Honorable Joe Resweber              Opinion   No.   H-1029
County Attorney
Harris County Courthouse            Re: Authority of local
Houston, Texas 77002                peace officers to arrest
                                    illegal &liens without a
                                    warrant.

Dear Mr. Reswebcr:

     You have asked our opinion whether a Texas peace officer
may arrest and detain a person without a warrant because the
officer has reason to believe the suspect to be an alien who
has illegally entered the United States. An alien who illegally
enters the country or eludes examination or inspection by im-
migration officials commits a federal misdemeanor offense for
the first such violation.  Subsequent offenses are classified
as felonies.  8 U.S.C. S 1325.

     A Texas peace officer may arrest an offender without a
warrant "for any offense committed in his presence or within
his view."  Code Crim. Proc. art. 14.01(b).  He may also
arrest, without a warrant,

          persons found in suspicious places and
          under circumstances which reasonably
          show that sl!ch persons have been quilty
          of some felony or breach of the pcacc:,
          or threaten, or are about to commit
          some offense against. the laws.

Code Crim. Proc. art. 14.03. Article 14.04 of the Code of
Criminal Procedure likewisl! iluthorizes a peace officer to
arrest a suspect without warrant upon the representation of
a credible per-son that a felony has hccn committed and upon
satisfactory proof that the, offender is about to escape, so
that there is no time to procure a warrant.

     The United States Supreme Court has construed similar
language to authorize state officers to make arrests for
federal offenses.  United
                   _._.    States v. Di Re, 332 U.S. 581 (1948).
                        ---__




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         In such a case the lawfulness of an arrest without warrant is
         to be determined by reference to State law. Miller v. United
         States, 357 U.S. 301 (195fo; United States v.
         -Texas        Court of Criminal A%&ls  has aoocr
         the authority of State office;.; to make arrests f'or federal
         offenses as long as procedures "conform to the state practice
         in similar matters. except where otherwise especi~ally provided
         for. . . ." Ex parte Jones, 208 S.W. 525 (Tex. Crim. App.
         1919). This is consistent-with the view adopted by courts
         with reference to the laws of other States. See Marsh v.
         United States, 29 F.213 172 (2nd Cir. 1928); Unea
         Leland,
              -.    376 F.SUDD. 1193 (D.Del. 1974): United
                                                    --
         Bumb'ola, 23 F.2d'696 (N.D.N.Y. 1928);.Whitlock
         E-m 7br -lo. ,a..:" ,OL"\
                      ItaLA.2.
                             *;1>v,.

              We believe this general rule is applicable to the power
         of State officers to make arrests for immigration offenses.
         The power to regulate immigration is un~questionably exclu-
         sively a federal power. The Constitution nonetheless leaves
         room for consistent State and federal action unless Congress
         has manifested a clear intention to preempt State power.
         De Canas v. Bica, 424 U.S. 351 (1976). While Congress has
         specifically conferred upon certain officers of the Immigra-
         tion and Naturalization Service (INS) the power to arrest
         without warrant any alien who is entering or has entered the
         country illegally, 8 U.S.C. 9 1357, it has nowhere indicated
         an intention to eliminate the power of State officers to arrest
         aliens illegally in the country, where authorized by State law.

              We turn, then, to the power under State law of Texas peace
         officers to arrest aliens illegally in the country.  Clearly
         an alien committing an offense against the laws of this State
         may be arrested under the same terms as any other person.   If
         local officials perceive a likelihood that an alien in custody
         on other charges has entered the country illeyally, they should
         notify federal INS officers of their suspicion, and may release
         the suspect to the custody of federal officials after disposi-
         tion of State criminal charges.

                Texas peace officers do not, however, have authority to
          arrest an individual.solely upon suspicion that he has pre-
          viously entered the country illegally in violation of 8 U.S.C.
          5' 1325, unless the officer has probable cause to believe that
          the suspect is committing dn illegal entry or elusion in the
         ~officcr's presence, or has committed a second or subsequent
          offense under section 1325. A first offense under 8 U.S.C. S
          1325 is a misdemeanor, and we do not bclicve it would be con-
          sider.!d a “breach of the pcacc" under standards set out by




                                    p. 4249
,


    Texas courts.      -L---' v stab2 213 S.W.2d 685 (Tex. Crim.
                   See Woods
                   _
    App. 1949); Head v. State, 96 S.W.2d 9A1 (Tex. Crim App. 1936).
    Thus, neither article 14.03 nor 14.04 of the Code of Criminal
    Procedure would authorize arrest, and article 14.01 would
    authorize arrest only if an offense is committed in the pres-
    ence of the officer.

          Article 14.01 would authorize a Texas peace officer to
    arrest without warrant an alien who actually makes an illegal
    entry  into the country or eludes examination or inspection by
    immigration officials in the officer's presence.   An illegal
    "entry" into the country is clearly different, however, from
    illegally "remaining" in the country.   United States v. Evans,
    333 U.S. 483 (1948). Illegally remaining in the United States
    likewise does not, in itself, constitute "eluding" examination
    or inspection by immigration authorities.   Alves v. Shaughnessy,
    107 F.Supp. 443 (S.D.N.Y. 1952). While the crime of entry may
    continue-"at least until the alien has reached a 'place o?     -
    temporary safety,"' Letter from Attorney General of California
    to Assemblyman Peter R. Chacon at 5 (Aug. 8, 1973) (Re: I/L CR
    73/24. noted at 56 Ops. Cal. Atty. Gcn. XVI), it is not an af-
    fense of infinite duration.   See United States v. Mallides, 335
    F.Supp. 1 (S.D. Cal. 1972), rev'd on other ,roun$s, 473 F.2d 859
    (9th Cir. 1973). Whether anmga        *entry or elusion" is oc-
    curring in an officer's presence will necessarily depend on
    the facts of each case.

         Articles 14.03 and 14.04 of the Code of Criminal Procedure
    could also. if the conditions set forth therein are satisfied.
    see Milton-v. State, No. 53,332 (Tex. Grim. App. April 13, 1977),
    Ehorlze    arrest upon probable cause to believe the suspect has
    committed a felony-violati~on of immigration related ,laws. See,
    e.g., 8 U.S.C. 9 1325 (second or subsequent illegal entry); 8
    U.S.C. S 1326 (reentry of deported alien); 8 U.S.C. 9 1252(e)
    (failure to depart after <lrclcrof deportation): 8 U.S.C. 9
    1185 (violation of entry          a1111exit controls during time of war
    or national elllc~r(l~?I~~~~) ; 10 1I.S.C.   9 911 (fal:;c*
                                                              representation
    of citizenship); IS U.S.C. $9: 1426, 1546 (possession of false
    citizenship, immiIjrat.ionor uatur.llization documents); 1R U.S.C.
    App"rldix 9 1202 (rcccir)t.,)>osscbssionor transportation of a
    firearm in intorstatc or inC<*rnationol commerce by an alien
    illegally in thck United St .Itl,*s)       . In the absence of these spc-
    cial circumstances, howevc,r, Texas peace officers may not ar-
    rest without warrant an alien solely upon the suspicion that
    he has entered the country illegaliy.

                               SUMMARY

               A  Texas peace officer may make a warrant-
               less arrest of ,an alien upon probable
               cause  to bclievl.:tllat an illegal entry

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Honorable Joe Resweber - Page 4   (H-1029)



          has occurred in the officer's presence,
          or., if the requirements of article 14.03
          or 14.04 of the Code of Criminal Proce-
          dure   are satisfied, that the suspect has
          committed a felony offense under the immi-
          gration laws. Aliens may be arrested for
          violation of State criminal laws on the
          same basis as other persons, and State
          officers may notify federal officials when
          such a person is suspected of being ille-
          gally in the United States and turn the
          suspect over to federal officials after
          disposition of State criminal charges. A
          Texas peace officer may not arrest without
          warrant an alien solely upon the suspicion
          that he has entered the country illegally.




                              Attorney General of Texas




(7
C. ROBERT HEATH, Chairman
Opinion Committee

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