Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN GROVER SELLERS ATTORNEY GENERAL
Honorable B. C. Jones County Attornay Red River County Clarkaville, Texas
Dear Sir:
Opinion No. 0-7174 Re: Authority of officer to arrest a peraon when said officer is not dressed, as required under Article 303b, Penal Code.
In your letter of June 27, 1946, adrensed to this department, you ask for an opinion on the following facts, viz: "In a recent case tried under Art. 727a (5a), P. C. in the Justice Count have; the accused offered as his defense that the arresting officer was not dressed, as required under Art. 803b, which was true. The state contented that in view of the decision banged down in Boeggin v. State, 38 S. W. (2) 59 E decalaring 803a P. C. unconstitutional, that 303b would likewise be unconstitutional; and therefore, regardiess of the manner in which the arresting officer was dressed, it was no defense. Accused then offered Art. 6859a, Rev. Civ. Stat., as a defense on the same grodade, since the arresting officer's authority had sprung from that statute, and in this case he did not have the badge and prescribed cap on at the time."
You are advised that the Attorney General's Department has ruled, and our courts have repeatedly held, that a statute requiring certain peace officers to wear certain type uniforms, garments, caps and official badges while arresting offenders for highway violations is in contravention of our State Constitution, 3ec. 19, Art. I, and 3ec. 1, Art. II. Booggin v. State, 38 S. W. (2) 592; Ex parte Heiling, 82 S. W. (2) 644; Scott v. State, 114 S. W. (2) 564.
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ionorable 3. i. Jones - Page 2
In former opialons of this department, 308. 0-317 and 0-1454, Arisale 303(b) of the Peaal Oode was held unconstitutional for the additional reason that such officer could suspend the onforemeat of the highway violatioss by the volunary leaving off of his uniform in violation of Art. 1, Jee. 28, of the Constitution, to-wit: "No power of suspending laws in this state shall be exorelated exeept by the Legialature."
The general law on this subject, as we have had zocation to point out in our former opinions, is Art. 303, i. C. 3., to-wit: "any peace officer is authorized to arrest without varrent any persoa found committing a violation of any provision of the preceding ar. cieles of this oanpter . . ."
We have said in this sonnection that, in our opiaion, the case of Ex Parte Heiling, 32 s. W. (2) 644, goes farther than merely holding Art. JOSs to be unconstitutional because it was a special law. The case holds that Art. 303a, as entoted by the fifth called Session of the 41st Legialature, was not materially different from 303a, as aneaded by the Second called Session of the 43 st Leghalature; and applying the rule of construction as announced in the seoggins case, the requirement of uniform was unconstitutional.
Soott v. State, 114, 3. W. (2) 564, agrees with the "Heiling case" in holding that the statute requiring officers to wear certain uniformes, caps and official bedges was in contraveation of the State Constitution.
Joth of these cases rely on the decision of the court and the opinion of Judge Lettinore, of the Court of Criminal Appeals, in the case of seoggins v. State, 38 3. W. (2) 592, to which you refer and with which you are entirely familiar.
Ibviously, if Art. 303b is valid, the option is with the officer to wear a uniform and enforce the state's highway laws, or leave off his uniform and thus relieve himself of the iuty of onforcing that law, which, in effect ousponds the law.
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Honorable B. C. Jones - Page 3
As stated, that is in violation of Art. 1, Sec. 28, of the Constitution of Texas.
Art. 803b is the latest effort of the Legislature to require the officers of this state to wear a badge at a certain place on his body, to wear a cap, coat or blouse and trousers of named colors before he can make an arrest for a violation of the highway laws of this state, though he is authorized by Art. 303 to make such an arrest. In our opinion, the Legislature has attempted to do what Judge Lattimore in the 3coggins case said it could not do. We think, therefore, that the requirement of a uniform in Art. 303b violates the state Constitution for the reasons given in the opinions of Judges Morrow and Lattimore.
Hence, we concur, unqualifledly, in the state's contention, as urged by you in the Justice Court case, that "regardless of the manner in which the arresting officer was dressed, it was no defense."
JLW:Ed
Yours very truly ATTORNEY GENERAL OF TEXAS
John L. Wroe Assistant