Case Information

*1 R-158 OFFICE OF THE ATTORNEY GENERAL AUSTIIV,TEXAS PRICE DANIEL June 2, 1947 .4+tcmNFz GEXlmAL

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 misdemeanor within 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’nsa committed was 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? that a Texas Highway Patrolman

nAsauma *2 ~Bonorable Homer Garrison, Jr. - Page 2

has a misdemeanor warrant 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 Crimjnal Proce- 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 enumerated where 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 *3 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 committed within his

juriadlotion,.whare ha has good reason to

believe therehas been a violation of the

penal law. He shall arrest offenders with- 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 officers were 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 International Law, Sixth Edition, at page 151, reads as follows:

"According to 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 distinction was to be drawn between the rights accorded to prl- vate individuals,or private trading vessels?

and those accorded to public armed ships which constitute a part of the military force of the nation.

"When private individuals of one nation spread themselves through another as business or caprice may direct, mingling lndlscriminate- ly with the inhabitants of that other; or when merchant vessels enter for the purposes Of trade, it would be obviously inconvenient and 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 individuals did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country. Nor can the foreign sovereign have 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. Consequently there are power- ful motives for not exempting persons of this description from the jurisdiction of 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 arrangement with 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 stipulations to the ContlgrY, and any crime committed there may be punished by 10001 laws.

Under the authority of the above cited StakUteS *5 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 patrolman was in "fresh pursuit" of the offender. It is also the opin- ion of this department that 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 reservation to 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 offender without a warrant. (Art.

$45 (F's 7. G. S., Arts. 37, 212, 215, 216,

. . . .

Such officers are authorized to serve eithe~r a misdemeanor or 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