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                     TaE:Arrroxc~EY                      GENERAL

                                      OFTEXAS

                                      A~USTIN   11. TEXAS
   WILL    WILSON
A-l-rORNEY   GENEXXAL
                                       August    8,   19.57


         Honorable Wm. J. Burke                 opinion NO. W-128.
         Executive Director
         State Board of Control                 Re:       Authorlty of the Capitol
         Capitol Station                                  Guards to enforce park-
         Austin, Texas                                    ing and other regulations
                                                          within the Capitol
         Dear Hr. Burke:                                  5rounds.

                   You have requested our opinion as to whether or
         not Capitol Guards have auth0rit.y to issue parking tickets
         and/or arrest violators of the spe8.d and traffic laus, and
         those guilty of abuse and malicious destruction and/or theft
         of State property in the event such persons are apprehended
         by the Capitol Guards,

                   It is axiomatic that in a government in which the
         duties of all officers, as well as their powers, are defined
         by written law, no power should he exercised unless author-
         ized by law.

                   We have been unable to find any Constitutional or
         Statutory provisions clothing the Capitol Guards with police
         enforcement powers. Article 36, Vernon's Code of Criminal
         Procedure,providea:

                      "The following are 'peace officers':   the
                 sheriff and his deputies, aonstable, the ,mar-
                 shal~or policemen of an incorporated town or
                 city, the officers, non-commissloned officers
                 and privates of the State ranger force, and
                 any private person specially appointed to exe-
                 cute criminal process."

         Capitol Guards are not directly, or impliedly, mentioned,

                   Article 37, Vernon's Code of Criminal Procedure,
         sets forth the duties and pouera of "peace officers.*

                   Article I.@, Vernon18 Code of Criminal Procedure,
         establishes sheriffs as 'Conservator of the peace" and sets
         forth his duties as such.

                      Highway patrolmen are clothed wit&the            powers and
                                                           .    .
                                                                      . . -_




Honorable Wm. J. Burke, page 2   (~~-128)



duties of "peace officers" and rangers.     Acts   45th Leg., 1937,
oh. 373, p. 772.
          Your attention is called to Article 212, Vernon's
Code of Criminal Procedure, which provides:

          "A peace officer or any other person, may,
     without warrant, arrest an offender when the
     offense is committed in his presence or within
     his view, if the offense is one classed as a
     felony, or as an 'offense against the public
     peace,'"  (Emphasis ours)

          Article 325, V.C.C.P., is also    germane to your prob-
lem, end provides as follows:

          "All persons have a right to prevent the
     consequences of theft by seizing any personal
     property which has been stolen, and bringing
     it, with the supposed offender, if he can be
     taken, before a magistrate for examination, or
     delivering the same to a peace officer for that
     purpose. To justify such seizure, there must,
     however, be reasonable ground to suppose the
     property to be stolen, and the seizure must be
     openly made and the proceedings had without
     delay.'"

            A private person's right to arrest in all cases in
which'stolen property is found in the possession of the thief,
is clearly given by this article, Morris v. Kaslinq, 79 Tex.
l&l., 15 S.W. 226 (1.890); and the owner or lawful custodian of
property may arrest a thief without warrant, if done openly
and without delay, being officer de lure, for time being.
Henderson v. U. S, Fidelity & Gua%ty     Co., 298 S.W. 404(Tex.
Comm.App. 1927), rehearing denied, 10 S.W.2d 534 (Tex.Comtn.
App. 1928).
          Under this article6 in order to furnish "reasonable
grounds" or "probable cause, the person making arrest must
have information or knowledge amounting to more than mere sus-
picion. Adams v. State, 137 Tex.Crim. 43, 128 S.W.2d 41
(1939).
          From the aforementioned statutes, it is apparent
that those'who may perform the duties necessary to enforce the
laws of the State of Texas have been specifically authorized
to do so by legislative enactment.
Honorable Wm. J. Burke, 'page 3   (~~-128)



          You ,are advised that the Capitol Guards do not
have authority to issue parking tickets and/or arrest viola-
tors of the speed and traffic laws snd those guilty of abuse
and malicious destruction, except in those instances where
such offense constitutes a felony or an offense against the
public peace, and the offense is committed in the guard's
presence or within his view.

          You are advised that, under Article 325. V.C.C.P.,
the Capitol Guards have authority to arrest any person com-
mitting a theft, or any person in whose possession is found
stolen property, so long as the guard has reasonable ground
to suppose that the property is stolen, and the arrest is
made openly and the thief is taken before a magistrate for
examination, or delivered to a peace officer, without delay.

          You are advised that it is within the province of
the Legislature, by statutory enactment, to clothe the Cepi-
to1 Guards with the authority to properly enforce the regule-
tions laid down by the State Board of Control pertaining to
the Capitol Building and Capitol grounds.

                            SUMMARY

          The Capitol Guards do not have authority to
     issue parking tickets and/or arrest violators of
     the speed and traffic laws and those guilty of
     abuse and malicious destruction, except in those
     instances where such offense constitutes a felony
     or an offense against the public peace, and the
     offense is committed in the guard's presence or
     within his view. .If made in accordance with Arti-
     cle 325, v.c.c.P., the Capitol Guards may arrest
     any person in order+ to prevent the consequences
     of theft. The Legislature may, by statutory en-
     actment, clothed the Capitol Guards with the eu-
     thority to properly enforce the regulations laid
     down by the State Board of Control pertaining to
      the Capitol Building and Capitol Grounds.

                              Very truly yours,

                              WILL WILSON
                              Attorney General of Texas




                                  Marvin R. Thomas, Jr.
MRT:wb                            Assistant
Honorable Wm. J. Burke, page 4   (WW-lZ8)



APPROVED:

OPINION COMMITTEE

H. Grady Chandler, Chairman
W. V. Geppert
Wallace Finfrock
B. H. Timmins, Jr.

REVIEMED FOR THE ATTORNEY GENERAL

BY:   Geo 0 P. Blackburn
