Untitled Texas Attorney General Opinion ( 1951 )

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October 5, 1951
Hon. Homer Garrison, Jr., Director
Department of Public Safety
Camp Mabry
Austin, Texas Opinion No. V-1300
Re: The right of Texas Rangers
and other Texas peace offi-
cers to enter Big Bend
National Park to lnvesti-
gate alleged violations of
Texas Penal Laws.
Dear Colonel Garrison:
You have asked our advice concerning the pro-
priety of Texas Rangers and other Texas peace officers
entering Big Bend National Park for the purpose of detect-
ing and investigating possible crimes against the laws of
the State of Texas. You are particularly concerned with
the question of the authority of such officers to make in-
vestlgations within the boundaries of the park in view of
the cession by Texas of jurisdiction over the park to the
United States for national park purposes.
The deed of cession was executed on December 30,
1943, and expressly provides that the State of Texas does
"hereby cede to the United States of America exclusive ju-
risdiction over the above described tracts or parcels of
land" with certain exceptions with respect to service of
civil and criminal processes, the levying, assessing, and
collecting of certain taxes, and reserving to the people
residing in the park the right to vote at elections wlth-
in Brewster County.
Immediate interest in the questions presented
is occasioned by the mysterious disappearance of a Texas
citizen In the vicinity of the park under circumstances
suggesting the propriety of a thorough investigation to
determine the circumstances of the disappearance and the
possibility of criminal acts having been committed against
a Texas citizenand the laws of the State of Texas. YOU
state that the circumstances of the case have been brought
.3:
I . .
Eon. Homer Garrison, Jr., page 2 (v-1300)
to your attention with the request that you take steps
to Investigate the matter. Because of certain evidence
found within the boundaries of the park, it is necessary
for the Texas peace officers to go into the park In order
properly to carry.on their investigation.
Because of the deed of cession above mentioned,
a question has arisen in your mind as to whether State
officers should assume the investigation inside the bound-
aries of the park and as to the duty of Texas peace offi-
cers to conduct such investigation within such boundaries.
Particularly, you desire to know whether Texas peace of-
ficers have the authority to enter the boundaries of the
Big Bend National Park and there conduct an investigation
for the purpose of ascertaining whether an alleged crime
against the laws of the State of Texas actually occurred,
and if so the place where the crime was committed.
The Big Bend National Park Is located wholly
within the boundaries of the State of Texas and more par-
ticularly within the boundaries of Brewster County, Texas.
We know of no Federal law or regulation pertaining to the
operation or government of a national park which would
categorically prevent such a criminal investigation by
State officers. It is reasonable to~assume that no stat-
ute, rule, or policy of the Federal Government applicable
to the maintenance of national parks is intended to pre-
vent a State agency from ferreting out violations of the
State law or from entering the park for,that purpose.
Conflicts of jurisdiction, whether political or
judicial, can arise only In connection with specific fac-
tual situations wherein conflicting claims In the name of
one or the other of the governments are involved. Recon-
ciliation of such conflicts Involves examination of the
law relating to the particular claims and the facts on
which they are based. Questions as to what officers may
arrest and detain prisoners to the exclusion of others
are likewise dependent on the basis of the arrest and
the facts surrounding and leading up to the arrest. The
jurisdiction of courts to hear charges of crime may de-
pend on the place where the crime or any part thereof
was committed, which cannot be determined until after an
investigation is made to determine those matters.
This latter statement Is clearly Illustrated
in the case of Lasher v. State, 17 S.W. 1064 (Tex. App.
Hon. Homer Garrison, Jr., page 3 (V-1300)
1891), in which the defendant was tried In the State court
for commlttlng the act of forgery In Fort McIntosh. The
Federal Government had been ceded exclusive jurisdiction
to the land comprising Fort McIntosh with the State re-
taining concurrent jurisdiction only so far as was neces-
sary for all process, civil or criminal, issued under the
authority of the State or of any of the courts or judicial
officers thereof, to be executed by the proper officers
of theState on any person amenable to the same within the
limits of the land so ceded. The Court in Its origin21
opinion, reversed and dismissed the prosecution, saying:
,I. . . In Corn. v. Clary, 8 mass. 72, it
was held that 'the courts of the commonwealth
cannot take cognizance of offenses committed
upon lands In the town of Springfield which
have been purchased by the United States for
the purpose of erecting arsenals, etc., to
which the consent of the commonwealth was
granted,' etc., and that decision has subse-
quently been adopted and followed in the cir-
cult court of the United States. u. s. v.
Cornell, 2 Mason, 60. And In U. S. v. Davis,
~nM;s;;~S:``,O;t,was held that 2 reservation
concurrent jurisdiction' to
serve state processes, civil and criminal,
ln'the ceded place, does not exclude the ex-
clusive legislation or exclusive jurisdiction
of the United States over the ceded place. It
merely operates as a condition of the grant.
Crimes committed in such localities are with-
in the jurlsdlction of the United States courts,
and, under the express provisions of the United
States statutes, are made liable to and receive
the same punishment as the laws of the state In
which such forts, dock-yards, navy-yards, arse-
nals, armories, or magazines, or other place
ceded as aforesaid is situated provide for in
like offenses when committed within the boundary
of any county of such state. In other words,
the crimes are triable in the courts of the
United States, but are punished as Is provided
by the state law. . . ."
On motion for rehearing the court set aside its
judgment of dismissal and remanded the case, holding:
Hon. Homer Garrison, Jr., page 4 (V-1300)
"The reason for this action is that the
indictment charges an offense committed in
Webb county. The evidence showing that it
was committed Inside of Ft. McIntosh Is cir-
cumstantial. It is suggested by the asslst-
ant attorney general that possibly the state
on another trial might be able to show that
it was in fact committed in Webb county, but
outside the limits of Ft. McIntosh. In view
of the possibility that such might be the
case, judgment will be rendered reversing
the case, and remanding it for another trial
In the lower court. Motion for rehearing
granted, judgment reversed, and cause re-
manded."
In remanding the case, the Court in effect said
that before the Court can decide the case It must know
where the offense occurred, and this can o-be deter-
mined by an 1nvestlgatGn of the locales where cir=ifiir
stances tend to show the offense occurred.
-
We cannot, therefore, categorically define the
authority of Texas Rangers or peace officers in general
terms applicable to any and all situations which might
arise Involving the territory of Big Bend National Park.
It Is our opinion, however, that Texas officers, acting
peacefully, may enter Big Bend National Park for the pur-
pose of determining whether a crime has been committed
over which the State has jurisdiction.
In Count of Alleghen v. Mcclung, 53 Pa. 482
~In8``~,s;;txpIosl& occurred w:thln a Federal arsenal
D The exclusive jurisdiction over the arse-
nal had been ceded by the State to the Federal Govern-
ment, but the State had retained the right of concurrent
jurisdiction for the service of civil and criminal pro-
cess. McClung , a coroner in Pennsylvania, investigated
the deaths occurring from a blast in the arsenal. He
sued the county of Allegheny for his fee covering the
investigation. The county defended on the ground that
he had no right to hold an lnquisltion within the arse-
nal grounds, the jurisdiction of the Government of the
United States being exclusive within those grounds. In
allowing McClung compensation, the Court said:
!I. . . It would not, I repeat, be doing
great violence to the language of the proviso
to hold the official acts of so important a
Hon. Homer Garrison, Jr., page 5 (V-1300)
public agent, inquiring for the whole body of
the Commonwealth Into a suspected crime, as
embraced within the purview of the enactment;
but It is unnecessary in this case to resort
to any strained or doubtful Interpretation,
for whatever were the exclusive rights of the
general government, they had not been claimed
or a~sserted. No Act of Congress had forbidden
the State to send Its appropriate agent to in-
vestigate the cause of a great public calamity,
and no government official had kept him out of
the grounds. Nor Is the Federal Government, or
any one for it, complaining of the invasion of
its exclusive Jurisdiction. The coroner's pres-
ence and proceedings were attended with the im-
olied if not the exvress sanction of both gov-
ernments, and were demanded by the exigencies
of the occasion." 1-s supplied.)
We cannot believe that cession by Texas and ac-
ceptance by the United States of the park were intended
to create artificial barriers to such activities. The
park is not a sanctuary for criminals nor a hiding place
for evidence of their crimes.
SUMMARY
Texas peace officers may enter Big Bend
National Park for the purpose of determining
whether a crime has been committed over which
the State has jurisdiction.
APPROVED: Yours very truly,
Ned McDaniel PRICE DANIEL
State Affairs Division Attorney General
Jesse P. Luton, Jr.
Reviewing Assistant
BY -/dk-&nt
Charles D. Mathews Milton Richardson
First Assistant Assistant
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