Untitled Texas Attorney General Opinion ( 2000 )

February 7,200O
The Honorable Eddie Lucia, Jr. Opinion No. JC-0177
Chair, Committee on Border Affairs
Texas State Senate Re: Whether the term “national park” as used in article
P.O. Box 12068 2.122, Code of Criminal Procedure, refers to any and
Austin, Texas 7871 l-2068 all units of National Park System (RQ-OlOl-JC)
Dear Senator Lucia:
You ask this office the effect of certain legislation you authored which was passed during
the 76th Legislature. In particular, your concern is whether Senate Bill 965’ grants to law
enforcement officers of the National Park Service powers of arrest, search, and seizure with respect
to state law offenses committed within the boundaries of any and all units of the National Park
System located in the State of Texas. We conclude that, while the language of Senate Bill 965 is
somewhat unclear and may be susceptible ofthe Park Service’s interpretation that the bill “does not
apply to all units of the national parks system in Texas,” Letter from David A. Watts, Deputy
Associate Solicitor, Division ofParks and Wildlife, Office ofthe Solicitor, United States Department
of the Interior, to Elizabeth Robinson, Chair, Opinion Committee, Office of the Attorney General
(Oct. 14, 1999) (on file with Opinion Committee) [hereinafter “Interior Letter”), the legislative
history ofthe statute indicates that the measure was intended to apply to all such units. Accordingly,
we read Senate Bill 965 as a grant of authority to law enforcement officers of the National Park
Service to make arrests and to have powers of search and seizure with respect to state law offenses
within the boundaries of any and all units of the National Park System located in Texas, however
such units may be described.
Senate Bill 965 amended article 2.122 of the Code of Criminal Procedure by adding
subsection (d), which reads:
A commissioned law enforcement officer of the National Park
Service is not a peace officer under the laws of this state, except that
the officer has the powers of arrest, search. and seizure as to any
offense under the laws of this state committed within the boundaries
of a national park or national recreation area. In this subsection,
“national park or national recreation area” means a national park or
-
‘Act ofMay 22,1999,76th Leg., R.S., ch. 628,§ 1,1999 Tex. Gen. Laws 31X6,3187 (codified at Twc. CODE
GRIM. Pmt. ANN. art. 2.122(d)).
The Honorable Eddie Lucia, Jr. - Page 2 (X-0177)
national recreation area included in the National Park System as
defined by 16 U.S.C. Section It(a).
TEX. CODE GRIM. PROC.ANN. art. 2.122(d) (Vernon Supp. 2000) (emphasis added).
A question arises as to the applicability of this definition because, while 16 U.S.C. Section
1c(a) is itself a “catch-all” provision including in its scope all units of the National Park System, the
terms “national park” and “national recreation area” are but two of the multiple designations used
by the Park System and do not themselves have the same inclusive effect. Accordingly, the scope
of the grant of authority appears ambiguous.
As its author, you explained the intent ofthis legislation at a public hearing before the Senate
Criminal Justice Committee on April 14, 1999:
A new national park in Cameron County, which is located in the
southern tip of Texas, is being developed, and unfortunately the
park’s grounds are frequented by people intent on drinking and
loitering. Although rangers of the National Park Service are on duty
to protect the park, they are not on the list of approved law
enforcement officials with powers of arrest in Texas. This legislation
would add commissioned rangers of the National Park Service to the
approved list of federal agents with powers of arrest, search, and
seizure. We do have a committee amendment to consider that would
confine those powers to within the park areas. The amendment
would address what the committee substitute would do-which would
be to confine those powers within the park area and not outside.
Hearings on Tex. S.B. 965 Before the Senate Comm. on Crim. Justice, 76th Leg., R.S.
(Apr. 14, 1999) (statement of Senator Eddie Lucia, Jr.) (audio tape available from Senate Staff
Services).
The digest contained in the various bill analyses of Senate Bill 965 is to the same effect as
your testimony:
Currently, certain federal criminal investigators have powers of arrest
and powers of search and seizure as to felony offenses only under the
laws of the State of Texas. The list of law enforcement authorities
includes a variety of United States agencies with jurisdiction in
Texas. This bill would add commissioned law enforcement officers
of the National Park Service to the approved list of federal agents
with powers of arrest and search and seizures.
The Honorable Eddie Lucia, Jr. - Page 3 (K-0177)
SENATECOMM.ONCRIM. JUSTICE,BILLANALYSIS,Tex. Comm. SubstituteS.B. 965,76thLeg.,R.S.
(1999).
Senate Bill 965 refers to 16 U.S.C. Section lc(a) which provides that the National Park
System “shall include any area of land and water now or hereafter administered by the Secretary of
the Interior through the National Park Service for park, monument, historic, parkway, recreational,
or other purposes.” In our view it is clear that the reference to section lc(a) was intended, as you
indicate in your letter, “to capture all current and any future designations created by Congress under
this specific title.” Letter from Honorable Eddie Lucia, Jr., Texas State Senator, to Honorable
John Comyn, Attorney General of Texas, at 2 (Aug. 11, 1999) (on tile with Opinion Committee).
Nevertheless, it is the view of the Solicitor’s Office of the Interior Department (the
“Department”) that the language of Senate Bill 965 does not successfully manifest this intent. In the
Department’s view, “although the intention may have been otherwise, the plain language of article
2.122 is insufficient to cover all units of the national park system which exist in Texas.” Interior
Letter, supra, at 2.
The Department’s position is presented rather succinctly in one paragraph:
Article 2.122 of the Texas Criminal Code apparently references 16
U.S.C 5 lc(a) in an effort to clarify that national park or national
recreation area is a shorthand way of referencing any unit of the
national park system. However, as written, article 2.1[22] does not
accomplish that purpose. It refers to national park or national
recreation area as defined by lc(a). However, section lc(a) does not
define national park or national recreation area; it defines national
park system.
Id. (emphasis in original).
We do not disagree with the Department that the sentence in question might have been more
felicitously worded if, for example, it had defined the areas in which jurisdiction was being granted
as any unit included in the National Park System as that system is defined by 16 U.S.C. Section
lc(a). This office, like the courts, cannot make a statute “apply to cases to which it does not apply,
without assuming functions that pertain solely to the legislative department of the government.”
Turner v. Cross, 18 S.W. 578, 579 (1892). Accordingly, we cannot simply revise a statute by fiat.
However, we are charged as well not to treat an enactment of the Texas Legislature as a nullity,
which would be the consequence of the Department’s interpretation of the definition. See Baker v.
Bell Helicopter Textron, Inc., 985 S.W.2d 272, 275 (Tex. App.-Fort Worth 1999, pet. denied)
(“[T]he legislature is not presumed to have done a foolish or useless thing.“); see also Boykin Y.
State, 818 S.W.2d 782,785 (Tex. Crim. App. 1991) (“where applicationofa statute’splainlanguage
would lead to absurd consequences that the Legislature could not possibly have intended, we should
not apply the language literally. When used in the proper manner, this narrow exception to the plain
The Honorable Eddie Lucia, Jr. - Page 4 (JC-0177)
meaning rule does not intrude on the lawmaking powers of the legislative branch, but rather
demonstrates respect for that branch, which we assume would not act in an absurd way.“).
As the Department points out, pursuant to 16 U.S.C., section la-6, and the Assimilative
Crimes Act, 18 U.S.C., sections 7 and 13, “authority already exists for National Park Service law
enforcement officers to enforce state laws within the boundaries of a unit of the national park
system” when the federal government exercises either exclusive or concurrentjurisdiction. Interior
Letter, supra, at 1. Accordingly, a grant of such authority in those circumstances would be
unnecessary. The grant is necessary only if the Park Service’s interest in the land in question is
solely proprietary, which we are given to understand is the case with the Palo Alto Battlefield site
and perhaps six other such sites in Texas. Telephone conversation with K. C. Becker, Office ofthe
Solicitor, Department ofthe Interior (Dec., 1999). Yet, given the Department’s view that such sites
are not necessarily included within the definition in article 2.122(d) of the Code of Criminal
Procedure, SenateBill 965’s grant ofjurisdictionwould be either supererogatoryorvoid. We cannot
so construe the statute.
Accordingly we construe Senate Bill 965 as a grant of the powers of arrest, search, and
seizure to enforce Texas law to commissioned National Park Service law enforcement officers within
the boundaries of any and all units ofthe National Park System, however denominated, in this state.
We note, however, that the legislative history also makes clear that this jurisdictional grant is at most
concurrent, and is limited to the enumerated powers given to such Park Service law enforcement
personnel within the boundaries of the park units. No further jurisdiction than this has, by this
statute. been ceded to the United States.
The Honorable Eddie Lucia, Jr. - Page 5 (JC-0177)
SUMMARY
Article 2.122(d), Code of Criminal Procedure, as enacted by
Senate Bill 965, 76th Legislature, is a grant of the powers of arrest,
search, and seizure to enforce Texas law to commissioned National
Park Service law enforcement officers within the boundaries of any
and all units of the National Park System, however denominated, in
this state.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK RENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
James E. Tourtelott
Assistant Attorney General - Opinion Committee