Armendariz, Jose Franco

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. 0070-02

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JOSE FRANCO ARMENDARIZ, Appellant

v.

THE STATE OF TEXAS

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ON DISCRETIONARY REVIEW FROM THE EIGHTH COURT OF APPEALS ECTOR COUNTY

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   Womack, J., filed a concurring opinion.

While I join the Court's opinion, I wish to point out a more significant question on which we granted review, but which the Court's opinion does not reach: the authority of municipal police officers to arrest outside their cities.

This court confronted the question in 1987 in Angel v. State. ⁽¹⁾ Police officers of the City of Tomball stopped Angel outside the city limits on August 29, 1983. They learned that warrants for his arrest were outstanding, and one of them saw evidence that made him think that Angel's vehicle had been "hot wired," so they arrested him. At his trial for felony theft, he objected to the evidence on the ground that it was illegally seized by officers who had no authority to stop or arrest him "outside the jurisdiction of authority." ⁽²⁾ The trial court overruled the objection. The court of appeals rejected his argument and affirmed the judgment of conviction.

In this court an opinion by Judge Campbell announced the judgment that affirmed the judgments of the courts below. After setting out the facts and the procedural history in Parts I and II, the opinion addressed two questions. In Part III, the opinion held that the State had "waived" the right to challenge Angel's standing to complain of the seizures by not raising the question in the court of appeals. ⁽³⁾ That part of the opinion was joined by only one other judge, ⁽⁴⁾ with a third judge concurring in the result. ⁽⁵⁾

In Part IV, Judge Campbell's opinion addressed the authority of the Tomball officers to arrest outside the city limits. The opinion looked to Articles 998 and 999 of Vernon's Texas Civil Statutes Annotated. Article 998 said that the city or town council in any city or town "incorporated under the provisions of this title" (not otherwise identified in the opinion) may provide for the appointment of police officers, who "shall have like powers, rights, authority and jurisdiction as are by said title vested in city marshals." ⁽⁶⁾ In turn, Article 999 said of the city marshal, "In the prevention and suppression of crime and arrest of offenders, he shall have, possess and execute like power, authority and jurisdiction as the sheriff." ⁽⁷⁾ The opinion noted that a sheriff was "a conservator of the peace in his county …. Art. 2.17, V.A.C.C.P. (1977). A sheriff's jurisdiction, therefore, is county-wide. Because a city police officer's jurisdiction for arresting offenders parallels a sheriff's jurisdiction, see Arts. 998 & 999, supra, it appears that a city police officer's jurisdiction is county-wide." ⁽⁸⁾ The opinion held that those articles "grant city marshals and city police officers county-wide jurisdiction to arrest offenders." ⁽⁹⁾ It also said that prior decisions of the court, which were to the contrary, were overruled. ⁽¹⁰⁾

I do not believe that Angel can be relied on to decide the question of the authority of police officers to arrest outside their cities today. For one thing, Judge Campbell's opinion on that question was not joined by any other member of the court. One judge was recorded simply as "concurs in result." ⁽¹¹⁾ The other three members of the court who joined the judgment of affirmance dissented from Part III of Judge Campbell's opinion, and said, "Otherwise, [they] concur in the result." ⁽¹²⁾ Four judges dissented. ⁽¹³⁾

Plurality opinions from this court were common before 1997, ⁽¹⁴⁾ and the lead opinions did not inform the reader whether they were opinions of the court. In fact, the reader might have to leaf through several opinions, looking for the various places in which the individual judges' decisions might be recorded. Readers and publishers might notice that a lead opinion was not an opinion of the court, but they might not. In the Angel case, for example, the syllabus and headnotes of the West Publishing Company's report did not mention that the lead opinion was that of Judge Campbell with one judge concurring as to Part III, and four judges concurring in the result as to Part IV. ⁽¹⁵⁾

As we have said before, plurality opinions have limited (or even no) precedential value. ⁽¹⁶⁾ When an opinion that announced the judgment of the court was not joined by any other member of the court, we have been free to reexamine its reasoning and to say whether it can be regarded as correct. ⁽¹⁷⁾ We granted review to do so in this case. ⁽¹⁸⁾ I think that Judge Campbell's opinion did not address the statutes correctly, and the amendment of the controlling statutes in 1995 has made its persuasive authority even less.

Judge Campbell based his opinion in Angel on language in two articles of the civil statutes. The basic flaw in this approach is that, as a dissenting opinion pointed out, it did not take into account whether those statutes applied to the kind of municipality in question. ⁽¹⁹⁾

There are three species of municipal corporations in Texas, categorized according to the manner of their creation: general-law cities (of which there are three types -- A, B, and C), home-rule cities, and cities chartered by special legislation. ⁽²⁰⁾ The various statutes that grant their authorities were codified in the Local Government Code in 1987. ⁽²¹⁾

When the Tomball officers arrested Angel in 1983, Articles 998 and 999 of Vernon's Civil Statutes (the specific statutes on which Judge Campbell's opinion in Angel relied) were in Title 28, Chapter 1 of the Civil Statutes. The "Articles of this chapter have application only to general law cities." ⁽²²⁾ Articles 998 and 999 did not apply to home-rule or special-law municipalities.

Home-rule cities were authorized, by an article in Chapter 13, "To provide for police and fire departments." ⁽²³⁾

Home-rule cities have the mere statutory authority to "provide for a police department." ⁽²⁴⁾ Whatever extraterritorial authority that may be granted to [home-rule-city] officers pursuant to a [home-rule-city] charter cannot, of course, be in conflict with the general laws of the state which conclude that a [home-rule-city] policeman, as a peace officer, has the duty "to preserve the peace within his jurisdiction." ⁽²⁵⁾ There has never been a statute comparable to that applicable to a Type A general-law municipalities that gives officers the same county wide authority as sheriffs. ⁽²⁶⁾

It may be added that a home-rule municipality also may police certain areas owned by and located outside the municipality. ⁽²⁷⁾ In a Type B general-law municipality, the marshal has the same power within the municipality that a constable has within a precinct. ⁽²⁸⁾ In a Type C municipality, the governing body may appoint police officers that it considers necessary and may define the duties of the officers. ⁽²⁹⁾

Insofar as Judge Campbell's opinion said that Articles 998 and 999 could authorize officers of any kind of municipality to arrest outside the limits of their cities, it was simply incorrect. Some courts of appeals have recognized that the holding of his opinion cannot be applied to officers of all types of cities. ⁽³⁰⁾

A second reason why Angel cannot be authoritative today is that Articles 998 and 999 have changed. They were repealed, effective September 1, 1987, ⁽³¹⁾ and replaced by sections 341.001 and 341.021 of the Local Government Code. Those sections apply only to the police force and the marshal, respectively, of a Type A general-law municipality. ⁽³²⁾ In 1995, those sections were amended to give the officers of those cities the same powers and jurisdiction that the Code of Criminal Procedure gives peace officers. The amending act said:

Section 341.001(e), Local Government Code, is amended to read as follows:

(e) A police officer has:

(1) the powers, rights, duties, and jurisdiction granted to or imposed on a peace officer by the Code of Criminal Procedure [of a marshal of a Type A general-law municipality]; and

(2) other powers and duties prescribed by the governing body. ⁽³³⁾

Section 341.021(e), Local Government Code, is amended to read as follows:

(e) The marshal has the same power and jurisdiction as a peace officer under the Code of Criminal Procedure [the county sheriff] to execute warrants, to prevent and suppress crime, and to arrest offenders. The marshal has other powers, not inconsistent with state law, that the governing body confers by ordinance. ⁽³⁴⁾

The act had one other section, which added subsection (g) to article 14.03 of the Code of Criminal Procedure:

(g) A peace officer who is listed in Subdivision (1), (2), (3), or (4), Article 2.12, is licensed under Chapter 415, Government Code, and is outside of the officer's jurisdiction may arrest without a warrant a person who commits any offense within the officer's presence or view, except that an officer who is outside the officer's jurisdiction may arrest a person for a violation of the Uniform Act Regulating Traffic on Highways (Article 67091d, Vernon's Texas Civil Statutes) only if the officer is listed in Subdivision (4), Article 2.12. A peace officer making an arrest under this subsection shall as soon as practicable after making the arrest notify a law enforcement agency having jurisdiction where the arrest was made. The law enforcement agency shall then take custody of the person committing the offense and take the person before a magistrate in compliance with Article 14.06. ⁽³⁵⁾

The peace officers who were listed in Article 2.12(1)-(4) were sheriffs and their deputies, constables and deputy constables, marshals or police officers of an incorporated city or town or village, and rangers and officers of the Department of Public Safety. Subsection (g) was amended in 1999 to add a fifth class of officers (the investigators of the district attorneys', criminal district attorneys', and county attorneys' offices) and to change the reference from "Uniform Act [etc.]" to "Subtitle C, Title 7, Transportation Code." ⁽³⁶⁾ Other, minor amendments have been made.

Taken as a whole, the 1995 act (as amended in 1999) affected the law in four ways. (1) It gave five classes of peace officers authority to arrest outside their jurisdictions for offenses, other than certain traffic offenses, that were committed within the officer's presence or view. (2) By negative implication, it denied to all other classes of peace officers authority to arrest outside their jurisdictions for offenses that were committed within the officer's presence or view. (3) It gave only rangers and officers of the Department of Public Safety authority to arrest for certain traffic offenses if they were outside the officer's jurisdiction. (4) It gave the officers of Class A general-law municipalities the same power and authority as peace officers are generally given under the Code of Criminal Procedure.

When this statute, as it has been amended, is considered together with the provisions of the Local Government Code, today's answer to the question in Angel, and the question in this appeal of which we granted review but that we have not addressed, would seem to be that a peace officer does not have authority to arrest outside the officer's jurisdiction unless (1) the offense is committed within the officer's presence or view, and (2) the offense is under some statute other than Transportation Code Title 7, Chapter C, and (3) the officer is licensed under Government Code Chapter 415, and (4) the officer is:

(a) a sheriff, or a sheriff's deputy, or a reserve deputy with a certain licence;

(b) a constable, or a deputy constable, or a reserve deputy with a certain license;

(c) a marshal or police officer of an incorporated city, town, or village, or a reserve officer with a certain license, and the municipality is:

(1) a Type A general-law city,

(2) a Type B general-law city,

(3) a Type C general law city (unless the governing body has defined the officer's duty so as not to include that authority),

(4) a home-rule city, or

(5) a special-law city (unless the statute that created the city, the charter, or the governing body acting under that statute and charter, has defined the officer's duty so as not to include that authority);

(d) a ranger or officer of the Department of Public Safety; or

(e) an investigator of the office of a county attorney, a district attorney, or a criminal district attorney.

A ranger or officer of the Department of Public Safety has the additional authority to arrest outside the officer's jurisdiction for an offense under Transportation Code Title 7, Chapter C, if the offense is committed in the officer's presence or view.

Some courts of appeals have recognized that the 1995 amendments have made obsolete the holding in Judge Campbell's opinion in Angel. ⁽³⁷⁾

Of course, the proper consideration of the statutes does not end the analysis in every case. For example, our decisions have recognized a doctrine of "hot pursuit" that allows an officer who begins to pursue a suspect within the boundary of a municipality to continue the pursuit and effect an arrest outside the boundary. ⁽³⁸⁾

The Court has not reached this issue in this case because it disposed of the appeal by holding that the arrest was made, in effect, by a deputy sheriff who had county-wide authority, and that the trial court did not err in admitting the evidence that was obtained from the arrest. I join the Court's opinion.

En banc.

Delivered December 10, 2003.

Publish.

1. 740 S.W.2d 727 (Tex. Cr. App. 1987).

2.

Id., at 728-29.

3.

Id., at 730.

4.

See id., at 736 ("Duncan, J., joins in part III …").

5.

See id., at 748 (dissenting opinion of Miller, J.) ("I concur in the result reached as to the standing issue …").

6.

Id., at 732, n.13 (emphasis in original).

7.

Ibid. (emphasis in original).

8.

Id., at 735 (emphasis in original).

9.

Id., at 736.

10.

Ibid.

11.

See Angel, 740 S.W.2d, at 736 ("White, J., concurs in result").

12.

Angel, 740 S.W.2d 736, 739 (concurring and dissenting opinion of McCormick, J., joined by Onion, P.J., and Davis, J.).

13.

See Angel, 740 S.W.2d, at 736 ("Teague, J., dissents. Duncan, J., joins in part III and dissents to part IV"), 739 (dissenting opinion of Clinton, J., joined by Teague, J.), 748 (opinion of Miller, J., concurring in result reached concerning the standing issue, and dissenting to the jurisdiction holding).

14. Of the cases in which this court ordered its opinions published in State Fiscal Year 1996, nineteen per cent were decided without an opinion of the court. Since 1997 the number has been less than one per cent.

15.

See Angel, 740 S.W.2d, at 727.

16.

E.g., Cooper v. State, 67 S.W.3d 221, 224 (Tex. Cr. App. 2002).

17.

See Ex parte Anderer, 61 S.W.3d 398, 402-05 (Tex. Cr. App. 2001).

18. "The continued viability of

Angel is squarely presented in Armendariz v. State, 02-0070, which is currently pending in this Court." Yeager v. State, 104 S.W.3d , 105 n.2 (Tex. Cr. App. 2003).

19.

See Angel, 740 S.W.2d, at 739 (Clinton, J., dissenting).

20. David B. Brooks, 22 Texas Practice -- Municipal Law & Practice § 3.03 (2d ed. 1999).

See Tex. Local Gov't Code, ch. 5:

"Subchapter A. Types of Municipalities

"Section

"5.001. Type A General-Law Municipality.

"5.002. Type B General-Law Municipality.

"5.003. Type B General-Law Municipality.

"5.004. Home-Rule Municipality.

"5.005. Special-Law Municipality."

21. Act of May 21, 1987, 70th Leg., R.S., ch. 149, § 1, 1987 Tex. Gen. Laws 707, 707.

22. Trueman O'Quinn,

History, Status, and Function of Cities, Towns and Villages, in 2A Vernon's Annotated Revised Civil Statutes of the State of Texas xiii, xxix (1963).

23. Vernon's Annotated Civil Statutes art. 1175(27) (1963).

24. [Tex. Local Gov't Code] § 341.003.

25. [Tex. Code Crim. Proc. art.] 2.13.

26. David B. Brooks, 23 Texas Practice -- Municipal Law & Practice § 14.09 (2d ed. 1999) (footnotes in original, renumbered).

27. Tex. Local Gov't Code § 341.903 ("parks and grounds, lakes and land contiguous …, speedways and boulevards").

28.

Id., § 341.022(a).

29.

Id., § 341.002.

30.

See Yeager v. State, 23 S.W.3d 566, 570 n.3 (Tex. Cr. App. -- Waco 2000), reversed on other grounds, 104 S.W.3d 103 (Tex. Cr. App. 2003); Reichaert v. State, 830 S.W.2d 348 (Tex. App. -- San Antonio 1992, pet. ref'd)..

31.

Id., § 49(1), 1987 Tex. Gen. Laws at 1306 ("The following laws are repealed: (1) the following articles and acts, as compiled in Vernon's Texas Civil Statutes: … 998 … 999 …").

32. Brooks,

supra note 26, § 14.09

33. Act of June 16, 1995, 74th Leg., R.S., ch. 829, § 2, 1995 Tex. Gen. Laws 4213, 4214.

34.

Id., §3, 1995 Tex. Gen. Laws 4213, 4214.

35.

Id., § 1, 1995 Tex. Gen. Laws 4213, 4213.

36. Act of May 24, 1999, 76th Leg., R.S., ch. 210, § 2, 1999 Tex. Gen. Laws 686, 686-87.

37.

See Gerron v. State, 57 S.W.3d 568, 570 (Tex. App. -- Waco 2001), vacated on other grounds, 97 S.W.3d 597 (Tex. Cr. App. 2003); Hoitt v. State, 28 S.W.3d 162, 165 (Tex. App. -- Texarkana 2000), pet. dism'd); Preston v. State, 983 S.W.2d 24, 26 (Tex. App. -- Tyler 1998). Contra, Brother v. State, 85 S.W.3d 377, 385 n.7 (Tex. App. -- Fort Worth 2002).

38.

See, e.g., Yeager v. State, 104 S.W.3d 103 (Tex. Cr. App. 2003).