Christopher v. State

ON APPELLANT’S MOTION FOR REHEARING

CLINTON, Judge, dissenting.

The majority holds that § 153 of Article 6701d, V.A.C.S., grants game wardens au*938thority to arrest a citizen for speeding. But its formulation is such that every person within any classification listed in Article 2.12, V.A.C.C.P., will be empowered, by this decision, to stop and arrest anyone “found committing a violation of any provision” of the Uniform Act Regulating Traffic on Highways, Article 6701d, V.A.C.S.1 Yet there cannot be found a legislative intent to enlist in the battle against traffic violators every single “peace officer” in the State of Texas.

In 1917 when the Legislature enacted the law of the road, Article 801, P.C. 1925, and other provisions to regulate driving motor vehicles on public highways, it included the following:

“Any peace officer within this State shall be authorized to arrest without warrant any person found committing a violation of any of the penal provisions of this Act within his view or in his presence.”2

At that time the predecessor to Article 2.12, supra, identified as peace officers:

“The sheriff and his deputies, constable, the marshal, constable or policeman of an incorporated town or city, and any private person specially appointed to execute criminal process.” 3

Article 43, C.C.P. 1911.4

However, then as now, notwithstanding the duties and powers generally stated in terms similar to Article 2.13, V.A.C.C.P., each category of peace officer drew power and authority from a specific statutory grant. The sheriff and his deputies from, inter alia, Articles 2.175 and 2.20,6 V.A.C. C.P., respectively; constables as provided in Article 6885, V.A.C.S.;7 marshals in Article 999,8 V.A.C.S., and police officers with powers of marshals by Article 998, V.A.C.S.

Thereafter when a legislative act bestowed particular power and authority pertaining to some aspect of law enforcement, likely as not the recipient category was added to Article 2.12. Thus, after the Texas Ranger Force was reorganized and its members again clothed with like powers of sheriffs by Acts 1919, p. 263, its members were included in old Article 36, C.C.P. 1925. Like treatment was accorded other classifications once their prescribed power and authority had been legislatively provided. So it was that the “jurisdiction” of specially created “peace officers” was prescribed and *939their powers bestowed by particular law.9 It is for that reason that not every peace officer possesses in common with all other peace officers the same powers, duties and responsibilities. See Bennett v. State, 136 Tex.Cr.R. 192, 124 S.W.2d 359 (1939). Accordingly, Articles 2.12, 2.13 and other related prescriptions of the code of criminal procedure must be considered in light of the particular legislative act specially designed for a particular category of persons charged with enforcing a certain statute or otherwise limited in law enforcement activity.10 Compare King v. State, 132 Tex.Cr.R. 200, *940103 S.W.2d 754 (1937) with Bennett v. State, supra.

The office of Game, Fish and Oyster Commissioner was created by Acts 1907, 30th Leg., ch. 137, p. 254, and § 3 of that Act granted him power to enforce the game law. Among others he was granted power to arrest without a warrant “any person found by him in the act of violating any of the laws for the protection and propagation of game or wild birds...” Thereafter, whatever the officer or agency charged specifically with enforcing our game laws, the substance of power to arrest without a warrant remained essentially the same. See P.C. 1911, Article 897 and P.C. 1925, Article 905;11 Article 978f-3, § 6, P.C. 1925, as amended. Smith v. State, 169 Tex.Cr.R. 58, 331 S.W.2d 321 (1960): “[Djeputy game and fish wardens are authorized to arrest persons either with or without a warrant in enforcement of the game laws of this State.” V.T.C.A. Parks and Wildlife Code, § 12.102 is derived from those provisions of law.

Contemporaneously our state parks were watched over by a keeper “who shall be clothed with all the powers and authority of a peace officer of the county, for the purposes of caring for and protecting the property within said parks.” Article 6069, V.A. C.S. Then the State Parks Board was abolished, and its powers, duties and responsibilities were transferred to the Parks and Wildlife Department — the reconstituted game and fish commission. Acts 1963, 58th Leg., p. 945, ch. 373, § 1. In 1969 the Legislature authorized the Parks and Wildlife executive director to commission as peace officers any employee provided for in the general appropriations act, Article 978-5c, P.C. 1925, as amended, the stated reason being that “there now is no provision for full and adequate enforcement of all laws in state parks and state historical sites,” Acts 1969, 61st Leg., p. 1988, ch. 677, § 3. Such is the source of § 11.019, V.T.C.A. Parks and Wildlife Code.

At some point in time there seems to have been a classification of employee of the Parks and Wildlife Commission called game management officer: in 1971 the Legislature added that category to Article 2.12, along with campus security personnel and board of control officers. Acts 1971, 62nd Leg., p. 1116, ch. 246, § 3. The next session continued to call them game management officers when the Legislature added airport security personnel, Acts 1973, 63rd Leg., p. 9, ch. 7, § 2. Then, in 1975 they became “law enforcement officers” instead of game management officers, as the Legislature added municipal park and recreational patrolmen and security officers, without regard to population. Acts 1975, 64th Leg., p. 480, ch. 204, § 1. However, the term still appears in § 31.121 of V.T. C.A. Parks and Wildlife Code, in connection with enforcing provisions of the Water Safety Act.

So it came about that law enforcement officers commissioned by the Parks and Wildlife Commission are said by Article 2.12, supra, to be “peace officers”. However, their actual authority necessarily flows from a legislative grant that is conditioned upon one’s status as “an authorized employee of the department.” Such an employee is commissioned to “arrest without warrant any person found in the act of violating any law relating to game, birds, or fish.” V.T.C.A. Parks and Wildlife Code, § 12.102(a) and (b).

Accordingly, a law enforcement officer commissioned by the Parks and Wildlife Commission is without power to make a warrantless arrest for a violation of the *941Uniform Act Regulating Traffic on Highways unless the violation is shown to be somehow related to an offense denounced by a provision of the Parks and Wildlife Code, and I would so hold. Since the majority does not, I respectfully dissent.

ONION, P.J., and ROBERTS and TEA-GUE, JJ., join.

. The ranks mustered by the majority would include, inter alia:

investigators for prosecutors;
Alcoholic Beverage Commission agents; arson investigators;
any private person appointed to execute criminal process;
campus security personnel of higher education institutions;
Board of Control officers;
airport security personnel;
municipal park and recreational patrolmen and security officers;
security officers of the State Treasurer.

. Acts 1917, 1st C.S. 35th Leg., p. 48, ch. 31, § 1, codified as Article 803, P.C. 1925. (All emphasis is mine throughout unless otherwise indicated.)

. Since the Old Code, under prescribed circumstances “a suitable person” may be specially appointed to execute such process as a warrant of arrest. See Article 15.14, V.A.C.C.P. But his authority terminates once the purpose of the appointment has been accomplished. O’Neal v. State, 32 Tex.Cr.R. 42, 22 S.W. 25 (1893).

. Not specifically included were members of the Texas Ranger Force, but by an earlier act they had been expressly clothed with arrest powers of sheriffs. Acts. 1901, p. 41, § 11; Article 47a, C.C.P. 1916.

. “Each sheriff shall be conservator of the peace in his county, and shall arrest all offenders against the laws of the State, in his view or hearing...”

. “Wherever a duty is imposed by this Code upon the sheriff, the same duty may be lawfully performed by his deputy.”

. “Each constable shall execute and return according to law all process, warrants and precepts to him directed...”

. “[H]e shall be active in quelling riots, disorder and disturbance of the peace within the city limits and shall take into custody all persons so offending against the peace of the city. .. It shall be his duty to arrest, without warrant, all violators of the public peace...”

. The State Highway Patrol was created in 1931, see Article 827a, § 16, V.A.C.S. (remainder transferred to Article 6701d-ll, V.A.C.S.), and was initially “charged primarily with the duty of enforcing all the State Laws relating to vehicles and traffic on the public highways,” but also “vested with all the rights and powers of peace officers, to pursue and arrest any person for any offense when said person is found on the highway,” id., § 16. See now Article 4413(12), V.A.C.S.

The State Liquor Control Board was created in 1935 and it and its administrator were empowered “to commission such number of inspectors and representatives which it deems necessary to enforce the provisions of [the Texas Liquor Control] Act.” Articles 666-5, 6 and 7b, P.C. 1925, as amended. See now V.T.C.A. Alcoholic Beverage Code, § 5.14.

When the revised code of criminal procedure was enacted in 1965, Article 2.12 included, along with categories previously listed, officers of the Department of Public Safety and law enforcement agents of the Texas Liquor Control Board.

Though investigators of district and county attorneys had been granted “the same authority as the sheriff of the county to make arrests anywhere in the county...” in 1935, Article 326k-6, V.A.C.S., they were not added until a 1967 amendment. So were each member of an arson investigating unit of a city, county or state. See V.T.C.A. Insurance Code, Article 5.44 for duties of State Fire Marshal.

Campus security personnel may be employed by a governing board of each state institution of higher education “for the purpose of carrying out the provisions of this subchapter [E]”— protection of buildings and grounds — and if commissioned as a peace officer one possesses all powers of a peace officer “while on the property under the control and jurisdiction of the institution of higher education or otherwise in the performance of his duties,” V.T.C.A. Education Code, § 51.203. Similarly, the former Board of Control was authorized by old Article 678e, § 7, V.A.C.S. to employ watchmen “for the purpose of carrying out the provisions of this Act” — protection and policing of state buildings and grounds — “and to commission them as peace officers;” as such they were vested with powers of peace officers “while on the areas regulated by this Act or in fresh pursuit of those violating the law in such areas.” Under successor State Purchasing and General Services Commission watchmen are now “security officers.” See Article 601b, § 4.12(g).

Campus security personnel, Board of Control watchmen and, as shall be developed shortly in the text, game management officers commissioned by the Parks and Wildlife Commission were added to Article 2.12 by Acts 1971, 62nd Leg., p. 1116, ch. 246, § 3.

In 1973 the Legislature authorized every governing body of any political subdivision operating a prescribed kind of airport to “establish an airport security force and employ airport security personnel,” any of which the governing body may commission as a peace officer; as amended in 1975, any such commissioned peace officer was vested with rights and duties of any other peace officer “while he is on the property under the control of the airport or in the actual course and scope of his employment,” Article 46g, V.A.C.S.

City parks and recreational facilities are authorized and governed by inter alia Chapter 6 of Title 103, V.A.C.S.; see Article 6080 et seq. Every home rule city is, of course, authorized to provide for police and fire departments, Article 1175, § 27, and specially granted power “to police all parks or grounds...,” id., § 19. In 1975 municipal park and recreational patrolmen and security officers generally were added to Article 2.12, the preceding session having purported to include them when employed by certain cities, see Acts 1973, 63rd Leg., p. 480, ch. 204, § 1.

Security officers of the State Treasurer were added in 1977, when he was directed to employ them “to provide needed security services at the Treasury Department” and allowed to commission them as peace officers. Article 4375, V.A.C.S., as amended.

. For one example, at common law a sheriff has no jurisdiction beyond the boundaries of his county, and the Court has held that notwithstanding his being designated a peace officer and thereby impliedly included with the broad provisions of Article 2.13, in the absence of an arrest warrant pursuant to Article 15.06, V.A.C.C.P., “a sheriff as such is not authorized to make an arrest outside his county,” Henson v. State, 120 Tex.Cr.R. 176, 49 S.W.2d 463, 465 (1932). With respect to city police officers, for another, the Court first found that “Article 999 ... seems to limit the legal authority of peace officers to their own bailiwick,” Weeks v. State, 132 Tex.Cr.R. 524, 106 S.W.2d 275, 276 *940(1937), but a majority later retreated from such a strict proscription when the police officer pursues outside his city one who has committed an offense in his presence while within the city. Minor v. State, 153 Tex.Cr.R. 242, 219 S.W.2d 467, 470, 472 (1949).

. When the commissioner was allowed to employ deputies they too made do with authority to make a warrantless arrest of “any person found by them in the act of violating any of the laws for the protection and propagation of game, wild birds or fish...” Civilly, Article 4018, V.A.C.S. authorized the commissioner and his deputies to “arrest without warrant anyone found violating any of the fish, game or oyster laws of Texas...”