                      June 16, 1977




The Honorable Gene Russell         Opinion No. H-1016
County Attorney
Burnet County                      Re: Authority of sheriff
Burnet, Texas   78611              to make arrests outside
                                   his county.
Dear Mr. Russell:
     you have requested our opinion whether a sheriff may make
an arrest outside of his county for an offense committed outside
of his county if the offense is committed in his presence or
within his view.
     The authority of a sheriff to make arrests for offenses com-
mitted outside of his county was examined in Henson v. State,
49 S.W.Zd 463 (Tex.Crim.App. 1932). The court reviewed the per-
tinent statutes and authorities and summarized them as follows:
          The sheriff is a conservator of the
          peace --
                in his county. . . .
C.C.P. art. 41; presently C.C.P. art. 2.17.
          It is his duty to preserve the peace
          within
          --     his jurisdiction. . . .
C.C.P. art. 37; presently C.C.P. art. 2.13.
          In performing this duty he may, in
          meeting with resistance in the dis-
          charge of any duty imposed upon him
          by law, summon citizens of his county
          to overcome the resistance. . . ,
C.C.P. art. 38; presently C.C.P. art. 2.14.




                         p. 4192
The Honorable Gene Russell - page 2   (H-1016)


         The same statutes respecting the autho-
         rity to make arrests and execute process
         in criminal cases govern sheriffs and
         state rangers, except that state rangers
         have the power --
                         to make arrests in any county
         in
         A-- the state. . . .
(Emphasis in original).   V.T.C.S. art. 6570; presently V.T.C.S.
art. 4413(11) (4).

         Article 223, C.C.P., [presently C.C.P.
         art. 15.061, authorizing the execution
         of a warrant of arrest by a sheriff under
         the conditions stated in the article in
         any county in the state, is not deemed to
         have the effect to extend generally the
         jurisdiction of a sheriff beyond the bor-
         ders of his county. In the absence of a
         warrant of arrest issued under the provi-
         sions of article 223, supra, a sheriff as
         such is not authorized to make an arrest
         outside of his county. . . ..
              The following is taken from 2 Ruling
         Case Law. p. 469: "A public officer appointed
         as a conservator of the peace for a particu-
         lar county or municipality as a general rule
         has no official power to apprehend offenders
         beyond the boundaries of the county or.dis-
         trict for which he has been appointed * l l
         Where the sheriff of a county attempts to
         make an arrest in another county, without a
         warrant, he is usually considered as having
         only the authority which a private person
         may have in apprehending criminals. l l *"
              In the present case, the relation the
         officers bore to the search was that of pri-
         vate citizens. No conditions were present
         which would have authorized a private citizen
         to arrest appellant.
Id. at 465.
-




                          P. 4193
”   _.




         The Honorable Gene Russell - page 3    (H-1016)


              We note that every statutory phrase emphasized by the
         Henson court remains essentially intact. While article 4413(U)
         was amended in 1971, it still provides that State Rangers shall
         have the same powers and duties of sheriffs:

                   except that they shall have the power and
                   be authorized to make arrests and to execute
                   all process in criminal cases in any county
                   in the State.
         V.T;C.S. art. 4413(11) (4). The implication is that sheriffs
         have narrower territorial jurisdiction.
              In 1967 the legislature enacted article 14.01(b) of the
         Code of Criminal Procedure, which provides:
                    A peace officer may arrest an offender
                  without a warrant for any offense committed
                  in his presence or within his view.
         Article 14;01(a), formerly article 212, C.C.P., contains lan-
         guage parallel to that of article 14.01(b) but is limited to
         offenses classed as felonies and offenses against the public
         peace. Article 212 was referred'to in Henson and the court
         clearly held that outside of an officer-jurisdiction   he
         acts as a private person: see also Ward v. Texas, 316 U.S.
         547 (1942); Hooper v. DeisEi,m~    SxZd-?%63ex.     Civ. App.
         -- Amarillo 1938, no writ), thus suggesting that language
         such as that contained in article 14:01(a)-or 14.01(b) is
         insufficient to authorize a sheriff to make arrests outside
         his county.
              However, in 1968 the Court of Criminal Appeals suggested
         in dictum that the enactment of article 14.01(b) would autho-
         rize a city policeman to make an arrest outside his city.
         Buse v. State, 435 S.W.Zd 530 (Tex. Crim. App. 1968). In
         1973, article 14.01(b) and Buse were cited along with several
         well established exceptionstothe   Henson rule to uphold an
         arrest made by a policeman outside FhiTty   limits for an
                                             Green v. State, 490 S.W.Zd
         offense committed inside the city. --
         826 (Tex. Crim. App. 1973). Since the reference was not
         necessary to the court's holding it, too, is considered to
         be dictum. Ex parte Coffee, 328 S.W.Zd 283 (Tex. 1959);
         Ball v. Davis, 18 S.W.Zd 1063 (Tex. 1929); fZ$gY&;*'
         153 S.W. 1126 (Tex. 1913): Belote v. State.,
          (Tex. Crim. App. 1933). We%ve   examined the briefs submitted
         to the Court of Criminal Appeals in both Buse and Green, and




                                      p. 4194    j

                                \
The Honorable Gene Russell - page 4      (H-1016)


the possible application of article 14.01(b) was not urged
in either instance. Furthermore, article 14.01(b) and Buse
were cited by the court as merely suggesting the conclusion
rather than directly supporting it. Harvard Law Review Assoc.,
A Uniform System of Citation 86-87 (11th ed. 1967).
     While it is important to be aware of the dicta in Buse
and Green and to understand that it is possible that it may
be a-indication that the court will find that article 14.01(b)
has overturned the Henson rule, we do not believe that the
dicta in these two cases can be construed as finally resolving
the question. Accordingly, until the Court of Criminal Appeals
makes a more direct ruling on the question, we believe we must
advise you that the sheriff of one county probably has no
general authority to make arrests in another county.
     You also ask if a sheriff can make an arrest 400 yards
beyond the county line under the authority of article 13.04
of the Code of Criminal Procedure. Article 13.04, which
indicates that an offense committed within 400 yards of a
county line may be prosecuted in either county, does not
authorize a peace officer to make arrests in the 400 yard
zone in another county. See Ledbetter v. State, 5 S.W. 226
(Tex. Ct. App. 1887).    -.-
                          SUMMARY
            A sheriff should not make arrests outside
            his county for offenses committed outside
            his county except as he is authorized to
            do so as a private person under article
            14.01(a) of the Code of Criminal Procedure
            or where the offense is within an esta-
            blished exception to the Henson doctrine.
                                       truly yours,


                                     $tll
                                      .
                                Attorney General of Texas

APPROVED:




                                    P. 4195
                                         I
The HonoAble   Gene Russell - page 5   (H-1016)



C. ROBERT HEATH, Chairman
Opinion Committee
km1




                            P. 4196
