  -   OFFiCE   OF   THE   ATTORNEY   GENERAL   . STATE   OF   TEXAS

      JOHN      CORNYN




                                                          July 26,2002



The Honorable Mark Burtner                                            Opinion No. JC-0532
Lamar County Attorney
119 North Main Street                                                 Re: Validity of a mutual assistance agreement
Paris, Texas 75460                                                    that would permit a municipal police officer to
                                                                       answer calls in the county and outside municipal
                                                                      jurisdiction   (RQ-049%JC)


Dear Mr. Burtner:                      .

          You have asked this office a series of questions concerning the interpretation of sections
362.002 and 362.003 ofthe Local Government Code and the effect ofthoseprovisions             on a proposed
mutual assistance agreement between the Sheriffs Department of Lamar County and the Reno,
Texas Police Department. * This office does not construe contracts in the opinion process, and
accordingly would not be able to advise on the interpretation of such a document.2 Your questions,
however, concern the authority of the parties to enter into such an agreement and its jurisdictional
effects, matters upon which we can opine. In our view, subsections 362.002(a) and 362.002(b)
function independently, and subsection (b) is not conditioned, as subsection (a) is, on the existence
of “a state of civil emergency . . . because of disaster, riot, threat of concealed explosives, or
unlawful assembly.” TEX. Lot. GOV’T CODE ANN. 5 362.002(a) (Vernon 1999). A peace officer of
one jurisdiction acting under the authority of an agreement pursuant to section 362.002 who
“is in the service of [the other contracting jurisdiction] . . . is a peace officer of the latter
Ijurisdiction] . . . [and] has all the powers of a regular law enforcement officer of [that jurisdiction],”
including the power to make traffic arrests. Id. § 362.003(a).

         Subsection (a) of section 362.002 permits a county, municipality, or joint airport “by
resolution or order of its governing body” to provide “its regularly employed law enforcement
officers to assist another county, municipality, or joint airport.” Id. 5 362.002(a). The provision of
such officers, for the purpose of subsection (a) is limited to situations in which “the mayor or other
officer authorized to declare a state of civil emergency [in the other jurisdiction] considers [such]
officers necessary to protect health, life, and property . . . because of disaster, riot, threat of
concealed explosives, or unlawful assembly characterized by force and violence.” Id. Thus, a


         ‘Letter from Honorable Mark Burtner, Lamar County Attorney, to Honorable John Cornyn, Texas Attorney
General (Jan. 11,2002) (on file with Opinion Committee) [hereinafter Request Letter].

         2See, e.g., Tex. Att’y Gen. Op. Nos. JC-0355 (2001) at 3 (contract interpretation beyond purview of an attorney
general opinion); JC-0032 (1999) at 4 (contract interpretation beyond purview of this office).
The Honorable Mark Burtner       - Page 2       (JC-0532)




county, municipality, or joint airport may unilaterally send officers to another jurisdiction      under
subsection (a) only in the event of such a state of emergency as described.

          Subsection (b), on the other hand, permits a county, municipality, or joint airport to “enter
into an agreement with a neighboring Ijurisdiction] to form a mutual aid law enforcement task force
to cooperate in criminal investigations and law enforcement.” Id. 4 362.002(b). This subsection,
then, permits a mutual agreement between the jurisdictions, not the unilateral provision of aid by one
to another. Such an agreement must be made by the relevant governing bodies; the provision does
not authorize a sheriff to enter into such an agreement without the express authorization of the
commissioners court. See Tex. Att’y Gen. Op. No. JC-0263 (2000) at 6. The precise nature of the
“task force” is not defined by the statute, nor does the legislative history offer such a definition. The
Oxford English Dictionary defines “task force” as “any group of persons organized for a special
task.” XVII OXFORDENGLISHDICTIONARY656 (2d ed. 1989). This office has liberally construed the
provision in the past. See Tex. Att’y Gen. Op. No. JM-0160 (1984) at 1 (statute “authorizes one
county or municipality to provide law enforcement officers to another county or municipality in case
the latter finds itself in need of additional officers”); see also Tex. Att’y Gen. Op. No. DM-77 (1992)
at 3 (section generally “provides a mechanism for a governmental body, including a county, to offer
the assistance of its law enforcement officers to other jurisdictions”).          As we further noted in
Attorney General Opinion No. JC-0263, the authority in chapter 362, which requires authorization
by a local government’s governing body, may confer “law enforcement authority . . . upon a peace
officer” additional to that conferred by article 1403 of the Code of Criminal Procedure governing
extrajurisidictional    powers. See Tex. Att’y Gen. Op. No. JC-0263 (2000) at 6. “The statute . . .
ensure[s] and make[s] clear that peace officers are to have the same authority within the area covered
by the agreement as in the officer’s home jurisdiction.” Chavez v. State, 970 S.W.2d 679,68 1 (Tex.
App.-Eastland 1998, pet. granted), afyd 9 S.W.3d 8 17 (Tex. Crim. App. 2000). The duties of these
peace officers under the agreement are a matter for the contracting parties to decide.

         There is no restriction in subsection (b) comparable to the “state of emergency” restriction
in subsection (a); accordingly, we cannot insert one. See Fitzgerald v. Advanced Spine Fixation Sys.
Inc., 996 S.W.2d 864, 867 (Tex. 1999) (words may be added only in extraordinary situations to
effect clear legislative intent). Subsections (a) and (b) describe two different kinds of situations, and
operate independently of each other.

         You ask further whether the proposed agreement grants a “city officer, operating in the
county pursuant to the agreement, authority to make traffic stops and conduct traffic enforcement.”
Request Letter, supra note 1, at 3. Given that the parties to an agreement under section 362.002 are
in the best position to know the particular law enforcement needs to be addressed by a mutual aid
task force in their jurisdictions, the statute allows them to decide the scope of a task force agreement,
and the duties of peace officers under the agreement are consequently a matter for the contracting
parties to decide. Authority to make traffic arrests may be validly exercised by the officer under
sections 362.002 and 362.003; the investigative authority of the officer is limited to that “set forth
in the agreement.” See TEX. Lot. GOV’T CODE ANN. 5 362.002(b) (Vernon 1999).
The Honorable    Mark Burtner    - Page 3       (JC-0532)




         You note that, under article 14.03(g) of the Code of Criminal Procedure, the statute that
ordinarily governs extrajurisdictional arrests, while a municipal peace officer “who . . . is outside of
the oflcer ‘sjurisdiction may arrest without a warrant a person who commits any offense within the
officer’s presence or view,” with regard to traffic offenses only an “officer . . . listed in Subdivision
4, Article 2.12 [of the Code of Criminal Procedure]“-that       is, only Department of Public Safety
(“D.P.S.“) commissioned rangers or officers-may make such an arrest. TEX. CODEGRIM. PROC.ANN.
art. 14.03(g) (Vernon 2002) (emphasis added). While only D.P.S. rangers or officers may make
traffic arrests outside their jurisdiction pursuant to article 14.03(g), under the terms of section
362.002(c) and particularly of section 362.003(a), the officer in your hypothetical is not, in fact,
outside of his or her jurisdiction.    Section 362.002(c) permits such an officer to “make an arrest
outside the county, municipality, or joint airport in which the officer is employed but within the area
covered by the agreement.” TEX. LOC. GOV’T CODE ANN. 8 362.002(c) (Vernon 1999). Section
362.003(a) makes yet clearer the authority under which the officer does so:

               While a law enforcement officer regularly employed by one county,
             - municipality, or joint airport is in the service of another county,
               municipality, or joint airport according to this chapter, the ofBcer is
               a peace oficer of the latter [political subdivision] and is under the
               command of the law enforcement officer who is in charge in that
               [political subdivision].    The oficer has all the powers of a regular
               law enforcement off;cer of that [political subdivision] as fully as if the
               officer were in the [political subdivision] where regularly employed.

Id. 5 362.003(a) (emphasis added). Thus, the city police officer in your hypothetical, for the purpose
 of the agreement, is a county peace officer in making a traffic arrest, and does so within his
jurisdiction as defined by section 362.003(a). Ifthe stop is merely investigative, however, his power
 is limited to that “set forth in the agreement.” See id. 5 362.002(b).

         This office recently considered an analogous situation in Tex. Att’y Gen. Op. No. JC-0530
(2002). In that opinion, we were asked whether a city police officer acting as a drainage district
peace officer could make warrantless arrests within the drainage district. The relevant statutory
provision, section 49.216 of the Water Code, perrnitted the drainage district to “contract for or
employ its own peace officers.” See TEX. WATER CODE ANN. 9 49.216(a) (Vernon 2000). The
district in question had contracted under the Interlocal Cooperation Act with a city to provide such
peace officers. Attorney General Opinion JC-0530 held that such officers were, in fact, drainage
district peace officers and were within their jurisdiction in making such arrests. See Tex. Att’y Gen.
Op. No. JC-0530 (2002) at 1. Here, too, the city police officers are, under section 362.003, officers
of the county in making these traffic arrests. Accordingly, the reasoning of Attorney General
Opinion JC-530 applies here, as well. A city police officer acting under the authority of the kind of
contract contemplated by section 362.002(b) within the contracting county is, by virtue of section
362.003, a county officer for this purpose and is within his or her jurisdiction in enforcing traffic
laws.
The Honorable Mark Burtner     - Page 4      (JC-0532)




                                       SUMMARY

                        The authority of certain local governments to enter into
               mutual assistance agreements pursuant to section 362.002(b) of the
               Local Government Code is not dependent on the existence of a state
               of civil emergency. A city police officer acting within a county on
               the basis of such an agreement is, under the terms of section 362.003
               of the Local Government Code, within his or her jurisdiction when
               enforcing traffic laws in the county.




                                              Jdm      CObNYN
                                              Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General, Opinion Committee
