June 16, 1977 The Honorable Gene Russell County Attorney Burnet

June 16, 1977

The Honorable Gene Russell

County Attorney

Burnet County

Burnet, Texas 78611

Opinion No. H-1016

Re: Authority of sheriff

to make arrests outside

his county.

Dear Mr. Russell:

you have requested our opinion whether a sheriff may make

an arrest outside of his county for an offense committed outside

of his county if the offense is committed in his presence or

within his view.

The authority of a sheriff to make arrests for offenses com-

mitted outside of his county was examined in Henson v. State,

49 S.W.Zd 463 (Tex.Crim.App. 1932). The court reviewed the per-

tinent statutes and authorities and summarized them as follows:

The sheriff is a conservator of the

peace in his county. . . .

C.C.P. art. 41; presently C.C.P. art. 2.17.

It is his duty to preserve the peace

within his jurisdiction. . . .

C.C.P. art. 37; presently C.C.P. art. 2.13.

In performing this duty he may, in

meeting with resistance in the dis-

charge of any duty imposed upon him

by law,

summon citizens of his county

to overcome the resistance. . . ,

C.C.P. art.

38; presently C.C.P. art. 2.14.

p. 4192

The Honorable Gene Russell - page 2

(H-1016)

The same statutes respecting the autho-

rity to make arrests and execute process

in criminal cases govern sheriffs and

state rangers,

except that state rangers

have the power to make arrests in any county

in the state. . . .

A--

(Emphasis in original). V.T.C.S. art. 6570; presently V.T.C.S.

art. 4413(11) (4).

Article 223, C.C.P., [presently C.C.P.

art. 15.061,

authorizing the execution

of a warrant of arrest by a sheriff under

the conditions stated in the article in

any county in the state, is not deemed to

have the effect to extend generally the

jurisdiction of a sheriff beyond the bor-

ders of his county. In the absence of a

warrant of arrest issued under the provi-

sions of article 223, supra, a sheriff as

such

not authorized to make an arrest

outside of his county. . . . .

The following is taken from 2 Ruling

Case Law. p. 469: "A public officer appointed

as a conservator of the peace for a particu-

lar county or municipality as a general rule

has no official power to apprehend offenders

beyond the boundaries of the county or.dis-

trict for which he has been appointed *

l l

Where the sheriff of a county attempts to

make an arrest in another county, without a

warrant, he is usually considered as having

only the authority which a private person

may have in apprehending criminals.

l l

In the present case, the relation the

officers bore to the search was that of pri-

vate citizens.

No conditions were present

which would have authorized a private citizen

to arrest appellant.

Id. at 465.

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” _.

The Honorable Gene Russell - page 3

(H-1016)

We note that every statutory phrase emphasized by the

Henson court remains essentially intact.

While article 4413(U)

was amended in 1971, it still provides that State Rangers shall

have the

same

powers and duties of sheriffs:

except that they shall have the power and

be authorized to make arrests and to execute

all process in criminal cases in any county

in the State.

V.T;C.S. art. 4413(11) (4). The implication is that sheriffs

have narrower territorial jurisdiction.

In 1967 the legislature enacted article 14.01(b) of the

Code of Criminal Procedure, which provides:

A peace officer may arrest an offender

without

warrant for any offense committed

in his presence or within his view.

Article 14;01(a),

formerly article 212, C.C.P., contains lan-

guage parallel to that of article 14.01(b) but is limited to

offenses classed as felonies and offenses against the public

peace. Article 212 was referred'to in Henson and the court

clearly held that outside of an officer-jurisdiction he

acts as a private person: see also Ward v. Texas, 316 U.S.

547 (1942); Hooper v. DeisEi,m~ SxZd-?%63ex. Civ. App.

-- Amarillo 1938, no writ),

thus suggesting that language

such as that contained in article 14:01(a)-or 14.01(b) is

insufficient to authorize a sheriff to make arrests outside

his county.

However,

in 1968 the Court of Criminal Appeals suggested

in dictum that the enactment of article 14.01(b) would autho-

rize a city policeman to make an arrest outside his city.

Buse v. State,

435 S.W.Zd 530 (Tex. Crim. App. 1968). In

1973, article 14.01(b) and Buse were cited along with several

well established exceptionstothe Henson rule to uphold an

arrest made by a policeman outside FhiTty limits for an

offense committed inside the city.

Green v. State, 490 S.W.Zd

826 (Tex. Crim. App. 1973).

Since the reference was not

necessary to the court's holding it, too, is considered to

be dictum. Ex parte Coffee, 328 S.W.Zd 283 (Tex. 1959);

Ball v. Davis, 18 S.W.Zd 1063 (Tex. 1929);

153 S.W. 1126 (Tex. 1913): Belote v. State.,

fZ$gY&;*'

(Tex. Crim. App. 1933).

We%ve examined the briefs submitted

to the Court of Criminal Appeals in both Buse and Green,

and

p. 4194 j

The Honorable Gene Russell - page 4

(H-1016)

the possible application of article 14.01(b) was not urged

in either instance.

Furthermore, article 14.01(b) and Buse

were cited by the court as merely suggesting the conclusion

rather than directly supporting it.

Harvard Law Review Assoc.,

A Uniform System of Citation 86-87 (11th ed. 1967).

While it is important to be aware of the dicta in Buse

and Green and to understand that it is possible that it may

be a-indication that the court will find that article 14.01(b)

has overturned the Henson rule, we do not believe that the

dicta in these two cases can be construed as finally resolving

the question.

Accordingly, until the Court of Criminal Appeals

makes a more direct ruling on the question, we believe we must

advise you that the sheriff of one county probably has no

general authority to make arrests in another county.

You also ask if

a sheriff can make an arrest 400 yards

beyond the county line under the authority of article 13.04

of the Code of Criminal Procedure.

Article 13.04, which

indicates that an offense committed within 400 yards of a

county line may be prosecuted in either county, does not

authorize a peace officer to make arrests in the 400 yard

zone in another county.

See Ledbetter v. State, 5 S.W. 226

(Tex. Ct. App. 1887).

-.-

SUMMARY

A sheriff should not make arrests outside

his county for offenses committed outside

his county except as he is authorized to

do so as a private person under article

14.01(a) of the Code of Criminal Procedure

or where the offense is within an esta-

blished exception to the Henson doctrine.

truly yours,

$tll

Attorney General of Texas

APPROVED:

P. 4195

The HonoAble Gene Russell - page 5

(H-1016)

ROBERT HEATH, Chairman

Opinion Committee

km1

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