Untitled Texas Attorney General Opinion ( 1956 )

Honorable Lloyd G. Rust, Jr. Opinion No. S-194
County Attorney
Wharton, Texas Re: Authority of Special Rangers
and Deputy Sheriffs to arrest
and search without warrant for
Dear Mr. Rust: game and fish violations.
Your request for an opinion reads in partas fpllows:
"Can a Special Texas Ranger or Deputy Sheriff arrest without
a warrant anyone found violating any~of the game or fish laws and
can such Special Ranger or Deputy Sheriff search the game bag or
automobile .a&8 person without a warrant when he has reason to 8us-
pect that tiuchgame bag or automobile c&sins game unlawfully killed"?
/
The general statutory provisions governing arrests without ~warrant
are comprised in Articles 212-217 of Vernon's Code of Criminal Procedure.
These statutes provide for arreets without warrant in certain specified eitua-
tions where: (1) a felony offense has been committed, or (2) a breach of the
peace hay occurred. We note that violations of the game and fish laws are mis-
demeanor'offenses, and that such violations do not constitute "breaches of the
public peace," as defined by Articles 439-489 c of Vernon's Penal Code and a6
further defined in the case of Woods v. State, 152 Tex. Crim. 338, 213 S.W.2d
685 (1948).
Our Supreme Court, in the leading case of Heath v. Royd, 141 Tex,
569, 175 S.W.2d 214, 216 (1943), set forth the following rule with respec~tto
arrests without warrant:
"The only circumstances under which one may lawfully be ar-
rested without warrant are: (1) when he commits a felony or a
breach of the peace (a) within the presence or view of the of-
ficer or other person, Art. 212, C.C.P. 1925, or (b) in the pres-
ence or view of a magistrate who verbally orders his arrest, Art,.
213, ibid.; (2) when his arrest may prevent the consequences of
theft, Art, 325, ibid; (3) when a peace officer is informed by a
credible person that a felony offender is about to escape and
there is no time to secure a warrarit,,
Art. 215, ibid.; (It)when
the accused threatens to take the life of another, within the
hearing of a magistrate~;~the~,magistrate
may arrest him, if the
ca8e is one of emergency, Art. 73; ibid.; (5) when he is an es-
caped prisoner, Art. 244, ibid., which is really a retaking and
(6) when the ordinances
not an arrest, Ex parte Sherwood,,.,supra;
of a city or town may authorize such action as to persons found
Honorable Lloyd 0. Runt, Jr., page 2 (S-194)
in euepiciour placee or under circumatancer rearonably q&owLng
that they have been guilty of some felony or breach of the peace
or threaten or are about to commit some offense, Art. 214, ibid.;
and (7) geaerally for any offenoe when the rtatute defining the
name exprerely confern the authority, e.g., highway violationa,
under Art. 803, P.C. 1925; liquor violationa, under Art. 666-30,
Vernon'r Ann. P.C.j unlawfully carrying arma, under Art. 487,
ibid.j rioting, under Art. 98, C.C.P. lp25j loyalty, under Art.
156, P.C. 1925." (~mphanis OUTII)
It haa aleo been held that the power to arrerrtie controlled entirely
by statute, and that the courta of this State will nat enlarge on that power.
DeLeon v. State, 150 Tex. Crim. 391, 201 S.W.2d 816 (1947).
Violations of the game and fish lawn do not fall within the #cope
of Articles 212-217; therefore, peace offickre, an defined in Article 36,
V.C.C.P., do not have any authority to arreet without a warrant a perron
found violating the geme and finh lawn. By leginlative mandate thim authority
1.8vented in the Game and Fish Commission, acting through ita duly-appointed
game wardens. Article 4018, Vernon'e Civil Statutes, and Articles 905 and
978f--3, V.P.C,
The "search without a warrant" aspect of your queatlon in entirely
distinct from and independenk of the question of arrest without a warrant.
Carroll v. United States, 267 U.S. 132 (1925). In this connection Article I,
Section 9, of our Texan Constitution reads 88 followe:
The people ahsll be eecure in their persons, houses, papers
and posseisionr, from all unrerrsonableseizures'or eearchen, aad
no warrant to search e.nyplace , or to seize any person or thing,
shall iesue without describing them as near a6 may be, nor with-
out probable cause, aupported by oath or affirmation." (Emphaeir
O'crS
I
It bar been held that the above-quoted constitutiinualprovision only prohibit6
unrearonable rearches and seizuree. Hughes v. State, 67 Tex. Crim. 333, 149
S.W. 173 (1912). Conflequentlya "reasonable eearch'--which bar been defined
by the courta,as being a nearch upon "probable cause”--does not fall within
the conrtitutionalban. Silver v. State, 110 Tex. Crim. 512, 8 S.W.2d 144 (1928))
Chapin v. State, 107 Tex. Crim. 477, 296S.W. 1095 (19271, containing a rrtrongly
worded dictum on thin point.
The,moet frequently quoted definition of probable cause ie contained
in the cane of Landa v. Obert, 45 Tex. 539 (1876), at page 544. That term ia
there defined a8 "a reasonable gr0u.n.d
of s:~spicion.,
supported by eircumxt~c?a
eufficiently,atrong in themEslyea to warrant a cautiour man in the belief that
the perllonaccured 16 guilty of the offenee with which he 18 charged." See
alro Battle v. State, 105 Tex.Crlm. 568, 290 S.W. 762 (1927)j Odenthal v. State,
106 Tsx.Crlm. 1, 290 S.W. 743 (1927). Clearly the,que&ion of the kxietence
of prbbable cause in any given case ia dependent upon the facte involved) and
Honorable Lloyd G. Rust, Jr., page 3 (S-194)
the fact situations which determine~this question are a8 varied as prosecutions
are numerous. Bullock v. State, 112 Tex.Crlm. 313, 16 ,S.W.2d 1077 (1929)';
Battle v. State, supra.
It is, then, the opinion of this office that peace officers, as de-
fined in Article 36, V.C.C.P., may lawfully search without a warrant a game
bag or automobile suspected of containing game unlawfully killed or taken when
the officere possess facts sufficientto constitute "probable cause." Griffey
va State, 159 Tex.Crlm. 141, 265 S.W.2d 115 (1954), involving the unlawful pos-
session of barbituates; Hobrecht v. St&e, 127 Tex. Crim. 294, 75 S.W.2d 10%
(1934), involving the unlawful possession of,a pistol. Attorney General'6 Opin-
ion No. G-4762 in hereby overruled insofar as it conflicts with the instant
holding concerning the right of peace officerti~tosearch without a warrant for
violations of the 'gameand fish laws. ~
We note that Articles 897 and 923d, V.P.C., expressly confer upon
the Game and Fish Commission, acting through its duly authorized agents, the
power to search without a warrant a game bag or automobile when there is rea-
eon to suspect that such game bag or automobile contains game unlawfully killed
or taken. See also in this connection Phllllps v. State, 159 Tex. Crim. 286,
263 S.W.2d 159 (1953); Renfroe v. State, 140 Tex. Crim. 418, 145 S.W.2d 883 (1940).
.;Webelieve such power is dependent upon the existence of "probable cau,se"a6
discussed above.
Paragraph (5) of Article 4413(U), V.C.S., governs the appointment,
d?ltieband powers of Special Texas Rangers. This paragraph,of the statute reads
86 follows:
"Special Rangers: The Commission shall have authority to ap-
point such number of special rangers as may be deemed advisable,
not to exceed Three Hundred (300) in number; such rangers shall
not have any connection with any Ranger Company or Highway Motor
Patrol, but they shall at all times be subject to the orders of
the Commission and the Governor for special duty to the same ex-
tent as the other law enforcing officers provided for in this
Act; such special rangers, however?;shall not have the authority
to enforce any laws except those designed to protect life and
property, and such rangers are especially denied the authority
to enforce anv laws renulatinn the use of the State highways by
motor truck and motor buses and&her motor vehicles. -Such
rangere``sh``n~t~receive any compensation from the State for
their snrv~&?a:
;,p'`` and
-..-before
---_~. the
..~issuance of
.~ the commi.ssion each
``````-````
such ra 11 enter into a good and sufficient bond executed
by a Surety Company authorized to do business in Texas in the
8um of Twenty-five Hundred ($2,5.OO.OO)Dollars, approved by the
Director, indemnifying all persons against damages accruing aB
a result of any illegal or unlawful acts on the part of such
special ranger. All special ranger commissions shall expire on
January 1st of the odd year after appointment, and the Director
can revoke any special ranger commission at any time for cause,
and such officer shall be designated in the Commission as Spe-
cial Ranger,
Ror.,cratle
:,l.i:yd
G. R-d+, Zr., page 4 (S-194)
"Provideedfurther ,tkstthe Commissian shall net issue more
than teti,comissions to specia1 rangers for employment by any
,oneper&., firm cr corpcratkn at any cne time, except during,
an emergency, .whe.n
ir?the cpkion of the Commission it is nec-
essary in the in5erest of the public justice to permit the em-'
1C.
jment of more than ten." (Emphasis curs)
This office has heretofore ruled that Paragraph (5j of Article
k&,13(11)contemplat,esthe employment of Special Rangers by persons, firms or
corporations for the prctection cf'private property. Attorney General!6 Opin-
i,onNo. O-1951,. A SpectralTexas Ranger is net a peace officer as defined by
Art,icle36, V.C.C.P., and ;cr,se!:uerkly
a Special Ranger is not charged with
the duties cf a peace offlce~. lt is 'thereforethe opinion of this office that
Soecial Texas Rangers have IKEauthor:ty to enforce the,Texas game and fish laws
'bymeans of arrests and searches without warrant.
Peace officers, as defined by Article 36, V.C.C.P.,
have no authority to arrest withclt a warrant for viola-
tiorxscf rhe game and fl.shlaws. h-tides 212-217,v.c.c.P.;
Heath va Bcyd, 141 TCJX. 569, I.75S.W.2d 214,(1943). Peace
officers are c,everthelessauthoriztidto search without a
0f the game and fish laws where the
warrant fcr violat!,or~,s
fact.6'uponwb.ichthe search !s based are sufficient to con-
st:.f'se"prcbabk causea" Cons+.I.tut:.or.of Texas, Article I:,
secti.cn9; Gr!zYey'inState, 159 Tex.frim. lkl, 265 S0W.2d
X5 {;,954)3 E:;F,rs::.Ct
vr State, 27 Tex,Crim. 29k, 75 S.W.2d
1099 {~
1gs ;. A??;r,r:iey
Genepa;.'s@L&on o-062 ,!scverruled
tc,th,eexteritcf conflict herewith.
.APPf?O’nx : Yoyrs 'verytruly,
>L:o'tzl,
Atchison JOI% BEN SEEPPER
Reviewer Attorney Generai
D. S. Meredith, Zr.
Reviewer
L. W. Gray
Special Revie~wer Assistant
::<.,:a
Ben Shlt:pperd.
AttS:?neyGeneral