Untitled Texas Attorney General Opinion ( 1968 )

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October 11, 1968
Honorable W. C. Lindsey Opinion No. M-285
Criminal District Attorney
Jefferson County Courthouse Re: Authority of Sheriff and
Beaumont, Texas Constables to serve Criminal
and Civil process in com-
mercial plants or aboard
Dear Mr. Lindsey: vessels.
You request the opinion of this office on the following
questions:
"1. Does a Constable or a Sheriff have the authority
to go aboard a vessel which is tied up to a dock
within his county to serve criminal or civil pro-
, cess, if the Captain of said vessel refuses to
allow him to come aboard?" you request an answer
to this question as to both merchant and naval
vessels.
"2* Does a Constable or a Sheriff have the authority to
go into an enclosed commercial plant, such as a re-
finery, to serve criminal or civil process, if com-
pany personnel refuses to allow him past the enclosure?
The enclosure referred to in sedond question is
usually a Hurricane fence with a gate patrolled by
company guards through which all traffic passes."
"3. If it is determined that Sheriffs and Constables have
authority to go into plants or aboard vessels, 'then;
what are the penalties for those who interfere and
attempt to prevent him from serving the process.”
The first question entails a consideration of state jurisdiction
over both foreign and domestic merchant and naval vessels.
State jurisdiction over domestic merchant and naval vessels
is limited, but not excluded by the United States Constitution and
federal laws pursuant thereto.
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Honorable W. C. Lindsey, Page 2 (M-285)
As to domestic merchant vessels, Article III, Section'2,
Clause 1 of the Mited States Constitution provides "that the
judicial power shall extend . . .to all cask of admiralty and
maritime jurisdiction. . ."
Congress has exercised this power over admiralty as found
in 28 U.S.C.A. S1333:
"The district courts shall have original
jurisdiction, exclusive of the Courts of the
State of:
"(1) Any civil case of admiralty or maritime
jurisdiction, saving to suitors in all cases all
other remedies to which they are otherwise entitled."
However, as stated in 2 Am.Jur.2d, Admiralty, S7, page
724:
"The paramount power of Congress, although it
excludes interference by state legislation with
its exercise, is merely a limitation on the power
of the states. There is a broad recognition of
the authority of the states to create rights and
liabilities with respect to conduct within their
borders, where the state action does not run
counter to federal laws or the essential features
of exclusive federal jurisdiction. On the whole,
it may be said that where the particular maritime
subject is national in character, only Congress
can legislate, but where the subject is local the
states may legislate so long as their legislation
is not inconsistent with valid federal legislation
and does not interfere with the proper harmony or
uniformity of federal law in its international or
interstate operation. Thus, a state may legislate
,on such matters as liens for claims arising from
repairs of vessels within the ports of the state,
port regulations and safety in local harbors, and
torts committed by vessels within such ports. A
, state may also levy a business license or sales
tax on transactions conducted on vessels operated
on a river within the boundaries of the state."
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Honorable W. C. Lindsey, Page 3 (M-285)
In accord, 2 C.J.S., Admiralty,,S6, p. 70; Toomer v. Southwest
Casualty Company, 231 F. Supp. 542 (S.D. Galveston Div., 1964)
d Fuentes v. Gulf Coast Dredging Co., 54 F.2d 69 (C. C.A. 5th
EL., 1931).
Federal courts have affirmed the constitutionality of
state non-resident watercraft statutes, and in Franklin v. Tomlinson
158 F.Supp 850, (Ill, 1957);'the fiederal court upheld
=EP-
iur 8 iction over a Delaware Corooration where service of Drocess
had been on the Illinois Secretaky of State. See also coyie v. Pope
& Talbot, Inc., 207 F. Supp. 685 (E.D, Pa. 1962).
State jurisdiction over domestic naval vessels is limited
by Article 1, Section 8, of the United States Constitution, which
empowers Congress to "provide for the common defense", "to provide
and maintain a Navy", "to make rules for the government and regula-
tion of the land and naval forces", and "to make all laws which
shall be necessary and proper for carrying into execution the
foregoing powess. a e'
The above enumerated Dower and the doctrine of federal
supremacy, as declared in M&lloch v. Maryland, 14'U.S. (4 Wheat.)
316, 4 L-Ed. 579 (1819), prevent service of civil and criminal
process aboard a United States naval vessel over the objection of
its Captain,
Congress has provided in the Uniform Code of Military Justice,
10 U.S.C.A. S814, the appropriate method by which a state may assert
its jurisdiction (see Annotation 135 A.L.R. 11) over persons in
military service:
"(a) Under such regulations as the Secretary
concerned may prescribe, a member of the armed
forces accused of anoffense against civil
.:; authority may be delivered upon request to the
civil authority for trial."
The basic law governing the question of jurisdictional immunity
for foreign merchant and naval vessels was laid down by'chief Justice
Marshall in The Schooner Exchange v. McFadden, 11 U.S. (7 Cranch)
287 (1812% :
"A clear distinction is to be drawn between the
rights accorded to private individuals or private
trading vessels, and those accorded to public armed
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Honorable W. C. Lindsey, Page 4 (M-285)
ships which constitute a part of the military force
of the nation.
"When private individuals of one nation spread
themselves through another as business or caprice
may direct, mingling indiscriminately with the inhab-
itants of that other, or when merchant vessels enter
for the purposes of trade , it would be obviously in-
convenient and dangerous to society, and would subject
the laws to continual infraction and the government
to degradation, if such individuals or merchants did
not owe temporary and local allegiance, and were not
amenable to the jurisdiction of the country. Nor can
the foreign sovereign have any motive for wishing
such exemption. His subjects thus passing into
foreign countries, are not employed by him, nor
are,they engaged in national pursuits. Consequently,
there are powerful motives for not exempting
persons of this description and no one motive
for requiring it. The implied license, therefore,
under which they enter, can never be construed to
grant such exemption."
But where a vessel is used for commercial or private activity
by a foreign government, the courts defer to a determination by the
United States Department of State as to whether an immunity..will...,
be recognized. Sovereign immunity is a political or diplomatic
problem rather than a legal one. Immunity is now "recognized with
respect to sovereign or public acts (jure imperii) of a state but
not with regard to the private acts (jure gestionis)." Ocean Transport
Co. v. Government of Republic of Ivory Coast, 269 F. Supp. 703, 705
(1967).
In accord with the basic principle of foreign merchant vessels
being amenable to State jurisdiction, a federal court in Tardiff v.
Bank Line, 127 F. Supp. 945, (La., 19541, refused to set aside service
on the Louisiana Secretary of State under the state..watercraftstatute.
The Court affirmed federal court jurisdiction over a British corpora-
tion in an action under state law for the death of a Louisiana
resident from'injuries sustained on the defendant's steamship 'while
at a dock in Louisiana.
As to naval vessels, Chief Justice Marshall stated a different
rule in The Schooner Exchange case, supra:
Honorable W. C. Lindsey, Page 5 (M-285)
"But in all respects different is the situation
of a public armed ship. She constitutes a part of
the military force of her nation; acts under the
immediate and direct command of the sovereign; is
employed by him in national objects. He has many
powerful motives for preventing those objects from
being defeated by the interference of a foreign
state. Such interference cannot take place without
affecting his power and his dignity. The implied
license, therefore, under which such vessel enters
a friendly port, may reasonably be construed, and,
it seems to the court, ought to be construed, as
containing an exemption from the jurisdiction of
the sovereign, within whose territory she claims
the rights of hospitality."
Because the State of Texas lacks jurisdiction it is clear
that a Constable or Sheriff does not have authority to go aboard
a foreign naval vessel to serve criminal or civil process. Nor
may such process be served upon a merchant vessel operated by
a foreign sovereign if the Department of State recognizes an
immunity for it.
As to other merchant vessels, both domestic and foreign,
there are no such inherent prohibitions unless the law 'of the
State of Texas is such as to forbid service of process if the
captain refuses permission to-board.
Article 1407a, V.A.C.S. states as follows:.
"Art. 1407a. Entry on boat, vessel, ship or other
watercraft without consent of owner.
"Section 1. It shall be unlawful for any person,
without the consent of the owner or other person in
charge thereof, to enter upon the boat, vessel, ship.
or other watercraft of another, whether or not such
watercraft is documented or required to be numbered
or registered by or under the laws of the United States
or of the State of Texas or of any other state, nation,
country, or political entity whatsoever, while such
boat, vessel, ship, or other watercraft is on any of
the 'coastal waters' as defined in Section 3(a),
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Honorable W. C. Lindsey, Page 6 (M-285)
Chapter 340, Acts of the 58th Legislature, 1963, or
on any channel, turning basin, or other body of water
whatsoever in the State of Texas, and whether or not
such boat, vessel, ship, or other watercraft be docked
in passage, or otherwise.
"Section 2. Any violation of Section 1 of this Act
shall constitute a misdemeanor , and for the first con-
viction of such a violation the punishment shall be by
a fine of not more than $200, but for a second or sub-
sequent conviction the punishment shall be by fine of
not less than $50 or more than $SOO,,or by confinement
in the county jail for not more than three months, or
by both such fine and imprisonment.
"Section 3. Any person found upon the boat, vessel,
ship, or other watercraft of any kind or character of
another under circumstances which reasonably indicate
that he entered upon it without the consent of the
owner or other person in charge thereof shall be subject
to.arrest by any city policeman, constable, sherif,f,
highway patrolman, ranger, game warden, or any other
officer in the State of Texas, or by the deputy of any
of them, without a warrant, and any such peace officer
is hereby empowered to make such an arrest.'
Section 3 of Article 1407a indicates that it was not the
intent of the legislature to include peace officers within the
purview of the "any persons" of Section 1. To hold otherwise would
be to ascribe to the legislature the intent to create a sanctuary
for those who would frustrate orderly processes of law enforcement
and to empower peace officers to arrest such persons but to
deny them entry to exercise that power. ..
The authority of a Constable or Sheriff to serve civil or
criminal process aboard domestic or foreign merchant vessels
over the objection of the Captain is the same as in an enclosed
commercial plant--the subject of your second question.
With reference to service of civil process, it in recognized
that an officer has no right to breakinto or otherwise forcibly
enter a dwelling house.
"In the eye of the law, it is better that the
execution of the process should be delayed, and
that the officer should remain without, waiting,
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Honorable W. C. Lindsey, Page ~7 (M-285)
a favorable opportunity for the accomplishment
of his purpose, than that he should enter with
force and violence, against the wishes and pro-
tests of the householder, thus tending to breaches
of the peace and the destruction of the security
and tranquility of the home by exposing it to
attack from without. The rule is not intended
to secure immunity against service of process
but rather to afford protection to the home and
family." 42 Am.Jur., Process, 38, pB 34;
Hillman v. Edwards! 66 S.W. 788 (Tex.Civ.App. 1902,
no writ).
A pertinent statement of the law is found in 52 Tex. Jur.2d,
Sheriffs, Constables, etc., Set, 30, as follows:
"In the absence of statutes specially authorizing
it, an officer may not break open an outer door nor-
forcibly enter the dwelling house of a debtor
for the purpose of a necessary levy. Such an entry
in law, a trespass; the officer loses the
;Ztection of the writ, and he is no longer invested
with the right to use reasonable force in executing
it. This rule is applicable though the officer had .. '
previously entered through an unlocked door.and,
return'edmerely for the purpose,of completing
the levy...Rut if lawful means are employed to ..
effect the seizure, the officer,,mayuse force
sufficient to overcome the force used,by the defen-
dant in attempting to resist the levy. In the
event of such action the presumption is that any
force used was necessary for theEperformance of the'
official duty, and the burden is on the plaintiff
to show the contrary.'
A "home and family" enjoy a status of "tranquility"
and "protection" which is not extended to a non-dwelling, such
as an enclosed commercial plant and its employees or a merchant
vessel and its crew. The treatise, Freeman on Execution, S256 -
Of the Right to Break Inner and Outer Door to Make a Levy, p. 813,
quotes Stearnes v. Vincent, 50 Mich. 209; 45 Am.Rep. 37, for, the
proposition that force may be used on business premise8 to serve ,,
civil process:
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Honorable W. C. Lindsey, Page 8 (M-288):
"A building may be occupied partly as a dwelling
and partly for business purposes, as where the
occupant conducts a store for the sale of merchandise
in a room fitted up for that purpose, and resides
with his family in other parts of the building. In
such cases the whole building is not regarded as
a dwelling; and even though the two parts are
approached through a common door, this door may,
be broken for the purpose of seizing goods in the
store."
The treatise continues with a quote from Haggerty v. Wilber,
16 Johns. 288; 8 Am. Dec. 321:
"'The privilege which the law allows to a man's
habitation, and which precludes the sheriff from
entering, unless the outer door be open, either ~to
arrest the party or to take his goods on execution,
does not extend to a store or barn disconnected
from the dwelling-house, and forming no part of
the curtilage.' It has always been claimed that
the refusal of the law to permit an officer to
break into the debtor's dwelling to levy an exeoution II
arises not from its wish to shield the property,
but solely because of its desire to preserve the
sanctity of the dwelling. If this claim is well
founded, we should suppose that the dwelling
would be equally preserved from intrusion when the
writ is against a stranger, as well as when against
the owner. But this supposition is not supported
by the authorities. An officer may enter the house
of A for the purpose of~levying.,uponB's goods which
are therein. A forcible entry must not be made
until a demand to open the doors has been met with..
a refusal to comply. And the right to enter depends
on the,fact of B's goods being in the house. If
they are not there'the officer cannot justify his "
entry. He is a trespasser. When the officer has '
once lawfully entered the outer door, the sanctity
of the dwelling, as regards that writ under which
the entry was made, is dettroyed. The door cannot
now be closed upon him.
The Texas Code of Criminal Procedura expressly provides
for the use of force or violence in making arrests and in executing
search warrants:
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Honorable W. C. Lindsey, Page 9 (M-285)
Art.. 15.24 - "In making an arrest, all reasonable
means are permitted to be used to effectit. No
greater force, however, shall be resorted to than
is necessary to secure the arrest and detention of
the accused."
Art. 15.25 -"'In case of felony, the officer may
break down the door of any house for the purpose of
making an arrest, if he be refused admittance after
giving notice of his authority and'purpose."
Art. 18.17 - "In the execution of a search warrant,
the officer may call to his aid any number of citi-
zens in his county, who shall be bound to aid in'the
execution of the same. If he is resisted in the exe-
cution of the warrant, he may use such force as is
necessary to overcome the resistance, but no greater."
Art. 18.18 - "In the execution of a search warrant,
the officer may break down a door or a window of any
house which he is ordered to search, if he cannot
effect an entrance by other less violent means; but
when the warrant issues only for the purpose of din-,
covering property stolen or otherwise obtained in
violation of the penal law, without designating any
particular place where it is supposed to be concealed,
no such authority is given to the officer executing
the same."
You are therefore advised that a Constable or Sheriff, after
properly identifying himself and stating the purpose of his visit,
has authority to go aboard a domestic or foreign merchant vessel
over the objection of its Captain or to enter an enclosed com-
mercial plant for the purpose of serving criminal or civil process.
Your third question asks about the penalties applicable
to those who interfere and attempt to prevent a Constable or
Sheriff from serving process.
Article 388, V.A.P.C., provides a penalty for opposing the ,,
arrest of another~for felony.
"Whoever shall wilfully oppose or resist an
officer in executing, or attempting to execute
any lawful warrant for the arrest of another per-
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Honorable W. C. Lindsey, Page 10 (M-285)
son in a felony case shall be confined in the
penitentiary not less than two nor more than
five years. If ,armsbe used in such resistance,
he shall be confined in the penitentiary not
less than two nor more than seven years."
Article 339, V.A.P.C., states the penalty for opposing
arrest of another for a misdemeanor.
"If any person shall wilfully oppose or resist
an officer in executing or attempting to execute
any lawful warrant for the arrest of another per-
son in a misdemeanor case, or in arresting or
attempting to arrest any person without a warrant,
where the law authorizes or requires the arrest
to be made without a warrant, he shall be fined
not less than twenty-five nor more than five
hundred dollars, and if arms be used, be fined
not less than fifty nor more than one thousand
dollars."
Article 342, V.A.P.C., conditions imposition of the above
two penalties on the process being executed in a legal manner.
"To render a person guilty of any offense included
within the meaning of articles 338 and 339 the warrant
or process must be executed or its execution attempted
in a legal manner."
Article 336, V.A.P.C., sets forth the fine for preventing
execution of civil process by means not,amounting to actual
resistance.
"Whoever shall prevent or defeat the execution of
any process in a civil cause, by any means not amount-
ing to actual resistance, but which are calculated to
prevent the execution of such process, shall be fined
not exceeding five hundred dollars: evading the execu-
tion of such process is not an offense under this article."
Those who would hinder a law enforcement officer might also
become subject to Article 77 of the Penal Code. It states in part
that "an accessory is one who, knowing that an offense has been
committed, conceals the offender , or gives him any other aid in.
order that he may evade an arrest or trial or the execution of his
sentence." Under Article 79 of the penal Code, Dacceesories shall
be punished by the infliction of the lowest penalty to which the
principal would be liable."
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Honorable W. C. Lindsey, Page 11 (M-285)
SUMMARY
A Constable or Sheriff has no authority to serve
criminal or civil process on board any foreign naval
vessel or any foreign merchant vessel where the United
States Department of State recognizes a sovereign im-
munity, However, absence such recognition, a Constable
or Sheriff does have authority to enter a domestic or
foreign merchant vessel without the consent of the Captain
to serve civil or criminal process; those denying such
consent subject themselves to certain penalties and
fines. A Con&table or Sheriff has no authority to serve
process on board a United States naval vessel; the
persons upon whom such process is to be served;may be
delivered to local authorities in acdord with federal
law,
A Constable or Sheriff does have authority to serve
criminal or civil process in an enclosed commercial
plant; any person denying him permission to enter
subjects himself to certain penalties and fines.
truly yours,
A
Prepared by Charles T. Rose
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
Xerns Taylor, Co-Chairman
Robert Lattimore
Fisher Tyler
Ralph Rash
Malcolm Quick
EXECUTIVE ASSISTANT
A. J. Carubbi, Jr.