas, 1925, and the various sessron acts
of the several Legislatures.
Article 827a, 8ec. 12, Vernon’8 Annotated Penal Code, was en-
acted by the Forty-First Legislature at it6 second called session in 1929
ae Section 12 of Senate Bill No. 11, which is published officially as
General Laws of the Forty-First Legislature, Second Called Sessi.on,Chapter
42, page 72, the section under discussion being at page 76.
“Sec. 12. The Department, with reference to State Highways
under its juriadictfon is hereby authorized to designate main trav-
eled or through highwaya by erecting at the entrances thereto sign6
notifying drivere of vehicles to come to a full stop before enter-
ing or crossing any such highway; and whenever any such sign hae been
so erected, it shall be unlawful for the drl.veror operator of any
vehicle to fail to stop in obedience thereto.”
. .
Hon. Ulnrton P. Brummett, page 2 (O-6453)
The Chapter of the Oamral kw# (&at Log. 26 C# 8, Ch, 42, p.
72, nuprr) of Welch the above quoted rsctlon 11 a part, derlr wlth many
dlffrrmt frrturrr of r~gulrtlon of the operrtlon of vehlclrr on public
hlghmyr . The Act doe@ not pratrnd to amendany extrtiag ltatute by ex-
pram terminology. It doer repeal by direct coau&mdfive different artl-
clrr of the Pe+l Co& of 1925 (Artr. 789, 793, 818, 823 and 824). See
Eectlon 18 of the Act for thin exprsrr repeal.
The Act under coarlderation doer not purport to clothe officera
with the right to srreat without warrant. In none of lta provirlone la
mention made of the method of arrest, and thin requires ua to look elm-
where to amcertain whether an arrekfor violation of ito rover81 provirlonr
(oapeclrlly Section 12, rupra), may be made without a warrant. Section
16 of the Act MI amended in 1931 (Acts 1931, 42nd Leg., ch. 164, 0 1,
p. 278) to specifically authorize State Iiighwny Patrolmsn “to purrue and
arrert any perron for any offenre when raid perron lr found on the highway”,
md aI to Tuch offlcrrr the courte have affirned their right to arrert
without warrant. Thir il becaufle of the emendmentreferred to. NewWay
Lumber Companyv. Bmlth, 128 TSX, 173, 96 8. W. 2d 282. But rwch anthoritx
to other offlcqrr ruch a~ rheriffr and their aeputier,
SOBHead v, State, 131 Tex. Cr. R. 96, 96 8. W. 26
Article 803 of the Penn1 Code (Official edition) occurti almort
in the very middle of Chapter 1 of Title 13, Numerousoffenrer are de-
fined in @id chapter prior to the deal&nation of Article 803, and numerour
offmnrer are defined in raid chapter after the place of publication of
rsld article. For example, we note the following offenner anterior to
raid articler Obrtruction of navigable atream] obrtruction of public
road, rtreet, etc.) obztruction of railwayaj rate of rpeed of vehiclei
violation of promire to appeari noire devicerj front and tail light@1
brakeel law of the roadj and intoxicated driver. Porterior to raid
article we find operation of pnrcgirteredvshiclej operating under lm-
proper licenre] width of tirerj mlrrorr) operating overloaded vehiclerj
tire equipment and certain offenrer relating to rtreet railwayr, and lome
otherr.
Article 803, Penal Code, readr an followr:
“Any,peace officer ia authorized to arrelt without warrant any
psrron found c~ittlng I violation of any provi#lon of the preceding
m.%lclea of thlr chapter.” (Empharir ourr).
In a recent came by the Commierion of Appeala, opinion adopted
by the SupremeCouth, a full dircuraion of the right to arrelt without
warrant appearr. We refer to Heath v. Boyd, 141 Tex. 569, 175 8. W. 26
214, reverring Tey. Civ. App., 1’71 8. W. 26 396.
Hon. Winston P. Brummett, page 3 (O-6453)
The fade in that cane rhow that the commieeionere’ court of
Irion County undertook to conrtruct a certain rod to crone land of one
Johnron. After tha work began a diaputs arose between Johnson and the
court an to the location of the road. Heath, an employee of the commis-
sioners’ court, was operating a maintainer to clear the right-of-way,
when Johnlon went to him and ordered him to desist. Aeath pereiated with
the maintainer and Johneon called Boyd, the sheriff of the county, The
Sheriff went to Heath and asked him to stop the work. Heath's reply was,
"The only way to stop me la to arrest me." Boyd then said, "If that is
the way you feel about it, I will have to arrest you." The arrest and
detention followed. The point at issue in the case haa to do with the
authority of a peace officer to arrest without warrant.
Without undertaking to quote the entire case, the reading of
which is to be commended, however, we do here emphasize the following:
"Art..1, sec. 9, of the Constitution of Texas, Vernon's Ann.
St., guarantees that the people shall be secure in their persona from all
unreasonable seizures. Therefore, despite obiter dicta expreesione to
the contrary in a few cases, our courts, both civil and criminal, have
consistently said that the arrest of a citizen without warrant is an un-
reasonable seizure of his person, unless it is expressly authorized by
statute. An early criminal case ia Lacy v. State, 7 Tex. App. 403; a late
one 16 Rodriguez v. State, Tex. Cr. App. 172 $3.W. 2d 502. A recent civil
case is Continental Casualty Co. v. Miller, Tex. Civ. App., 135 S.W.2d
501. There are many others. See McBeath v. Campbell, Tex. Corn.App.,
12 S. U. 2d 118; Karner, et al. v. Stump, 12 Tex. Civ. App. 460, 34 S.W.
656; Regan v. Rarkey, 40 Tex. Civ. App. 16, 87 S.W. 1164, error refused;
Jones v. State, Tex. Civ. App., 109 S.W.2d 244; Clement et al. v. Emmons,
Tex. Civ. App., 170 S.W.2d 610, error refused, want of merit; Mundine
v. State, 37 Tex. Cr. R. 5, 38 S.W. 619; Staples v. State, 14 Tex. App.
136; Allen v. State, Tex. Cr. App., 66 S.W. 671; Barless v. State, Tex.
Cr. App., log S. W. 934; Buchanan v. State, 127 Tex. Cr. R. 100, 74 S.W.
2d 1022.
"And, since the subject is thus exclusively regulated by the
Constitution end statutes of this state, it follows that the authority
to arreat without warrant cannot be conferred by the common law or by
the court decisions of other states. Lacy v. State, supra; 6 C.J.S.;
Arrest $ 5 a, p. 579* This rule has two ob.jectsnamely (1) to protect
the right of the citizen to his liberty, under the presumption of his in-
nocence of all crime; and (2) to inform peace officers as to the limits
of the authority with which they are invested. Ex parte Sherwood, 29
Tex. App. $34, 15 S.W. 812. In Pratt v. Brown, 80 Tex. 608, 16 S.W.
443, 445, relied on by Boyd, the precise question was the authority of
a policeman to arrest, without warrant, a person found drunk in a rail-
way station, and it was correctly held that the arrest was legal because
Art. 363, of the Revised Statutes of that day, authorized the city marshal
and his deputies to 'arrest without warrant * * * all who are guilty of
Hon. Winston P. Brummett, page 4 (O-6453)
say disorderly conduct or dirturbance whatever’, and the opinion ex-
prerlly recoguize# that the court did not have to rsrort to the common
law to decide the qusrtion. Hence my rtatementr therein that the co-on
law authorleer arrert without warrant in lome in.rtancer, or that peace
officerr are isventedwith that broad power an conrervatorr of the peace,
are purely gratuitouz, and they zre not even of perruanive force in the
face of many cane0 to the contrary.
“If the eituation claimed to authorize an arrert without warrant
does not come aquarely withln zome one of the foregrjtigclaseifica-
tionn, the authority doee not exiet, becauee the et&tutes are rtrictly
con&rued. Authorities, aupra.” (-Emphasisoure.)
The caze zeemz to be the last expreezion of our highest appellate
court upon the subject. The quotation6 from Texas Jurisprudence mentioned
by you muat yield to the quotation6 from the hi,ghestcourt in Texas aa
given above. It ie true, a8 Is mentioned by the court, that there are
expreesions to the contrary in zome canes.
Applying the tests given,by the Supreme Court, we conclude that
neither the SherifFnor his deputies may arrest wi.thoutwarrant one offend-
ing against Article 827a, Sec. 12 of Vernon’s Annotated Penal Code, supra,
whether the offenee is committed i.nor out of the preeence of such.officers.
Certainly Article 803, Penal Code, does not apply, nor do we find any other
provision in the statutes to take ,theoffense in queetion out of the rule
requiring 8 warrant of arrest fnsofar as the sheriff is concerned. The
r -
Hon. Winston P. Brumme
tt, page 5 (O-6453)
offense is a misdemeanor; it would not within itself constitute B breach
of the peace.
Yours very truly
APPROVED
MAR30, 1945 ATTORNEY
GENERAL
OF TEXAS
/n/ Carlor C. Aehley
By /n/ Benjamin Woodall
FIRSTASSISTMT Benjamin WoodalL
A'ITORREY
GFJGBAL Aesistant
BW:zd:lm
APPROVED
OPINION
COMMITrEE
BY /s/ BWB
CHAIRMAN