Untitled Texas Attorney General Opinion ( 1957 )

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TaE:Arrroxc~EY GENERAL
OFTEXAS
A~USTIN 11. TEXAS
WILL WILSON
A-l-rORNEY GENEXXAL
August 8, 19.57
Honorable Wm. J. Burke opinion NO. W-128.
Executive Director
State Board of Control Re: Authorlty of the Capitol
Capitol Station Guards to enforce park-
Austin, Texas ing and other regulations
within the Capitol
Dear Hr. Burke: 5rounds.
You have requested our opinion as to whether or
not Capitol Guards have auth0rit.y to issue parking tickets
and/or arrest violators of the spe8.d and traffic laus, and
those guilty of abuse and malicious destruction and/or theft
of State property in the event such persons are apprehended
by the Capitol Guards,
It is axiomatic that in a government in which the
duties of all officers, as well as their powers, are defined
by written law, no power should he exercised unless author-
ized by law.
We have been unable to find any Constitutional or
Statutory provisions clothing the Capitol Guards with police
enforcement powers. Article 36, Vernon's Code of Criminal
Procedure,providea:
"The following are 'peace officers': the
sheriff and his deputies, aonstable, the ,mar-
shal~or policemen of an incorporated town or
city, the officers, non-commissloned officers
and privates of the State ranger force, and
any private person specially appointed to exe-
cute criminal process."
Capitol Guards are not directly, or impliedly, mentioned,
Article 37, Vernon's Code of Criminal Procedure,
sets forth the duties and pouera of "peace officers.*
Article I.@, Vernon18 Code of Criminal Procedure,
establishes sheriffs as 'Conservator of the peace" and sets
forth his duties as such.
Highway patrolmen are clothed wit&the powers and
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Honorable Wm. J. Burke, page 2 (``-128)
duties of "peace officers" and rangers. Acts 45th Leg., 1937,
oh. 373, p. 772.
Your attention is called to Article 212, Vernon's
Code of Criminal Procedure, which provides:
"A peace officer or any other person, may,
without warrant, arrest an offender when the
offense is committed in his presence or within
his view, if the offense is one classed as a
felony, or as an 'offense against the public
peace,'" (Emphasis ours)
Article 325, V.C.C.P., is also germane to your prob-
lem, end provides as follows:
"All persons have a right to prevent the
consequences of theft by seizing any personal
property which has been stolen, and bringing
it, with the supposed offender, if he can be
taken, before a magistrate for examination, or
delivering the same to a peace officer for that
purpose. To justify such seizure, there must,
however, be reasonable ground to suppose the
property to be stolen, and the seizure must be
openly made and the proceedings had without
delay.'"
A private person's right to arrest in all cases in
which'stolen property is found in the possession of the thief,
is clearly given by this article, Morris v. Kaslinq, 79 Tex.
l&l., 15 S.W. 226 (1.890); and the owner or lawful custodian of
property may arrest a thief without warrant, if done openly
and without delay, being officer de lure, for time being.
Henderson v. U. S, Fidelity & Gua%ty Co., 298 S.W. 404(Tex.
Comm.App. 1927), rehearing denied, 10 S.W.2d 534 (Tex.Comtn.
App. 1928).
Under this article6 in order to furnish "reasonable
grounds" or "probable cause, the person making arrest must
have information or knowledge amounting to more than mere sus-
picion. Adams v. State, 137 Tex. Crim. 43, 128 S.W.2d 41
(1939).
From the aforementioned statutes, it is apparent
that those'who may perform the duties necessary to enforce the
laws of the State of Texas have been specifically authorized
to do so by legislative enactment.
Honorable Wm. J. Burke, 'page 3 (``-128)
You ,are advised that the Capitol Guards do not
have authority to issue parking tickets and/or arrest viola-
tors of the speed and traffic laws snd those guilty of abuse
and malicious destruction, except in those instances where
such offense constitutes a felony or an offense against the
public peace, and the offense is committed in the guard's
presence or within his view.
You are advised that, under Article 325. V.C.C.P.,
the Capitol Guards have authority to arrest any person com-
mitting a theft, or any person in whose possession is found
stolen property, so long as the guard has reasonable ground
to suppose that the property is stolen, and the arrest is
made openly and the thief is taken before a magistrate for
examination, or delivered to a peace officer, without delay.
You are advised that it is within the province of
the Legislature, by statutory enactment, to clothe the Cepi-
to1 Guards with the authority to properly enforce the regule-
tions laid down by the State Board of Control pertaining to
the Capitol Building and Capitol grounds.
SUMMARY
The Capitol Guards do not have authority to
issue parking tickets and/or arrest violators of
the speed and traffic laws and those guilty of
abuse and malicious destruction, except in those
instances where such offense constitutes a felony
or an offense against the public peace, and the
offense is committed in the guard's presence or
within his view. .If made in accordance with Arti-
cle 325, v.c.c.P., the Capitol Guards may arrest
any person in order+ to prevent the consequences
of theft. The Legislature may, by statutory en-
actment, clothed the Capitol Guards with the eu-
thority to properly enforce the regulations laid
down by the State Board of Control pertaining to
the Capitol Building and Capitol Grounds.
Very truly yours,
WILL WILSON
Attorney General of Texas
Marvin R. Thomas, Jr.
MRT:wb Assistant
Honorable Wm. J. Burke, page 4 (WW-lZ8)
APPROVED:
OPINION COMMITTEE
H. Grady Chandler, Chairman
W. V. Geppert
Wallace Finfrock
B. H. Timmins, Jr.
REVIEMED FOR THE ATTORNEY GENERAL
BY: Geo 0 P. Blackburn