Untitled Texas Attorney General Opinion ( 2009 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
January 14, 2009
The Honorable Bobby Lockhart Opinion No. GA-0690
Bowie County Criminal District Attorney
Post Office Box 3030 Re: Authority of City of Texarkana municipal
Texarkana, Texas 75504 officers under various circumstances
(RQ-0717-GA)
Dear Mr. Lockhart:
You inform us that the Texarkana, Texas Police Department and the Texarkana, Arkansas
Police Department jointly operate a Bi-State Narcotics Task Force and a Metro Swat Team.! In
relation to those units, you·ask questions about the powers that peace officers of Texarkana, Texas
and Texarkana, Arkansas possess. Request Letter at 1-2.
Your questions address two distinct groups: (1) peace officers of the Texarkana, Arkansas
Police Department while in Texas; and (2) peace officers ofthe Texarkana, Texas Police Department
while in Arkansas. Because the Arkansas courts and the Arkansas Attorney General are better suited
to opine on Arkansas law, we decline to comment on your questions to the extent that they implicate
that state's law. 2 We therefore limit this opinion to your questions as they relate to Texas law.
You first ask whether peace officers employed by the Texarkana, Arkansas Police
Department have powers in the State ofTexas outside the territorial limits ofthe City of Texarkana,
Texas, and ifso, how far those powers extend. Article 2. 124(b) ofthe Code of Criminal Procedure
provides:
A commissioned peace officer of a state of the United States of
America adjoining this state, while the .officer is in this state, has
under this subsection the same powers, duties, and immunities as a
peace officer ofthis state who is acting in the discharge of an official
ISee Request Letter at 1 (available at http://www.texasattorneygeneral.gov).
2F ormer Arkansas Attorney General Mike Beebe issued an opinion that addressed questions relating to the arrest
powers that Texarkana, Texas police officers possess while in Texarkana, Arkansas. See Ark. Ope Att'y Gen. 2006-175
(concluding law enforcement officers of Texarkana, Texas have arrest powers in Arkansas under the circumstances
authorized in Ark. Code Ann. § 16-81-115). Likewise here, your questions concerning Texarkana, Texas peace officers
while in Arkansas might be directed to the Arkansas Attorney General for comment.
The Honorable Bobby Lockhart - Page 2 (GA-0690)
duty, but only in a municipality some part of the municipal limits of
which are within one mile ofthe boundary between this state and the
adjoining state and only at a time the peace officer is regularly
assigned to duty in a county, parish, or municipality that adjoins this
state.
TEX. CODE CRIM. PROC. ANN. art. 2.124(b) (Vernon 2005) (emphasis added). Under a plain
language construction of the statute, subsection (b) grants peace officers from an adjoining state
jurisdiction throughout the municipal limits of a municipality that is within one mile of the border
but not beyond those municipal limits. 3 Although Texas municipal peace officers may have
jurisdiction under specific circumstances beyond the municipal limits, article 2.124, subsection (b)
expressly limits the powers of a peace officer from an adjoining state to the municipal limits of the
Texas city and not beyond. 4
The powers granted to peace officers from an adjoining state under subsection (b) exist
regardless of whether the cities on either side of the border have entered into an interlocal
cooperation agreement under chapter 791 of the Government Code, the Interlocal Cooperation Act
(hereafter "the Act"). See generally TEX. CODE CRIM. PROC. ANN. art. 2.124(b) (Vernon 2005); TEx.
GOV'T CODE ANN. §§ 791.001-.033 (Vernon 2004 & Supp. 2008). However, the Act allows local
governments to contract with each other to collectively perform certain governmental functions.
TEX. GOV'T CODE ANN. § 791.011(a) (Vernon Supp. 2008). The Act defines "local government"
to mean a "county, municipality, special district, ... or other political subdivision of this state or
another state." Id. § 791.003(4)(a) (emphasis added). You inform us that, pursuant to the Act, the
cities of Texarkana, Texas and Texarkana, Arkansas have entered into the Interlocal Cooperation
Agreement for Mutual Assistance in Law Enforcement (hereafter "Interlocal Agreement"), an
agreement whereby the peace officers ofeach city can serve as law enforcement officers ofthe .other
city. Under an interlocal cooperation agreement the officers providing law enforcement services are
in fact officers ofthe local government receiving the officers' services. See Tex. Att'y Gen. Ope No.
GA-0189 (2004) at 6 ("[D]eputy sheriffs of one county acting as peace officers in another county
under an interlocal agreement would in fact be officers of the law enforcement authority of the
county receiving the officer's service~.").
3you also question whether subsection (b) means that "neither agency can go beyond" one mile into the
adjoining state. Letter Briefat 4 (available at http://www.texasattorneygenera1.gov). Subsection (b) does not create such
extensive restrictions on peace officers from the adjoining state. The phrase "some part ofthe municipal limits ofwhich
are within one mile" by its terms restricts which cities the statute applies to. TEX. CODE CRIM. PROC. ANN. art. 2. 124(b)
(Vernon 2005); see also TEX. GOV'TCODE ANN. § 311.011(a) (Vernon 2005) (words and phrases shall be read in
context). It does not limit the jurisdiction of peace officers from an adjoining state to within one ~ile of the border.
40ther statutory provisions grant peace officers from adjoining states limited powers while in Texas for specific
reasons. See, e.g., TEX. CODE CRIM. PROC. ANN. art. 2. 124(a) (Vernon 2005); ide art. 14.051(a). Such provisions may
grant jurisdiction broader than article 2.124, subsection (b), and this opinion should not be construed as limiting the
jurisdiction granted through provisions other than subsection (b).
The Honorable Bobby Lockhart - Page 3 (GA-0690)
Thus, when peace officers originally employed by Texarkana, Arkansas serve as law
enforcement officers in Texarkana, Texas pursuant to the Interlocal Agreement, they are considered
law enforcement officers of Texarkana, Texas. See ide As such, they have the same powers and
duties as members ofthe Texarkana, Texas Police Department, subject to any limit~tions created by
the Interlocal Agreement itself. It is therefore necessary to look to the terms of the Interlocal
Agreement to determine the jurisdictional limits of those officers. Because this office does not
construe contract terms, we decline to comment on whether the Interlocal Agreement extends the
jurisdiction for peace officers originally employed by Texarkana, Arkansas while they serve in
Texarkana, Texas pursuant to the agreement. See Tex. Att'y Gen. Ope No. GA-0302 (2005) at 2.
We simply observe that such an agreement could provide jurisdiction for those officers equal to that
of Texarkana, Texas officers.
You also ask whether "peace officers employed by the Texarkana, Arkansas Police
Department have legal authority to use deadly force in the State of Texas while deployed as a part
ofthe Texarkana Metro SWAT Team." Request Letter at 1. You note that article 2.124 ofthe Code
of Criminal Procedure, which addresses the powers of peace officers from an adjoining state, "is
silent on the issue of deadly force." Letter Briefat 4. Although that statute does not expressly allow
an officer from an adjoining state to use deadly force in Texas, it gives an officer from an adjoining
state, who otherwise meets the statutory requirements, "the same powers, duties, and immunities as
a peace officer of this state who is acting in the discharge of an official duty." TEX. CODE CRIM.
PROC. ANN. art. 2. 124(b) (Vernon 2005).
Based on your Letter Brief, it appears that your question arose because of the language of
article 2.124, subsection (a) ofthe Code of Criminal Procedure. See Letter Brief at 4. You suggest
that article "2.124 states that a commissioned police officer from [an] adjoining state has the same
powers, duties, and immunities as a Texas police officer, but then that article sets specificlimits, i.e.
physical custody of an inmate at [a] medical facility; transporting an inmate; regain[ing] physical
custody." Id. However, the "specific limits" that you refer to apply only to the powers granted in
subsection (a), when a peace officer is transporting an inmate to a medical facility in Texas. See
TEX. CODE CRIM. PROC. ANN. art. 2. 124(a) (Vernon 2005). Subsections (a) and (b) of article 2.124
were enacted at different times and for different purposes, and nothing in the statute itself or the
legislative history suggests that the limits on power in subsection (a) apply to the powers granted in
subsection (b).5 Thus, we conclude that under article 2. 124(b) a peace officer from an adjoining
state, who otherwise meets the requirements of that statute, has "the same powers, duties, and
5See Act of May 8, 1995, 74th Leg., R.S., ch. 156, § 1, 1995 Tex. Gen. Laws 1006, 1006-07; HOUSE COMM.
ON PUB. SAFETY, BILL ANALYSIS, Tex. H.B. 1155, 74th Leg., R.S. (1995) (purpose of bill was to "allow commissioned
peace officers of a neighboring state to have the same powers, duties, and immunities as Texas peace officers, but only
while transporting an inmate from a neighboring county to and from a hospital in Texas"); Act ofMay 3, 1999, 76th Leg.,
R.S., ch. 107, § 1,1999 Tex. Gen. Laws 544,544; HOUSECOMM. ON PUB. SAFETY, BILL ANALYSIS, Tex. H.B. 165, 76th
Leg., R.S. (1999) (purpose of bill was to allow "law enforcement agencies in another state to enforce Texas laws in a
municipality which is split between Texas and another state").
The Honorable Bobby Lockhart - Page 4 (GA-0690)
immunities," including the power to use deadly force, "as a peace officer of this state who is acting
in the discharge of an official duty." TEX. CODE CRIM.PROC. ANN. art 2.124(b) (Vernon 2005).6
As discussed above, the powers granted to Texarkana, Arkansas peace officers under article
2.124(b) exist regardless of whether the local governments have entered into an interlocal
cooperation agreement. However, when serving pursuant to the Interlocal Agreement, peace officers
of Texarkana, Arkansas are considered officers of Texarkana, Texas, and they possess the same
authority to use deadly force as members ofthe Texarkana, Texas Police Department, subject to any
limitations created by the Interlocal Agreement. Thus, depending on the specific terms of the
Interlocal Agreement, their authority to use deadly force may be broader than that granted under
article 2. 124(b). Because, our office does not construe contract terms, we decline to comment on
whether the Interlocal Agreement extends the authority ofTexarkana, Arkansas peace officers to use
deadly force beyond the municipal limits of Texarkana, Texas.
6The Legislature has articulated standards regarding the authority ofpeace officers to use deadly force. See TEX.
PENAL CODE ANN. § 9.51(a), (c)-(e), (g) (Vernon 2003). Whether the use of deadly force is authorized in a particular
circumstance is a fact question, and this office does not resolve fact questions in the opinion process. See Granger v.
State, 3 S.W.3d 36,39 (Tex. Crim. App. 1999) (quoting Hayes v. State, 728 S.W.2d 804,808 (Tex. Crim. App. 1987));
Tex. Att'y Gen. Ope No. GA-0620 (2008) at 4-5 (resolution of factual issues not amenable to the opinion process).
The Honorable Bobby Lockhart - Page 5 (GA-0690)
SUMMARY
Article 2.124, subsection (b) of the Texas Code of Criminal
Procedure grants limited powers to officers from an adjoining state
while in Texas in circumstances where the municipal limits of a
municipality are within one mile of the boundary between this state
and the adjoining state. Under that provision, the jurisdiction of
peace officers ofthe Texarkana, Arkansas Police Department extends
to the municipal limits of Texarkana, Texas and not beyond.
Article 2.124(b) also grants those officers from the adjoinin~
state the same powers, duties and immunities as an officer of this
state who is acting in the discharge ofan official duty. Thus, officers
of the Texarkana, Arkansas Police Department, while in Texarkana,
Texas, have the same authority to use deadly force as an officer of
this state.
Under the Interlocal Cooperation Act, when peace officers of
Texarkana, Arkansas are serving as law enforcement officers in
Texarkana, Texas pursuant to the Interlocal Agreement, they are
considered law enforcement officers of Texarkana, Texas. Thus,
when serving pursuant to that agreement, they have the same
jurisdictional limits and authority to use deadly force as officers ofthe
. Texarkana, Texas. Police Department, except as limited by the
Interlocal Cooperation Agreement.
ANDREW WEBER
First Assistant Attorney General
JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee