Mr. Tom L. Hartley
CriminalDl&tHct Attome)-
Edlnburg, Texas
Dear sir:
Oplnlon Ed. o-317
Re: Authorlty~of sherlff,~oonatable
and deputy of el+r, to,mak6 au
arrest tithout'varrant,for via-
latloa oi hIghway lava?
Your request for an oplnloa aa to the right
of a ahsr.lff,deputy sheriff, constable or deputy con-
stable to make au arrest wlthout a warrant for a vlola-
tlon of the hlghway laws when such officer la tiot
clothed as provided In Article 803b of the Penal Code,
has been received by thla Department.
The general lairon this subject la Article
803 R. c. S., which reads 88 followe:
"Any peace officer 1s authorized to
arrest without warrant any person found
committing a v1olatlon of auy provision
of the preceding articles of.,thlschapter."
Your letter of request dlscuaaes the two
moat recent caseb relating to your Question. Rowever,
In our opinion, the case of Ex’Parte Eeillng, 82 SW
(2d) 644,~goes further than mbrely holding that Artl-
cle 803a waa uncoustitutlonal~beaaus& It was a spe-
cial law. It holds'thatArtlole 803a, as enacted by
the Flf'th'Calledbeaslon of the 4lst Legislaturewas
not materially dlfrerent from 803a aa amended by the
Second Called Session of the 41at Leglalatur6 and ap-
plying the rule of constructionof the Scogg1n.aaaae,
supra, the zrequlretuent
of a uniform was unconatltutlona1.
Mr. Tom L. HartleT, Harch 13, 1939, Page 2
The case of Scott va. State, 114 SW (26) 564,
referred to in your letter, agrees with the "Helling
case" in holding that the statute requiring offl~ers to
wear oertaln unlSorms, caps and oSSlclal badges was in
contraventionof the State Coastltntlon.
These two cases rely on the decision of the
court and the opinion of Judge Lattlmore of the Court
of Criminal Appeals in the ease of Scogglna ~8..State,
38 SW (2nd) 592. Judge Lattlmore held that the'requlre-
ment of officersto wear certain types of wea, caps
and uniforms was la vlblatlon of Section 1, Article 2 of
our ConstitutionIn that It waa an unwarrantedlnter-
Serence of one branch of our government with another.
Be Surther'statedthat the requirewentwas in contra-
ventlon~of our Bill of Rights, Se&Ion 19, Article 1 bf
our Constitutionvhlch forbids any citizen of this State
to be deprived of property, privileges and lmmunltlea
except by due course of the law, and to ccmpel, by
, statute, an officer to acquire certain ralment before he
can adequatel;renforce the laws or protect the publio
of his community from all thb,pervadlngspeed fiends
was a violation of our Constitution.
On motion for re-hearing in the Scogglna case,
Judge Morrow wrote the opinion, denying tha motion for
re-hearing. In addition to the miatters discussed la the
opinion of Judge.Lattlmore,Judge Borrow called atteatlm
to the fact that Chapter 47, Section'1 of the Acts of
the 41st Leglalat~e required the peace officersmaking
arrests for violation of the highway laws to'wear a pre-
scribed uniform. Rothlng in Chapter 47'~orelsevhere In
the Statutes require that peaoe officers wear UnIforma
la dischargingtheir duties, but under the terms of Chap-
ter 47, Section 1, IS the peaoe officer does not vear a
un1?orm, he cannot obey the general law and arrest ollc
violating the highway lawa. IS Article 803b la valid,
the option is with the officer to wear a uniform and en-
Soroe the highway laws, or leave of? his uniform rellev;
lng himself of the duty to enforce that law, vhlch In
effect, suspends the law. That 18 la violation of '.
Artlole 1, Section 28 of the Constitutionof Texan,
providing that:
"Ho power of auapendlng laws in this
State shall be exercised except by the
Legislature."
--.q. -
“I ;
Lo V
l&. TOB L. Hartley, March 13, 1939, Page 3
Article 803b Is'the rate& effort of the
Legislatureto require the oiflcers of thla State to
wear a badge at a certain place on hla body, to wear
a cap, coat or blouse and trousers of named colors
before he can make an arrest for a violation of the
highway laws of thl& State, though he is authorized _
by Article 803 to make such an arrest. In our opln-
Ion, the Leglalature Is attempting to do vhat Judge
Lattlmore in the "Scogglns case" said they could not
do. We think that the requirement OS a uniform la
Article 8031,violates the Constitutionof Texas for
the reasons given in the opinions of Judge Morrow and
Judge Lattlmore.
It is the opinion of this Department that
a sheriff, constable, or deputy of either, may make
an arrest without a warrant for a violation of the
highway laws of this State.
Very truly yours
ATTORNEY(3RRRRALOFTRXAS
BY id MorriS Hodges.
Morris Rod&es
Assistant
MR:AW:mja
Approved:
/a/ Gerald C. Mann
ATTOR~GRNERAL OFTRXAS