Untitled Texas Attorney General Opinion ( 1943 )


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    Honorable Ray 'winder
    County Attorney
    Cooke County
    Gainesville, Texas
    Dear Sir:                    OpiniT;JNk  O-219
    Be:               8 exas peace of-
    fioers'havz authority to make
    arrests outside of Texas,
    .(2) Whether county court has
    jurisditition to entertain a
    proceeding to enforce forfeit-'
    ure of authomobile seized out-
    side of ,Texas.
    In your recent letter requesting the opinion of the
    Attorney General of Texas, y ou outline the following pertinent
    facts:
    Certain peace officers of Cooke County, Texas, hav-,
    ing probable cause for searching an au&amnbll8 believed by
    them to be unlawfully transportina,intoxicating liquor in and
    through Cooke County, a fldry area," sighted the automobile
    being driven in Cooke County. The officers, in their pursuit,
    followed the automobile out of Cooke County, across the State
    line, and into the State of Oklahoma, where they were success
    ful in stopping the automobile. Upon searching the vehicle
    in Oklahoma a large quantity of intoxicating liqour was found,
    The driver was arrested by the Texas officers, and, together
    with the amtomobile and liqunr, returned to Cooke County. The
    automobile, though moving from Texas to Oklahoma with planetary
    speed, as reflected In your letter was kept in view of the
    pursuing Texas officers, the view being sufficiently close
    enough at times to permit the lodging of several bullets in
    the rear end of the fleeing vehicle from the well-aimed gun
    of the Texas officers. Upon his return to Cooke County, the
    driver of the automobile, referred to in your letter as "a
    negro named 'ackson," voluntarily entered a plea of guilty to
    L   --
    Honorable Ray Winder, page 2 05199
    the charge of unlawful transportation of intoxicating liquor
    in Cooke County. Based upon the forgoing facts, you submit
    the following questions:
    "First:   Did the officers have the right to
    arrest-son      without warrant?
    "Second: Did the officers have the right to
    pursue the fugitive into the State of Oklahoma and
    arrest him there?
    nThird: If the foregoing questions are an-
    swered-e       negative, does the County Court of
    Cooke County have, proper jurisdiction to proceed
    under Art. 1, Sec. /$+ of the Texas State Liquor Con-
    .trol Act to enforce forfeiture of the automobile
    driven by the fugitive, in view of his final con-
    vistion upon the charge of unlawfully transporting
    liqour?"
    The answer to your first two questions must nes%s-
    sarily depend upon the laws of Oklahoma, which laws :,ecannot
    be called .upon to construe.
    "An offense against the law is the justifi-
    cation for an arrest, and since the laws of one
    sovereignty have no extra jurisdictional operation,
    an offense against the laws of one state do not au-
    thorize sn arrest therefor in another state, except
    when and as authorized by the laws of the latter
    state, as the legality of an arrest depends on the
    law of the state where it is made." Volume 6,
    Corpus Juris Qecundum, page 609.
    In Texas a sheriff's authority to make an arrest is
    confined to the limits of his own county. .Llttle v. Rich, 
    55 Tex. Civ. App. 326
    , 118 9. W. 1077; Weeks vI State, 132 Tex.
    Grim. 524 106 5. w. (2d) 275; Box V. Oliver, (clv. App.)   43
    5. W. (2dj 979; Hooper v. Deisher, (Civ. App.) 113 S" W. (2d)
    966. A sheriff may not search an automobile in Texas outside
    his own county for he has only the authority of a rivate
    citizen in such case. Henson v. State, 120 Grim. iiep. 176,
    49 s. w. (2d) 463.
    In McLean v. Mississippi ex rel Roy, 96 Red. (2d)
    741, in which case a writ of certiorari was denied by the
    -   -
    Honorable Ray Winder, page     3 O-5199
    Supreme Court of the    United States (59 Sup. Ct. 84) it wan
    said:
    "The state of Mississippi has no power to
    extend the authority of its sheriffs into another
    state and we will not suppose she has made the
    attempt."
    In the McLean 
    case, supra
    , -It waa~held that a re-
    covery      could not be had on in official bond of a Mississippi
    peace officer for events taking place in the State of Tennessee
    to which state the Mississippi sheriff took a person arrested
    in Louisiana for a crime allegedly committed in Mississippi,
    since the officer had neither officer nor color of office as
    a Mississippi      sheriff while in another state where Mississippi
    laws were not of force.
    Where we will not attempt to state the law relative
    to arrest in Oklahoma your attention is directed to the case
    of Sturat v. Mayberry, 
    195 Okla. 13
    , 
    321 P. 491
    , by the
    Supreme Court of Oklahoma, wherein it was held that an ordi-
    nary warrant of arrest issued in one state may hot be execut-
    ed in another atate, as it has no validity beyond the boundaries
    of the state by whose authority it was issued, Beoause of the
    fact that this case was decided by the highest court of Okla-
    homa it i.8not without_persuegiye Imp&.-                  4
    From the authorities thus reviewed the general rule
    deductibld appears to be that an officer of Texas is without
    authority to make an arrest in another state either with or
    without a warrant,
    To 'say however that an officer of Texas does not
    have authority to make an arrest in Oklahoma, it does not nec-
    essarily follow that a conviction cannot be had as p re8~yZ.f;
    of
    such unauthorized arrest and subsequent search and 6eie.W.
    This now brings us to your third question as to
    whether the county court of Cooke County has jurisdiction to
    entertain a proceeding under Article 1 of Section 44 of the
    Texas Liqour Control Act to enforce the forfeiture of the
    automobile seized by the Texas officer in the State of Okla-
    homa.
    --
    Honorable Ray Winder, page 4 o-5199
    Section 44 of Article 1 of our Texas Liqu~            Control
    Aot provides in part as follows:
    "It is further provided that if any. D D
    automobile. e 0 is used for the transportation
    of any illicit beverage. . .such vehicle to-
    gether with all such beverages. Q *shall be
    seized. . .by any peace officer who skall ar-
    rest any person in charge there. . .
    The statute then continues to outline the procedure to be fol-
    lowed in enforcing the forfeiture which results from the auto-
    mobile being used in the commission of the unlawful act. See
    our Opinion No. O-5021 wherein the procedure for enforcing
    such a forfeiture is discussed.
    From what has theretofore been said and in view of
    our Opinion No* O-5021 and the particular fncts and circum-
    stances as outlined in your letter, it is the opinion of this
    department that the county court of Cooke County, Texas, has
    jurisdiction to entertain a proceeding to enforce the for-
    feiture of the particular automobile seized by the Texas of-~
    ficers in Oklahoma.
    Yours very truly
    ATTORNEY GENERAL OF TEXAS
    ii+'          E. G. Pharr
    Assistant
    EGPedb/PAM
    APPROVED MAY 21, 1943
    OERALD   c.   MANN
    ATTORNEY GENERAL OF TEXAS
    APPROVED OPINION COMMITTEE
    BY BWH, CHAIRMAN
    

Document Info

Docket Number: O-5199

Judges: Gerald Mann

Filed Date: 7/2/1943

Precedential Status: Precedential

Modified Date: 2/18/2017