Case Information

*1 OFFICE OF THE A-ITORNEY GENERAL OF TEXAS Honorable Albert J. Huteon

county Attornry

Trinity couaty

Urovston, Texas Opinion Ho* Her Arm

Dear air: o&34

Dl.13‘&Si?l;:!i\~:t;:*- jhiir;\\

--y ‘l Rq ara

la receipt letter or ~T$w& data in whlah you ask ths following b”

way an 0fri0a ) ,without 6 warrant, a Feraon f publlo pleas?” YOU tt va. Statr, 124 S.W. court 8trongly inti- (261 and sited that it or conetable ir not or your authoriced to ol.raua8tano*s ‘qusstlon as 8$hte

pal?8 On ill@ In the Court of asa, adtlitfon to agein read- hietory of the Bennett cam wea aooortad by a polioa offlasr or thr City the offloar having recaivsd informetlon that ntoxloated aondltion on the publio strerte. ppsllent waa In such aondition, arrl attemptad t wlthout warrant. Appellant resisted and h anaued, ha took the polia8man1e billy away rusk the officer on the heed, infllatlng painful wounda. A, byetender same to the ratcue of the policemen, end th6 two overpowered appellent, hendonf’fed hipp, and took him to the police station.

The oaea was eppaalad to the Court of Crlmlnel Appeals on the ground of ineuffieimvap of e’cldeme, the oontantion being thet einoe ther? wa8 no evidraos any oonduot on the pert of appellant in tha nature of breaoh of the paaoo, *2 Ronorablr Albert J. Hutton, Fag4 2

oiiioar hsd no right tharef'ora, appellant wa8 to arrwt; justffiad iA using reesonabl4 for08 to pl%Vant hi8 Ill4gal arrest. The Stats coctanded that oinc4 thars was aoideno4 or apperllant's being drunk in 4 pub114 plaa4, the orfIc4r had th4 rie,ht to.erreet without a warr4nt, drunksnn4aa be- ing 4n offense "against ths public p4ace." Based upon thir intarpretation, th6 Ststs oharg4d appellant with aA aggra-, vatsd aeeault undar Saction 1 of Artlola Panal Code.

Th4 rsaord failing to 8how that notioa of app4al was duly raaordsd in the minutre the court, an original the appsal was dietissrd (124 S.W. 359). Upon oonaidarktlon parf4OtiOA of tha rooord, the 4pp4al was rrlnrtatad, and th8 omae rsvarsed ana remendrd. The opinion thus dirsotlng road IA part a8 hollows:

"It does not appear fron thr trstlmony that prior to the tims of hip arrant, appallant had don4 or said anything whloh would 001~4 rith- tha meaning of a br4aoh or di8burb8AO4 of pace. At the time the offiaer rirat saw him, hs was 8tandllllg 1A thr doorway et th4 4lr- vator in the Twymoa Bullding within a blook of the oourthouss.

**Art. 212, C. C. F. providea:

*'A peaer orfloor or any other per8on, nay, without warrant, arrert an oifandar when the of- fen84 is coxnitted In hi8 prrsonos within hi8 view, if the oifenre Is on4 olasaed as a l'elony, or a8 an offsnee against the publio pea~a.~

wTh4r4fore the arrest of appellant wnithcut a w4rrmAt wh4n he was oomnittlng neither a breeoh of the peace or ta tslony ~48 AOt authoriard by law u~lsstp a 10041 ordinanos authorl84d auoh ar- raet. Sea 'i;llllam v. State, 64 Tax. Criza. Rep., 491. Sines there la no proof in thi8 rooora Of such an orbinanc4, tha question met be doaided by Art. 212, C. C. P., a.8 abov4 8(lt out, end g4n8ral laws o!' this stata.

*In the a444 OS Xlng v. State, 103 S.%'. (2d) 754, this court aaid:

"'Dmmk4n~488 la AOt alesaad a8 8 f4lOAy, Aolthsr Is it an ofian agahnst the publla pOa40.'

Vh8 only distinotlon be$w8en th4 iA8t4At 0884 *3 Bonorable Albert ;r. HUteon, Fagr 3

end t&m on4 quoted fxm is that th4 o??ioar In the latter ease attempted to error& K~ing rlth- out a warrant at his r%8id8no%, Wh%r%68 instant 088% the officer attempted to arrest appallant for being drunk in a public place.

"The state railed to ahow that the pollae- man had legal right to maka or att&npt to Plakr the arrest Without ^[4] warrant. I? the arrest ~a8 lllrgal. appellant had the right to resist, or to extricate himself rfroA eaid arrest, and under euch circumatanosr hacl a right to resort to suoh foror 4% Was reasonably naoessary to accompllah that objcotlve."

The State flied a motion ?Or rehearing, Citing Arti- and 999, Earls48 Civil Statutes, 1925, I5 Texas Juri8- 014s 998 prudenoe

300 end Fratt vs. Brown, 80 Tax. 608, 16 9.H. 443. G’pon reooA8ld%ration, the COUrt Of Cri.AiAaI Appeals Wltharew lta opinion as partially quoted above, and dlscure- log the authorities olted by the Stat%, granted th4 mOtiOa 8Ad ar.rimnd the oasci. The authoritiee cited in the State’s motion for rehearing and diecussed by the court eetabliahed the right to arrest for dnmk%AAess iA a of altv marehala and ~01ic8nen $UbIl4"plao% without warrant on the grotmd that same ooixiti- tutor disorderly conduct per se, irr%op%otlv% o? *ether there is additional mfeoonduot aonstituting breech a? the peaoa. That the granting of the State'8 AotlOA was founded on-suoh thsory 1s attested~~ty the flaal paragraph8 of Judge Oravee~ opinion:

"ThU8 bell%vlug we hold that pollcenan have the power under the statute .to arrest without warrant parsons Pouod in a state of drtmkanness in n public place, wlthln thslr Jurlsdlatlon, and that dmnksnness in such place is dlaordsrly conduct.

Bonorabla Albert J. Butson, Feage 4

a warrant where the off’ense is commlttrd in suoh ottioera’ presenoe.” (Emphasis ours.)

From the above and r0r4poiag, it ia our opinion that unlrsa there is other and addltionul evidenoe than mere lntor- loation in a public place, ehsrirra and oonatablas do not have the legal right to arrest one so violating Artlolr f,77, Yanal Oode, unlree much officers firat prooure a warrant of arrest, r&l18 polios orrio0ra or a city may lawfully nmk8 an arrest without a warrant under the same etato of faots. Al- thou&h Ii& opinion In Bennett va. State, rupra, was rrlsaard by the aourt prior to our last laglslatlve eeaelon, and ap- pellaut’a motion fir rehearing was overrulad while the Leglo- latura was la session, no aznendment to the statute was passed.

3’0 hare been unable to rind a further rxprrsaion by the Court of Criminal hppsale slnor the Bennett ease. In the ease of Clark va. Qat, 126 s.i”. (26 I 569, the Court or Civil Appeals at 91 Faao held In an opinion mndared January 19, 1939 (rrhearing denied, Maroh 23, 19391 that ii a deputy shrr- irr plaoed one undsr armfit, without a warrant, on a ohargr of drunkenness In e public plaoe, the arrrat was a lawful one; but inveetlgatlon disoloass a writ oi error was granted by our Supreme Court, and the oeae has not yet been disposed of. Re- gardlass or the outcome or the civil suit or Clark vs. Vr’est, since the Court of Crfalnal Appeals is the oourt of 81oluei~r and final juriedlotion in orimlnal oasm, ita interpretation as stated In the Bennett cars8 is bfnUfng upon peaoe otrioosr8 in sntororment t&cd criainal law. *

I Yours very truly