Untitled Texas Attorney General Opinion ( 1943 )

Honorable P. W,.Minter
County Attorney
Jim Hogg County
Hebbronville, Texas
Dear Sir: Opinion No. O-5484
Re: Whether peace officer may arrest
one 'on suspicion" and hold such
person for 72 hours thereafter
pending investigation.
Together with your request for an opinion of this de-
partment on the above stated question, you have submitted
a most exhaustive brief which has been of invaluable as-
sistance to us in the preparation of this opinion.
The constitution of Texas, Article I, Section 9, pro-
tects the citizen from an arrest on mere suspicion. Lacy
v. State, 7 Tex. App. 41. ,Moore v. State, 107 Cr. Rep. 24,
294 s. w. 550.
By Article 215 of the Code of Criminal Procedure, it
is provlded that an arrest of a person without a warrant for
an offense not committed in the presence of the arresting
officer, may only be made "where it is shown by satisfactory
proof to a peace officer, upon the representation of a credi-
ble person," that a felony has been committed, that the of-
fender is about to escape, and that there is not sufficient
time to procure a warrant, and unless such facts exist an
arrest for a felony not committed in the presence of an of-
ficer is illegal. An arrest under this statute is not au-
thorized on mere suspicion that a felony has been committed.
It is only where satisfactory proof is made to the officer
by a credible person, under the circumstances set forth
in the statute that an arrest may be made. Such "satisfac-
tory proof" excludes the idea of "suspicion."
In McBeath v. Campbell, et al, 12 S.W. (2d) 118, it
was held by the Supreme Court of Texas, in a suit for damages
Honorable P. W, Minter - Page 2
against a sheriff for false arrest and false imprisonment
that where there was no proof that the person arrested had
committed a felony or an offense against the public peace
in the presence of the arresting officer, or that satis-
factory proof was made that a felony had been committed
and that the person arrested was about to escape, the arrest
and imprisonment without a warrant constituted false impri-
sonment under the Code of Criminal Procedure, 1925,,Arti-
cles 212, 213 and 215, especially when the person arrested
was not taken immediately before a magistrate as required by
Article 217, Code of Criminal Procedure.
"Suspicion" is neither a felony nor a breach
of the peace in Texas. We have been unable to find a statute
denouncing it or a higher court decision affirming a con-
viction for such. The decisions affirming judgments against
peace officers for arresting and imprisoning persons on sus-
picion have, however, not escaped our attention.
In view of the foregoing, you are respectfully
advised that it is,the opinion of this department that no
peace officer has authority to arrest or imprison any person,
for any length of time on suspicion that such person has com-
mi,ttedsome criminal offense.
Yours very truly
ATTORNEYGENERAL OF TEXAS
BY E. G. Pharr
Assistant
EGP:db:bt
Approved Aug. 12, 1943
Gerald C. Mann
Attorney General of Texas
Approved Opinion Committee By RWF, Chairman