Untitled Texas Attorney General Opinion

R-158
OFFICE OF
THE ATTORNEY GENERAL
AUSTIIV,TEXAS
PRICE DANIEL
.4+tcmNFzGEXlmAL June 2, 1947
Honorable Homer Carrlson, Jr., Dlreotor,
Texas Department of Pub110 Safety,
Camp Mabry ,
Auatln 9, Taxes.
Opinion No. V-229
Re: Authority of State
Highway Patrolman
to make arrests
aboard ships in
Texas ports under
oertaln oondltiona.
Dear Sir:
Your request for an opinion la as follows:
“Please advise the authority or a Taxes
Highway Patrolman to make an arrest under the
following conditions:
“A person oommlts a misdemeanorwithin
sight of a Patrolman. Before the person can
be apprehended he goes aboard a ship tlylng
the flag of this oountry, which ship 1s tied
up to a dook In the Houston ship ohannel.
Can the Patrolman go aboard the ship and make
the arrest? Would there be any difference if
the offe’nsacommittedwas a felony? Would it
be neoessary ror the Patrolman to secure a
warrant OS arrest before going aboard the ship,
even though he was in pursuit of the person
committing the violation when that person want
aboard the ship? should the ship be tlying the
flag of a toreign country, would this make any
diff%renca in the arrest prooadure?
nAsauma that a Texas Highway Patrolman
~BonorableHomer Garrison, Jr. - Page 2
has a misdemeanorwarrant for a person who
is aboard a ship, can the Patrolman serve
the warrant on the ship? Can he serve a
felony warrant on the ship, either flying
the flag of this country or the flag of a
foreign country? Would it make any differ-
ence if the ship was anchored in the chan-
nel and not tied up at the dock?"
Artiole 212 of Vernon's Code of CrimjnalProce-
dure reads as follows:
"A peace officer or any other person,
may, without warrant, arrest an offender
when the offense.Is committed in his prea-
ence or within his view, if the offense is
one classed as a felony, or as an 'offense
against the public peaoe.lw
Article 215 of Vernon's Code of Criminal Proce-
dure provides:
"Where It is shown by satisfactory
proof to a peace officer, upon the repre-
sentation of a credible person, that a
felony has been committed,and that the of-
fender is about to escape, so that there Is
no time to procure a warrant, suoh peace of-
ficer may, without warrant, pursue.and arrest
the aocused.n
Article 216 of Vernon's Code of Criminal Prooe-
dura provides:
"In each case enumeratedwhere arrests
may be lawfully uade without warrant, the of-
ficer or person &king the arrest is justified
in adopting all the measures which.he might
adopt in cases of arrest under warrant."
Article 37 of Vernon's Code of Criminal Proce-
dure reads:
"It is the duty of every peaoa officer
to preserve the peace within his jurisdiction.
To effect this purpose.,he shall use all lSW-
ful means, He shall, inevery case where he
is authorized by the provisions of this Code,
Interfere without warrant to prevent or sup-
press crime. He shall execute all lawful
Honorable Homer Garrison, Jr. - Page 3
process issued to him by any magistrate or
oourt. He shall give notice to some magis-
trate of all offenses committedwithin his
juriadlotion,.whareha has good reason to
believe therehas been a violation of the
penal law. He shall arrest offenderswith-
out warrant in every case where he is au-
thorized by law, in order that they may be
taken before the proper magistrate or court
and be tried."
In addition to oertain other powers granted to
the Texas Highway Patrol by Article 4413 (12), V. C. S., the
officerswere further clothed with all of the powers and au-
thority given to members of the Taxes Ranger Force.
Section (4) of Article 4413 (ll), V. C. S., in
speaking of the Ranger force provides:
"The officers shall be clothed with
all the powers of peace officers, and shall
aid in the execution of the laws."
Assuming the ships In question to be merchant
ships and not warships of our Navy or of a foreign power,
we will answer your inquiries on that premise.
Wheaton's Elements of InternationalLaw, Sixth
Edition, at page 151, reads as follows:
"Accordingto the judgment of the Su-
preme Court of the United States, where, with-
out treaty, the ports of a nation are open to
the public and private ships of a friendly
power, whose subjects have also liberty, with-
out special license, to enter the country for
business or amusement,a clear distinctionwas
to be drawn between the rights accorded to prl-
vate individuals,orprivate trading vessels?
and those accorded to public armed ships which
constitutea part of the military force of the
nation.
"When private individualsof one nation
spread themselvesthrough another as business
or caprice may direct, mingling lndlscriminate-
ly with the inhabitantsof that other; or when
merchant vessels enter for the purposes Of trade,
it would be obviously inconvenientand dangerous
Honorable Homer Garrison, Jr. - Page 4
to society, and would subject the laws to con-
tinual infraction,and the government to de-
gradation, if such individualsdid not owe
temporary and local allegiance,and were not
amenable to the jurisdictionof the country.
Nor can the foreign sovereignhave any motive
for wishing such exemption. His subjects,
then, passing into foreign countries,are not
employed by him, nor are they engaged in na-
tional pursuits. Consequentlythere are power-
ful motives for not exempting persons of this
description from the jurisdictionof the coun-
try in which they are found, and no motive for
requiring it. The implied license, therefore,
under which they enter, can never be construed
to grant such exemption.
" . . .
"Upon these principles,by the unanimous
oonsent of nations, a foreigner is amenable to
the laws of the place; but certainly, in prac-
tice, nations have not yet asserted their jurls-
diction over the public armed ships of a for-
eign sovereign, entering a port open for their
r0c0pt10n.*
It therefore follows that merchant ships of a
friendly power entering ports of this State are in the same
category as merchant ships of the United States in such
ports, and If peace officers are allowed to go aboard United
States ships to make arrests, they would be so authorized in
the case of merchant ships of a foreign nation in the absence
of treaties to the contrary.
The case of Xx Part6 Ponzi, 290 S.W. 170, in-
volved the arrest of a person aboard an Italian merchant
ship, at the port of New Orleans by a deputy sheriff Of
Texas who returned to Texas with the prisoner. Although
the Texas deputy sheriff did not actually go aboard the
ship to make the arrest, but by an arrangementwith the
second officer had the prisoner sent ashore where the ar-
rest was made, the Texas Court of Criminal Appeals held
that a private ship, entering a foreign jurisdiction,be-
comes subject to the laws and control of the country visit-
ed, in the absence of treaty stipulationsto the ContlgrY,
and any crime committed there may be punished by 10001 laws.
Under the authority of the above cited StakUteS
Honorable Homer Garrison, Jr. - Page 5
and the case of Bx Part6 Ponzi, It is the opinion of this
department that if a person commits a misdemeanor,which
Is an offense against the public peace, or a felony, with-
in the sight of a Highway Patrolman, and goes aboard a
merchant ship of the United States or any foreign power,
the patrolman has the authority to go aboard the ship to
make the arrest without a warrant, if said patrolmanwas
in "fresh pursuit" of the offender. It is also the opin-
ion of this departmentthat a Highway Patrolman may serve
either a misdemeanor or felony warrant on a United States
merchant ship or a merchant ship of a foreign power that
is In a Texas port. The fact that the ship is anchored
In the channel or "in the stream" Is of no consequence.
It should be noted, however, that this au-
thority does not extend to men of war or armed warships
of the United States or any foreign nation. The same
rule of entering upon a government reservationto make
an arrest would apply in such cases.
SUMMARY
State Highway Patrolman are npeaoe of-
ricers,W and if a person commits a misdemeanor
which is an offense against the public peace,
or felony, within their sight, they have the
authority, while still in "fresh pursuitn to
go aboard a merchant ship of the United States
or of any foreign power, in a Texas port, to
arrest the offenderwithout a warrant. (Art.
$45 (F's 7. G. S., Arts. 37, 212, 215, 216,
. . . .
Such officers are authorized to serve
eithe~ra misdemeanoror felony warrant on a
United States merchant vessel or a merohant
ship of a foreign nation that is in a Texas
port. The fact that the ship may be in the
channel is of no consequence.
Yours very truly
RAH/JMc ATMRNBY GENERAL OF TEXAS
L Robert A. Ball
Assistant