                           @ffice of tip Bttornep QBeneral
                                    &ate of fEexa$
DAN MORALES                              January 23.1992
 *TTORNEY
      GENERAL



    Honorable Mark H. Dettman                         Gpiioa No. DM-77
    Midland County Attorney
    P. 0. Box 2559                                    Re: Authority of a sheriff to conduct
    Midland, Texas 79702                              investigations and make arrests outside
                                                      his county, and related question
                                                      (RQ-169)

    Dear Mr. Dettman:

           You have requested our opinion regarding the authority of the Midland
    County Sheriff to engage in law enforcement activities outside Midland County.
    You indicate that the sheriff believes “he is entitled to conduct hi law enforcement
    operations anywhere in the State of Texas as well as in other states, which in this
    case have included Arizona, Oklahoma, Indiana, and Illinois.” The activities involve
    “reverse-sting” operations “in which law enforcement agents pose as drug dealers
    and agree to sell confiscated narcotics to willing buyers.” After funds from sale of
    the drugs are seized, “these seized funds are forfeited to the sheriffs department
    and other arresting agencies.”


           Article 5, section 23. of the Texas Constitution provides that the “duties and
    prerequisites, and fees of office [of sheriff], shall be prescribed by the Legislature.”
    Pursuant to such authorization, article 2.17 of the Code of Criminal Procedure
    declares, “Each sheriff shall be a conservator of the peace in Iris county.” (Emphasis
    added.)

            In Attorney General Opinion H-1016 (1977), this office was asked whether a
    sheriff was authorized to make a warrantless arrest outside his county, where the
    offense is committed in his presence or within his view.1 Relying primarily on


           hrrcst uodcr warrantextends 30 any part of the State; and any peace officer to whom said
    warrantis directed,or into whose hamis the same has km transferred,shall be authorized to -tc
    the Sam0in anycouolyin thisstate.’code trim. Proc art. t5.oL5.



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Honorable Mark H. Dettman - Page 2                     (DM-77)




Hemon v. State, 49 S.W.2d 463 (Tex. Grim App. 1932), the opinion concluded that
a sheriff, outside his county, had no more authority than did a private individual to
make warrantless arrests.2 In Henson, the court had declared:

           In the absence of a warrant of arrest issued under the provisions
           of article 223, supra [now article 15.06 of the Code of Criminal
           Procedure], a sheriff as such is not authorized to make an arrest
           outside of his county.


49 S.W.2d at 465. Furthermore, the court said that the statutes


           evidence the intention of the Legislature to confine the
           jurisdiction of the sheriff to his county, except in so far as the
           authority to execute warrants of arrest in any county of the state
           is conferred by article 223, [Code of Criminal Procedure].

Id.

        Subsequent to the issuance of Attorney General Opinion H-1016, the
legislature enacted section (d) of article 14.03 of the Code of Criminal Procedure.
That statute provides:

                A peace officer who is outside his jurisdiction may arrest,
           without warrant, a person who commits an offense within the
           officer’s presence or view, if the offense is a felony or a violation
           of Title 9, Chapter 42, Penal Code [disorderly conduct and
           related offenses]. A peace officer making an arrest under this
           subsection shall, as soon as practicable after making the arrest,
           notify a law enforcement agency having jurisdiction where the
           arrest was made. The law enforcement agency shall then take
           custody of the person committing the offense and take the
           person before a magistrate in compliance with Article 14.06 of
           this code.


         2Article 14.01(a) of the Code of Criminal Procedure states, “A peace of&&r or any other
person, may, witbout a warrant,arrest an offender when the offense is committed io his Presence or
within his view, if the offense is one classifiedas a felony or as an offew against the public peace..”



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Honorable Mark H. Dettman - Page 3                    (DM-77)




The question before us is whether the enactment of section (d) of article 14.03
extended the authority of a sheriff to initiate investigations and make arrests outside
his county.

        Article 14.03(d) in fact makes clear that a peace offtcer’s authority is, in
general, .&n&f to his geographical jurisdiction. On its face, article 14.03(d) grants
to a sheriff no authority beyond that already conferred by article 14.01(a). See note
2, SZQM.~ h our opinion, the purpose of article 14.03(d) is to make clear that a
peace officer need not sit idly by while a felony is committed in his plain view. The
statute provides, however, that the appropriate law enforcement agency of the
foreign jurisdiction is to be brought in as soon as is practicable. In our view, the
thrust of article 14.03(d) is to define rather narrowly the limits of a peace officer’s
authority outside his own jurisdiction.

      This conclusion is buttressed by a number of other statutes. Section
411.009(b) of the Government Code, for example, provides that the director of the
Department of Public Safety

            may require a sheriff or other police officer in a county or
            municipality, within the limits ofthe officer’sjr&%&on, to aid or
            assist in the performance of a duty imposed by this chapter.
            (Emphasis added.)

Section 411.022(a) of the Government Code contrasts the authority of an officer of
the Texas Rangers with that of a sheriff:

               An officer of the Texas Rangers is governed by the law
           regulating and defining the powers and duties of sheriffs
           performing similar duties, except that the officer may make
           arrests, execute process in a criminal case in wry county.
           (Emphasis added.)

      Furthermore, chapter 362 of the Local Government Code provides a
mechanism for a governmental body, including a county, to offer the assistance of its
law enforcement officers to other jurisdictions. Such authorization would not be

        3Article 14.01(a)permits a   warrantless arrest for any felony or “offense against the public
peace,” while article 14.03(d) authorizes arrest for any felony or violation of the disorderly conduct
statutes.



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Honorable Mark H. Dettman - Page 4           (DM-77)




necessary if a sheriff’s general authority extended beyond his county.        S&on
362.002 provides:

              (a) A county, municipality, or joint airport may, by
         resolution or order of its governing body, provide for, or
         authorize its chief administrative officer, chief of police, or
         marshal to provide for. its regularly employed law enforcement
         officers to assist another county, municipality, or joint airport.
         This assistance may be provided only when tbe mayor or other
         officer authorized to declare a state of civil emergency in the
         other county, municipality, or joint airport considers additional
         law enforcement officers necessary to protect health, life, and
         property in the county, municipality, or joint airport because of
         disaster. riot, threat of concealed explosives, or unlawful
         assembly characterized by force and violence or the threat of
         force and violence by three or more persons acting together or
         without lawful authority.

              (b) A county, municipality, or joint airport may, by
         resolution or order of its governing body, enter into an
         agreement with a neighboring municipality, joint airport, or
         contiguous county to form a mutual aid law enforcement task
         force to cooperate in criminal investigations and law
         enforcement. Peace officers employed by counties, municipalities,
         or joint airportscovered by the agreement hove or@ the oddidonal
         investigativeauthority throughout the region (LTset forth in the
         ugreement. The agreement must provide for the compensation
         of peace officers involved in the activities of the task force.

              (c) A law enforcement officer employed by a county,
         municipality, or joint airport that is covered by the agreement
         may make an arrest outside the county, municipality, or joint
         airport in which the officer is employed but within the area
         covered by the agreement. The law enforcement agencies of the
         area where the arrest is made shall be notified of the arrest
         without delay, and the notified agency shall make availablt the
         notice of the arrest in the same manner as if the arrest were
         made by a member of that agency. (Emphasis added.)



                                      p.   386
 Honorable Mark H. Dettman - Page 5                     (DM-77)




 Section 362.003(a) provides that during the time in which a law enforcement officer
 regularly employed by one jurisdiction is in the service of another political
 subdivision, he has “all the powers of a regular law enforcement officer” of that
 political subdivision. In our opinion, the existence of chapter 362, enacted in 1987,
 makes clear beyond all doubt that a sheriff does not have any general authority to
 conduct investigations outside hi county. His authority to make arrests outside his
 county is limited by the conditions imposed in article 14.03(d) of the Code of
 Cdminal Procedure.

        We note that at least one court, in a decision issued after the enactment of
article 14.03(d). has confirmed this conclusion. In Lundrum v. State. 751 S.W.2d 530
(Tex. App.-Dallas 1988. pet. refd), the court held that a city peace officer’s
jurisdiction to investigate crime extends throughout the county as does his
jurisdiction to arrest. In dicta, the court said that “[a] county sheriff’s jurisdiction is
county-wide.” Id at 531. We believe that the court’s emphasis on “investigate,” as
well as “arrest,” is significant, and confirms our view that the general power of
investigation granted to a sheriff is limited to the jurisdiction for which he was
elected: the county. Since the authority of a sheriff to investigate crime is generally
limited to his county, it is clear that he can exercise no such authority outside the
State of Texas?

       You also inquire about the proper disposition of funds seized by the sheriff
while operating in areas outside Midland County. Chapter 59 of the Code of
criminal Procedure, enacted in 1989, describes the procedures for the forfeiture of
contraband. Article 59.06 provides for the disposition of forfeited property. Section
(a) thereof declares that “[a]11forfeited property shall be administered by the
attorney representing the state, acting as the agent of the state.” The forfeited
property must be administered in accordance “with the provisions of any local
agreement entered into between the attorney representing the state and law
enforcement agencies.” Id. We have been informed that an agreement exists



          ‘Article 14.051 of the Code of Crimhal Procedure autbrkes a peace officer who is
,”ccmmissioocd and authorizedby another state to make arrestsfor felooies”to make an arrestin Texas
 wkn the officer‘lsin freshpursuit’of a suspected felon. As of 1991,42 other states and the Diitrict of
 Columbia, including all of the. states borderingTexas, have adopted simii statutoryprovisioos, thus
 cmphasiziq that a peace officer may make ao arrest outside his home state only under spe&cally
 reslrictcdclrcumstanccs. Texas is also a partyto the Uniform Crimiial ExtraditionAct, article 5l.U.
 Code of CZmiaal Procedure.




                                               p.    387
Honorable Mark H. Dettman - Page 6                   (DM-77)




between the attorney for the stat@ and the Midland County Sheriffs Office.
Sections (b), (c), and (d) of article 59.06 furnish a detailed description of the
procedures that must be followed when an agreement exists.

        We have not been furnished with a copy of the existing agreement between
the sheriff and the relevant prosecutor. The provision for a “local agreement”
specified in article 59.06 requires such an agreement between the prosecuting
attorney “in the county in which a forfeiture proceeding is held” and the law
enforcement agency. If no “local agreement” controls, section (a) provides that any
seized property “shall be sold on the 75th day after the date of the final judgment of
forfeiture at public auction under the direction of the county sheriff.” Any proceeds
resulting from such sale must be distributed as follows:

               (1) to any interest holder to the extent of the interest
           holder’s nonforfeitable interest; and

               (2) the balance, if any, after deductions of all storage and
           disposal costs, to be deposited not later than the 39th day after
           the date of the sale in the state treasury to the credit of the
           general revenue fund.

       Since there appears to have been no authority for the sheriff to have seized
the funds in question in the first place, we will not speculate on their proper
disposition. We cannot, however, imagine any basis for the position of the
commissioners court that funds seized in out-of-county operations, including those
outside the State of Texas, should be deposited in the general fund of Midland
County. In any event, the proper disposition of funds resulting from a forfeiture
based on the extra-jurisdictional activities of a sheriff requires the resolution of a
nmber of fact questions that cannot be addressed in the opinion process.

                                      SUMMARX

                A sheriff has no general authority to investigate criminal
           activities outside of the geographical boundaries of the county
           for which he is elected. His authority to make warrantless


        SAttorney representingthe state”is defmed for purposes of chapter59 as “theprosecutorwith
felonyjurisdictionin the county in which a forfeitureproceedingis held under this chapter.’



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Honorable Mark H. Dettman - Page 7         (DM-77)




         arrests outside his county is circumscribed by the conditions
         imposed in article 14.03(d) of the Texas Code of Criminal
         Procedure.




                                                DAN      MORALES
                                                Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARYKELLBR
Deputy Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General




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