Untitled Texas Attorney General Opinion ( 1939 )

OFFICE OF THE ATTORNEY GENERAL OFTEXAS
AUSTIN
Tsxas State forks Domd
Austin, Texas
Gentlemsn: Attention: Hon. ‘SillXaan Richardson,
Chief Glerk '!
,^.~ ,,,,
opiniod. Fo. mo-s71gK -.-~‘---..
Ret Authority of keepers ot State Farks
to arrestor eject for~disburbing the
peaoe and bo arrest or eject,a porsou
disobeying rules and reGu.lafionsot
ParKBoard I
This will aoknov&ebge~rsoelpt or your request
that this Deparfunentgive yoults opinion relative to
the authoritp.of keepers, ~apgod.utedby the Texas State
Parka Board,,bysuthority of~.+rtSqle 6069, Revised Civil
Statutes of Texas&lqa5, and‘-its,>answer to certain
questions:,whloh v~.hava.for convenience restated as
r0ii0~63: \ 1,
>\, Alld *ih‘B, ketaper arrest a yareon
i'"~%stur&xg the peaoe In a State Park, and take
,/' , ``,hfio:
before',?Just&e of the Feoce?
,,' ." / ,'
i ((' ,& Vou&,a keeper be justified in using
\ \, for? to.tject from the Ferk suoh a disturber
'x. \,,,of
th? poaae?
'\ ,:'
\
'\, 5. Could suah a keeper arrest e person for
&il?g or using intorlaating bevarages in a
state park in violation of a rule or rules, pro-
mulgated by the board, prohibiting same2
4. Could such a keoper,eject from the park,
a person found violating tha'rules or rules re-
ferred to in r:uestfonZ~above?
The power aad duties of the State.Parks Board
are set out in Artioles 8007-6077, inclualve, and Article
. .,
Texas State Parks Eoard. Pape 2
608le, sections 3-5, 2,.C. s. of Texss, 1925. The
authority for hiring a keeper is contained in the
second peraercrphof Article 6009, 3upr2, -hioh we
quote:
*It shall further be tho duty of sold
3on::dto 3rranC;ofor or employ a keGper in
each oi‘the Stste i;arksunder the control
of Yeld Stuta Perks Eoard, .xho shall be
clothed with all the powers and authority
of s peace officer of the county, for the
purposes of oaring for snd proteoting the
property wlthin aald parks.*
The last olause in the above quoted paragraph
suggests the question, whathur it should be interpreted
as llmitihg the exercise of'the keeper's powers and
authority as a peaoe officer to "caring for and pro-
teoting the property within asi. Farits",or whether It
aerely explains why the Legislature sm fi?.to provide
for a keeper. In our opinion, the latter interpretation
is proper. This view io etrenathened by the probabll-
ity that large nwnbers of people will congragate In
the parks from tine to time, %ho should be given some
protection, in addition to that normally furnished by
the aounty peaoe otficera. xl'the-clause In question
were interpreted to so liait the keeper's powers and
authority es a peaoe offlaer, he would have no more
authority to protect persons seeklug rest, recreation,
and pleasure in the parks, than would any other private
citizen.
The~powers and duties of a county peace offiaer
are ooinoident with those of sheriff'and constable. Code
of Criminal Pro&, 1925, Art. 36. They are those set
out in the Constitution and Statutes of this state, sub-
ject, of aourse, to the construction plsoed upon them by
the aourts.
My question as to the oonstStuti.onalltyof a
statute clothing others than thosa set out in the Constl-
tution priththe powersol s peace ofricer, is settled by
the case of heff Y. i;l;in,270 2. .;.ii73 (xrit of error
rcfussd), .&eroin the court said:
"There is no provision of the Zonstl-
tution expressly denying to the Leclslature
the power and authority to cr,euteother
agencies than those noned in the Constl-
tutisn for the prcaervation of lm and~the
Texas State Parks Eoard, ?aga 3
SUppr8SsiOIl3f Cri3l8. There is nothing
in the Constitution that by legitimate im-
plication forbids other agenciee %han those
named for upholding and enforcing law and
preserving order and peace."
Coning now to your first ;uestlon, it is our
opinion that the Zeeper of a state park. not only aan
arrest a person for disturbing the peeoe in the Dark,
but that it is his dut to do so; and further, &at h8
Oalltak8 the p8rSOn-Ii-$
e ore a Justice Of th8 P8fiO8iOr trial.
The qUOt8d al-tic18giV8S the k88&W the POlrerS
and authority of a oounty peaoe 0rri08r but doss not 8x-
PreSSly inpOe UpOn him the dUti0S Of s pea08 OfricsL -.
However, the article whioh provides t 8 pOW8rS Or a
'peeoe offioer, Code.of Grin. eroo. 1923, Arti 39, also
Imposes upon him certain duties, and WC thinkthey sre
corollaries, one of the other. These dUti8a bposed on
a1.l p9808 OffiO-erS Would, therefore, b8 impOS8d OR a
keeper. obviously, the pUlZ9OS8of the LegialatIlrein
oonferring the poW8I7S and authority 0r .a peace olfloer
On the keeper of 8 Stat8 park was to aid in Oaring for and
protecting the property within the pa~rksand to proteot
those persons ohoosing to come there for reoreation. Can
it be Said that the failure of the Legielature.~o~,erpress-
ly Impose the dUti8S or a peace orrioar on such a keeper
has the Srf8Ot of making it optional with him, either to
arrest or not to arrest, for's violation of the law wlth-
in the park? To ask the question Is to answer It.
With reference t0 your SeOOnd question, it iS
our opinion that the keeper of a state park would not be
authorized to US8 rorce to ejeot a m from the -park
ror disturbing the peaoe. His olcar duty in suah an in-
etanoe would be to arrest the violator. He would be au-
thorized to us8 suoh rOrQ8 es ressonably necessary to
eff8Ot the arrest, and no more. Skidmore V. State, 43
Tex. 93. The authority of a peace OffiCSr t0 use for08
obtalne only during the course of an arrest, and the use
of force to eject e disturber of the peace trom the park
not as a part of an arzcst, rould bo without the limits
or that privilege. Hudley V. Jtatx?,01 Tez.,Zrlm. 28&J.
.Ts
39, 194 S. !J.160. Ghould S keeper attempt to forcefully
eject a person, not as a part of an arrest, he xould be
guilty or an assault and battery. 2kidmorc v. State,
supra.
%ex:2aStste l,arks?oard, Taqo 4
‘The‘I‘ox~c
3tst.eTarks Zo:.!
:d 91s the right
to promulgate rules and regulations uncer Artiolo
5070e, ::. 7. 2. or TexS8, 1925, pslji?ch
abbe
quote in
part:
“Sac. 1. The ZtrstaPark Poerd is hcrcby
:mthorlzed to grent oonoession in &ate ?arks
and to make oonoession oontrscts for any cause-
WY. beach drive or othar iimrovements in con-
nebtion with Stat8 Park sites, wherever feasi-
ble. The IfACnfeiI
tall 88m8d by the Stcte Parks
Board shall. when oolleotod be plaozd In the
ststc Tr8aslry. The Poerd xay mke suoh rules
and r*maletions for the carrying out of c
kat antithe la 8 or this State relative to
State Packs, as ft awayd8CIU neoesscry not In
oonrllot with law.* (zmpiibJE+l ours).
Rut, has the keeper the right to make an arrest :‘orthe
violation of the rules an suoh, th-t is, if x right to
arrest k0ula sxist exoept for the rule, 00Uia the rule
alons oonfsr that right on the keeper, or any pedce offl-
uer? Clearly, a violation of a rule of the Roard alone
OennOt to the pr8diaat8 for an ulT8at.. There mustbtr
some other authorlty& the eot must have been made a penal
offense by statute. &ma1 Code, 192S, hrticles l-3.
:eqa?d to a keeper’s maklng an arrest
Bi%~h-
for a violation of the rule prohibiting the posaeaeion
of~an lntoxloctlng Betasago in a state perk, It Is our
opinion, and you are so advfecd, that he aould not le-
gelly do ao beoausa lpere,
uae of intoxicating liquor is
not a orime in Texas; the manner in whioh l,tla sl:d or
the aotion end oonduot of a person aoccmpang?ng or re-
aulting lram suoh ~8% mey or zay not OCnStitUt8 the
bs.sisfor an ervest. The Ler~lsleturre has not seen fit to
uake mere use Of intoxioeting beVera@ 3 pMal Off%RS8v
nor 'ma it mde it a ~ennl offense to violate cartein
rulea end r,~nulatlonsof the Yt*>teCa:,ksEoerd. I4af or4
an set Is one vhlch will justify an arrest :n Texoa. it
xust have besn lladcc r:enalcrf3w8 am E ;unIshr?lent
p70viba, 5~ 3t..3ttm3. ?e:nal ..:a:~, 1$:!5, iL~t!cles l-3;
Kerley v. St2te, 89 .:'ex.:r. 'T::-,p.
199, 230 ‘. -. 163.
Jw(~ar5ln~the authority of a ks*~or to arrest
2 yrson 5or 3eiiin.r intoxfcoting teuerl~qe3 :A e sty-:to
park, hs n:Fht ri>vw.?uch>$uthorlty,but i:would hot be
bcc?use it constituted a violation or tho rule promul-
Cated by the Eoard. It would be because it saa prohlbl-
ted by 3me provision of tha Texas Liquor Control .:&at.,
Title II, :ha?twr 8, ,;rtlcloe606 and 667, Penal -ode,
1325, or other statutory provision prohlbltlng sme.
IP a peraon vere cau6ht in a state park violsting the
statutory lm Ath regard to the sale of.intoxicating
liquor, Y keeper would have the ~XW right to arrest as
would any peaae offloer.
.
*.egusn hem to note thnt the rule of the
State Parks Roard reR3rdlhg the ml0 of intoxicants in
the parks is not nholly ineffective. ,it doas deiine
the policy of the Board,wlth regurd to the sale of in-
toxloants in state parks. For example, the oonoesaionalrws
ogarating as they do under contracts 4th the ?.?oard,~rould
be subjeot to such rules and regulations, if msdaoondi-
tlons in their contracts. artlole 60708, b, aupra.
Ylthout a,right to sell on the pra?nises- desoribed in their
applloatloa, they could cot get a permit from the Texas
Liquor Control Eoard. They, like any other person selling
1Lquor in the garks, without auoh a permit would be subjeot
to errest. /.rtiole666, supra.
Then, in snsmr to your third question, ft la
our opinion that the keeper ot a stste park oannot le-
gally arrest a person for vlolatlnC the rule promulheted
by the Fonrd prchibiting the able OS liquor in state
parks, as buoh, but oan legally srrest a person when a
violation of the rule also constitutes a violation of the
lar reguletlnf:the srle intoxicating bevercpes Fen-
erolly.
Tour fourth question has been sns*ered under
:!uestionatwo and three. You did not use the term force
in your :curth Question but *uedo not think that would
altar cur ~As,.er a3 the aord eject, au us& in this
iAstaAC9, connotr?sthat such zeana till1ba used 33 na-
cesssry to aocomplish a physIci ejection. IhiS, to lq,
36:ms fdrae, ilot verbal persuaalon. ~3len ( ~asent?liAg
that gcumean 3jeotion by ioroe, it ?a our opinion
tkiztthe ko,sperar a state Fork cermot ,l-r~:lly eject
a prson therefrom for violating the Emrb*a rule
prohibitinp the s::loor uae of lntoxioatl~fibeveracos
in the ~33cicfor the reason3 riven in ``3;:er t.2 .pestion
numbel. two.
In this oonnectiott,however, yl'e wish to dimot
your ettsatlon to the laot that ?-henusinv the tern, "3~
arrest*, we retwr to a 'le+l'* mrsst. 'The1sz.eof Tex-a
expressly zmke legal arrests of on ofrdader xlthout
warrant, In oertain oaeea only, e.-g. hhon the otisnae
is oomnltted 1A the presence or xlthln the VBW oi the
offioer, if the-offense Is one alsamd RS -2 falouy, or
as BA ~'offenaae@IiAst the public 3enae*. (zt. 212
C.C.2. 1933, st.seq.) iiksrlae, on 0f:tioercay arrest,
rftbout warmnt, on tbe rerbol order of a mgiatrcte
IS the felony or breuch OS the peeae has been mm-
mittcd "In the presence or within the view" of auob
aa~iatrota. There are other exoeptlona xhere an srreet
nit&out warrant Is gemltted (auoh ea tar violation
of the lame rwpulatfng motor oehlales, f~lona shout to
esoqae, persons carrying ille& firaerm, sto.), but
my erreat without warrant to tm leeal auat UOIP, vitbfn
the acop of tha exoeptiona to the general rule. Ctber-
wise, the officer, to lm protested, ffiust procure a we+
rant. See nuthe%;ford YQ. state, Z83 2. :;.$12; Lynob
vs. 8tate. 57 1. it. 1120; '-fi.lllsaara. 3+xte, 14.25. ;::*
900.
e ::ust that this satisfsatorily azxa=?r8 :our
inquiry.
Yours very truly
CXXZ'::&SF TlfX.S