... P.
Honorable Elmer H. Parish
District Attorney
Wichita County
Wichita Falls, Texas
Attention: Shields Heyser
Dear Sir: Opinion No. O-5579
Re: Is a soldier of the United
States Army amenable to
the State Laws of Texas?
And a related question.
This will acknowledge receipt of your recent let-
ter in which you pose two questions for this department to an-
swer. These questions as they appear in your letter are as
follows:
“First, is a soldier of the United States
Army amenable to the State Laws of Texas?
Second, does the military law of the United
States Army supercede all State Laws when
the State makes an arrest for a soldier com-
miting a criminal act against the State of Texas? ”
Title 10, U.S.C.A., Section 1546, provides as fol-
lows:
“Delivery of offenders to civil authorities
(article 74). P’hen any person subject to mili-
tary law, except one who is held by the military
authorities to answer, or who is awaiting trial
or result of trial, or who is undergoing sentence
for a crime or offense punishable under these
articles, is accused of a crime or offense com-
mitted within the geographical limits of the States
of the Union and the District of Columbia, and
punishable by the laws of the land, the commanding
officer is required, except in time of war, upon
application duly made, to use his utmost endeavor
to deliver over such accused person to the civil
.
Hon. Elmer H. Parish, Page 2 (O-5579)
authorities, or to aid the officers of justice in
apprehending and securing him, in order that
he may be brought to trial. Any commanding
officer who upon such application refuses or wil-
fully neglects, except in time of war, to deliver
over such accused person to the civil authorities
or to aid the officers of justice in apprehending
and securing him shall be dismissed from the
service or suffer such other punishment as a
court-martial may direct.
‘U’hen, under the provisions of this article,
delivery is made to the civil authorities of an of-
fender undergoing sentence of a court-martial,
s~uch delivery, if followed by conviction, shall be
held to interrupt the execution of the sentence of
the court-martial, and the offender shall be re-
turned to military custody, after having answered
to the civil authorities for his offense, for the com-
pletion of the said court-martial sentence.”
Title 10 U.S.C.A. Sections 1564 and 1565, respec-
tively provide as follows:
“Any person subject to military law who
commits murder or rape shall suffer death or
imprisonment for life, as a court-martial may
direct; but no person shall be tried by court-
martial for murder or rape committed within the
geographical limits of the States of the Union and
the District of Columbia in time of peace.”
“Any person subject to military law who
commits manslaughter, mayhem, arson, burglary,
house-breaking, robbery, larceny, embezzlement,
perjury, forgery, sodomy, assault with intent to
commit any felony, assault with intent to do bodily
harm with a dangerous weapon, instrument, or
other thing, or assault with intent to do bodily
harm, shall be punished as a court-martial may
direct.”
It is well settled that in time of peace a person in
the Military Service of the United States who, in any portion of
a state or territory not within the exclusive jurisdiction of the
United States, commits a criminal offense recognized and made
punishable by the local laws is amenable to the state or territor-
ial courts therefor. U. S. v. Lewis (C.C. Pa. 1904) 129 F. 825,
Hon. Elmer H. Parish, Page 3 (O-5579)
affirmed 26 S.Ct. 229, 200 U.S. 1, 50 L.Ed. 343; 36 Am.Jur. p.
261; 6 C.J.S. p. 425. By virtue of section 1546, supra, in time
of peace it becomes the duty of the commanding officer of a
military post upon application duly made to deliver the accused
person in military service to the civil authorities or to aid in
the apprehension of such offender. A wilfull neglect of this duty
subjects the commanding officer to dismis,sal from service or
other punishment as the court-martial may direct.
A different situation exists however in time of war.
It will be noted in section 1546, supra, that it is the duty of the
commanding officer to deliver a person under his command to
civil authorities upon application therefor except in time of war.
Likewise, section 1564, supra, empowers the military courts to
punish a person subject to military law for committing murder
or rape, but pr,ohibits a court-martial to try a person for such
offense in time of peace. The contention has often been made
that the wording of these sections in the ,above manner gave the
military courts exclusive jurisdiction in time of war of a person
in military service; who commits an offense recognized and pun-
ishable by local laws. The courts have consistently held, however,
the military courts in time of war do not have exclusive jurisdiction
over offenses committed by persons in military service, but rather
the military courts and the civil courts have concurrent jurisdiction
over these offenses committed by such persons. Caldwell v. Parker
(Ala. 1920) 40 S.Ct. 388. 252 U.S. 376, 64 L.Ed. 621; Kahn v. Ander-
son (Kan. 1920) 41 S.Ct. 224, 255 U.S. 1; U.S. v. Hirsch, 254 F. 109;
6 C.J.S. pn 425.
This concurrent jurisdiction in time of war of the mili-
tary and state courts over offenses against local laws committed
by persons in military service is not in the true sense a concurrent
jurisdiction as generally understood. As a rule the courts of con-
carrent jurisdiction are on an equal basis and the court which first
obtains jurisdiction over the subject matter of a controversy will
retain jurisdiction until final adjudication and will not be hindered
by any action of a court of concurrent jurisdiction. This procedure
is not followed in determining the jurisdiction between military and
civil courts, as the Federal and State courts fully recognize that the
military courts have a preference or a prior or paramount right to
the jurisdiction over an offense committed by a person in military
service. The courts are actually not on an equal basis since the
Military Courts, if they desire, may assume jurisdiction even though
contrary to the wishes of a state court. Ex Parte King, 246 F. 868;
People v. Denman, 179 Cal. 497, 177 Pac. 461; Funk v. State, 208
S.W. 509. It is well settled that the military courts can waive this
paramount or prior right they possess to the jurisdiction of an
Hon. Elmer H. Parish, Page 4 (O-5579)
accused by releasing the custody of the offender to the civil au-
thorities or by taking no action whatsoever and thus acquiesce
to the civil authorities assuming jurisdiction. Caldwell v. Par-
ker, supra, Colemanv. Fenneser, 97 U.S. 509, 24 LEd. 1118;
Funk v. State, supra. In the recent case of Ex Parte Sumner,
158 S.W. (2d) 310, the Texas Court of Criminal Appeals after
discussing section 1546, supra, had the following to say:
“Under this section, two exceptions exist to
the application thereof; these are: (a) when the mili-
tary subject is being held to answer for trial or is
undergoing a sentence for an offense under the Ar-
ticles of WarI (b) when a state of war exists. The
effect of these exceptions, then, is to say that, when
a state of war exists, or when the subject is being
held for trial, or is serving a sentence, for an of-
fense punishable under the Articles of War, the com-
manding officer is not required to deliver him to the
civil authorities, The reason therefor is obvious, for
the civil authorities ought not--especially in time of
war--to be empowered to interfere with the military
authorities in the exercise of control and jurisdiction
over their military subjects. But, whether the deliv-
ery of a particular military subject into the custody
of civil authorities for trial would or would not inter-
fere with or hamper the military establishment is a
matter primarily within the knowledge of the officers
in charge thereof. Such being true, there is nothing
to prevent the military authorities from waiving the
exceptions mentioned. That such exceptions were
waived in the instant case is shown by the fact that
the appellant was by the military authorities deliv-
ered into the custody of the sheriff for trial. There
is nothing to show that the military authorities have
asserted any right to proceed against appellant for
the offense charged against him, nor that such au-
thorities are investigating, or have made any investi-
gation, relative thereto.”
As to when a military court has waived this paramount right or
acquiesced is subject to conjecture, for in the case of Ex Parte
King, supra, even after the civil authorities indicted a soldier,
the military court could intervene and obtain jurisdiction, although
Hon. Elmer K. Parish, Page 5 (O-5579)
in this case the so-called waiver was said not to come from the
proper officers.
We trust the foregoing fully answers your questions.
Very truly yours
BY
Fred C. Chandler
Assistant
BY
Robert 0. Koch
Assistant
FCC:FO
ROK:FO
APPROVED SEP 14, 1943
is/G rover Sellers
First Assistant
Attorney General
Approved:
Opinion Committee
By /s/ BWB
Chairman