                                                 February 7,200O



    The Honorable Eddie Lucia, Jr.                    Opinion No. JC-0177
    Chair, Committee on Border Affairs
    Texas State Senate                                Re: Whether the term “national park” as used in article
    P.O. Box 12068                                    2.122, Code of Criminal Procedure, refers to any and
    Austin, Texas 7871 l-2068                         all units of National Park System (RQ-OlOl-JC)


    Dear Senator Lucia:

             You ask this office the effect of certain legislation you authored which was passed during
    the 76th Legislature.     In particular, your concern is whether Senate Bill 965’ grants to law
    enforcement officers of the National Park Service powers of arrest, search, and seizure with respect
    to state law offenses committed within the boundaries of any and all units of the National Park
    System located in the State of Texas. We conclude that, while the language of Senate Bill 965 is
    somewhat unclear and may be susceptible ofthe Park Service’s interpretation that the bill “does not
    apply to all units of the national parks system in Texas,” Letter from David A. Watts, Deputy
    Associate Solicitor, Division ofParks and Wildlife, Office ofthe Solicitor, United States Department
    of the Interior, to Elizabeth Robinson, Chair, Opinion Committee, Office of the Attorney General
    (Oct. 14, 1999) (on file with Opinion Committee) [hereinafter “Interior Letter”), the legislative
    history ofthe statute indicates that the measure was intended to apply to all such units. Accordingly,
    we read Senate Bill 965 as a grant of authority to law enforcement officers of the National Park
     Service to make arrests and to have powers of search and seizure with respect to state law offenses
    within the boundaries of any and all units of the National Park System located in Texas, however
     such units may be described.

             Senate Bill 965 amended       article 2.122 of the Code of Criminal           Procedure        by adding
    subsection (d), which reads:

                    A commissioned      law enforcement officer of the National Park
                    Service is not a peace officer under the laws of this state, except that
                    the officer has the powers of arrest, search. and seizure as to any
                    offense under the laws of this state committed within the boundaries
                    of a national park or national recreation area. In this subsection,
                    “national park or national recreation area” means a national park or


-
            ‘Act ofMay 22,1999,76th   Leg., R.S., ch. 628,§   1,1999 Tex. Gen. Laws 31X6,3187   (codified   at Twc. CODE
    GRIM. Pmt. ANN. art. 2.122(d)).
The Honorable Eddie Lucia, Jr. - Page 2            (X-0177)




                national recreation area included in the National      Park System as
                defined by 16 U.S.C. Section It(a).

TEX. CODE GRIM. PROC.ANN. art. 2.122(d) (Vernon Supp. 2000) (emphasis             added).

         A question arises as to the applicability of this definition because, while 16 U.S.C. Section
1c(a) is itself a “catch-all” provision including in its scope all units of the National Park System, the
terms “national park” and “national recreation area” are but two of the multiple designations used
by the Park System and do not themselves have the same inclusive effect. Accordingly, the scope
of the grant of authority appears ambiguous.

        As its author, you explained the intent ofthis legislation at a public hearing before the Senate
Criminal Justice Committee on April 14, 1999:

                A new national park in Cameron County, which is located in the
                southern tip of Texas, is being developed, and unfortunately the
                park’s grounds are frequented by people intent on drinking and
                loitering. Although rangers of the National Park Service are on duty
                to protect the park, they are not on the list of approved law
                enforcement officials with powers of arrest in Texas. This legislation
                would add commissioned rangers of the National Park Service to the
                approved list of federal agents with powers of arrest, search, and
                seizure. We do have a committee amendment to consider that would
                confine those powers to within the park areas. The amendment
                would address what the committee substitute would do-which would
                be to confine those powers within the park area and not outside.

Hearings on Tex. S.B. 965 Before the Senate Comm. on Crim. Justice, 76th Leg., R.S.
(Apr. 14, 1999) (statement of Senator Eddie Lucia, Jr.) (audio tape available from Senate Staff
Services).

        The digest contained in the various bill analyses of Senate Bill 965 is to the same effect as
your testimony:

                Currently, certain federal criminal investigators have powers of arrest
                and powers of search and seizure as to felony offenses only under the
                laws of the State of Texas. The list of law enforcement authorities
                includes a variety of United States agencies with jurisdiction in
                Texas. This bill would add commissioned law enforcement officers
                of the National Park Service to the approved list of federal agents
                with powers of arrest and search and seizures.
The Honorable Eddie Lucia, Jr. - Page 3            (K-0177)




SENATECOMM.ONCRIM. JUSTICE,BILLANALYSIS,Tex. Comm. SubstituteS.B.                   965,76thLeg.,R.S.
(1999).

         Senate Bill 965 refers to 16 U.S.C. Section lc(a) which provides that the National Park
System “shall include any area of land and water now or hereafter administered by the Secretary of
the Interior through the National Park Service for park, monument, historic, parkway, recreational,
or other purposes.” In our view it is clear that the reference to section lc(a) was intended, as you
indicate in your letter, “to capture all current and any future designations created by Congress under
this specific title.” Letter from Honorable Eddie Lucia, Jr., Texas State Senator, to Honorable
John Comyn, Attorney General of Texas, at 2 (Aug. 11, 1999) (on tile with Opinion Committee).

        Nevertheless, it is the view of the Solicitor’s Office of the Interior Department (the
“Department”) that the language of Senate Bill 965 does not successfully manifest this intent. In the
Department’s view, “although the intention may have been otherwise, the plain language of article
2.122 is insufficient to cover all units of the national park system which exist in Texas.” Interior
Letter, supra, at 2.

        The Department’s      position is presented rather succinctly in one paragraph:

                Article 2.122 of the Texas Criminal Code apparently references 16
                U.S.C 5 lc(a) in an effort to clarify that national park or national
                recreation area is a shorthand way of referencing any unit of the
                national park system. However, as written, article 2.1[22] does not
                accomplish that purpose.      It refers to national park or national
                recreation area as defined by lc(a). However, section lc(a) does not
                define national park or national recreation area; it defines national
                park system.

Id. (emphasis in original).

         We do not disagree with the Department that the sentence in question might have been more
felicitously worded if, for example, it had defined the areas in which jurisdiction was being granted
as any unit included in the National Park System as that system is defined by 16 U.S.C. Section
lc(a). This office, like the courts, cannot make a statute “apply to cases to which it does not apply,
without assuming functions that pertain solely to the legislative department of the government.”
Turner v. Cross, 18 S.W. 578, 579 (1892). Accordingly, we cannot simply revise a statute by fiat.
However, we are charged as well not to treat an enactment of the Texas Legislature as a nullity,
which would be the consequence of the Department’s interpretation of the definition. See Baker v.
Bell Helicopter Textron, Inc., 985 S.W.2d 272, 275 (Tex. App.-Fort Worth 1999, pet. denied)
(“[T]he legislature is not presumed to have done a foolish or useless thing.“); see also Boykin Y.
State, 818 S.W.2d 782,785 (Tex. Crim. App. 1991) (“where applicationofa          statute’splainlanguage
would lead to absurd consequences that the Legislature could not possibly have intended, we should
not apply the language literally. When used in the proper manner, this narrow exception to the plain
The Honorable   Eddie Lucia, Jr. - Page 4          (JC-0177)




meaning rule does not intrude on the lawmaking powers of the legislative branch, but rather
demonstrates respect for that branch, which we assume would not act in an absurd way.“).

         As the Department points out, pursuant to 16 U.S.C., section la-6, and the Assimilative
Crimes Act, 18 U.S.C., sections 7 and 13, “authority already exists for National Park Service law
enforcement officers to enforce state laws within the boundaries of a unit of the national park
system” when the federal government exercises either exclusive or concurrentjurisdiction.    Interior
Letter, supra, at 1. Accordingly, a grant of such authority in those circumstances would be
unnecessary.    The grant is necessary only if the Park Service’s interest in the land in question is
solely proprietary, which we are given to understand is the case with the Palo Alto Battlefield site
and perhaps six other such sites in Texas. Telephone conversation with K. C. Becker, Office ofthe
Solicitor, Department ofthe Interior (Dec., 1999). Yet, given the Department’s view that such sites
are not necessarily included within the definition in article 2.122(d) of the Code of Criminal
Procedure, SenateBill 965’s grant ofjurisdictionwould   be either supererogatoryorvoid.   We cannot
so construe the statute.

         Accordingly we construe Senate Bill 965 as a grant of the powers of arrest, search, and
seizure to enforce Texas law to commissioned National Park Service law enforcement officers within
the boundaries of any and all units ofthe National Park System, however denominated, in this state.
We note, however, that the legislative history also makes clear that this jurisdictional grant is at most
concurrent, and is limited to the enumerated powers given to such Park Service law enforcement
personnel within the boundaries of the park units. No further jurisdiction than this has, by this
statute. been ceded to the United States.
The Honorable   Eddie Lucia, Jr. - Page 5        (JC-0177)




                                        SUMMARY

                         Article 2.122(d), Code of Criminal Procedure, as enacted by
                Senate Bill 965, 76th Legislature, is a grant of the powers of arrest,
                search, and seizure to enforce Texas law to commissioned National
                Park Service law enforcement officers within the boundaries of any
                and all units of the National Park System, however denominated, in
                this state.




                                               Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General - Opinion Committee
