Mr. Joe Hesweber            Opinion Request No. I+467
County Attorney
Harris County Courthouse    Re:   Authority of sheriff and
Houston, Texas 77002              deputies under Article
                                  @Old, Section 94, Vernon's
                                  Civil Statutes, to remove
                                  automobiles left on county
Dear Mr. Resweber:                roads.
     Your opinion request contains the following two
questions:
     (1) Do the Sheriff of Harris County and his deputies
have the authority to remove an automobile from county roads
to a gara e under the conditions stated in Article 6701d,
Section 9& , Subsection (c), Paragraphs 1, 2, 3, 4, 5 and 6,
Vernon's Civil Statutes?
     (2) If the answer to the above question is in the
negative, what duties and authority, if any, do the Sheriff    -
of Harris County and his deputies have in regard to automo-
biles left on county roads under such conditions?
     The statute in question, Article 6701d, Section $1,
V.C.S., reads as follows:
          'Sec. 94.  (a) Whenever any police officer
     finds a vehicle standing upon a highway in
     violation of any of the foregoing provisions
     of this article such officer is hereby author-
     ized to move such vehicle, or require the driver
     or other person in charge of the vehicle to move
     the same, to a position off the paved or main-
     traveled part of such highway.
          "(b) Whenever any police officer finds a
     vehicle unattended upon any bridge or causeway or
     in any tunnel whe.resuch vehicle constitutes an
     obstruction to traffic, such officer is hereby
     authorized to provide for the removal of such
     vehicle to the nearest garage or other place of
     safety.

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Mr. Joe Resweber, page 2   (M-467)




          "(c) Any commissioned member of the
     Department of Public Safety is hereby author-
     ized to remove a vehicle from a highway to
     the nearest garage or other place of safety,
     or to a garage designated or maintained by the
     governmental agency of which the officer is a
     member, under the circumstances hereinafter
     enumerated:
          "1. When any vehicle is left unattended
     upon any bridge, viaduct or causeway, or in any
     tube or tunnel where such vehicle constitutes
     an obstruction to traffic;
          "2 . When any vehicle is illegally parked
     so as to block the entrance to any private
     driveway and it is impracticable to move such
     vehicle from in front of the driveway to another
     point on the highway;
          “3 .   When any vehicle is found upon a high-
     way and report has previously been made that
     such vehicle has been stolen or complaint has
     been Filed and a warrant thereon issued charging
     that such vehicle has been embezzled;
          “4 . When any such officer has reasonable
     grounds to believe that any vehicle has been
     abandoned;
          “5.  When a vehicle upon a highway is so
     disabled that its normal operation is impossible
     or impractical and the person or persons in charge
     of the vehicle are incapacitated by reason of
     physical injury or other reason to such an extent
     as to be unable to provide for its removal or
     custody, or are not in the immediate vicinity of
     the disabled vehicle;
          “6.  When an officer arrests any person
     driving or in control of a vehicle for an alleged
     offense and such officer is by this code or other
     law required to take the person arrested immedi-
     ately before a magistrate.
          "(d) Any commissioned member of the Department
     of Public Safety is hereby authorized to remove


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Mr. Joe Resweber, page   3,   (M-467)


     any vehicle parked or standing in or on any
     portion of a highway when, in the opinion of
     the said member of the Department of Public
     Safety, the said vehicle constitutes a hazard,
     or interferes with a normal function of a
     governmental agency, or by reason of any catas-
     trophe, emergency or unusual circumstance the
     safety of said vehicle is imperiled."
     Article 6701d contains the following definitions:
          (1) Police officer: "Sec. 11. Every
     officer authorized to direct or regulate traffic
     or to make arrests for violations of traffic
     regulations."
          (2) Highway: "Sec. 13.    (a) Street or
     Highway. The entire width between the boundary
     lines of every way publicly maintained when any
     part thereof is open to the use of the public
     for purposes of vehicular travel."
     Article 6701d contains no definition of a commissioned
member of the Department of Public Safety, but Article
4413(7), Vernon's Civil Statutes, provides that the Director
of the Department of Public Safety shall issue commissions
as law enforcement officers to members of the Texas Rangers,
members of the Texas Highway Patrol, land to other officers
as may be employed by the Department of Public Safety. No
provision is made for commissioning sheriffs and deputies
as law enforcement officers of the Department of Public
Safety. Sheriffs, constables, and police chiefs are made
associate members of the Department of Public Safety by
Article 4413(19), Vernon's Civil Statutes, and are entitled
to rights and privileges granted by the Department. The
statute lists no rights and privileges, however. Article
b&13(19) does not grant to sheriffs and deputies the authority
to act as commissioned law enforcement officers of the Depart-
ment of Public Safety.
       This office interprets the first question as asking
whether the sheriff end his deputies have the authority to
act under Article 6701d, Section g&(c). The grant of authority
to remove vehicles under that Section is directed to commis-
sioned   members of the Department of Public Safety and does not
extend to sheriffs and deputies, since sheriffs and deputies



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Mr. Joe Resweber, page 4, (M-467)


are not commissioned members of the Department. Thus,
the answer to the first question is that sheriffs and
deputies have no authority to act under Article 6701d
Section 94(c). This answer applies also to Section 9&(d).
     Sheriffs and deputies do have authority under some
of the conditions outlined in Article 6701d,  Section 94(c).
Section 94(a) and Section 94(b) of Article 6701d provide
authority for removal of automobiles by any police officer,
including sheriffs and deputies, whenever the conditions
stated therein are met. A sheriff or deputy can act under
Section 94(b) to remove a car parked under conditions out-
lined in Section 94(c)(l) to the nearest garage or other
place of safety. The vehicles Found under the conditions
outlined in Section 94(c)(2), (4), (5),  and (6) can be
moved off the paved or main-traveled portion of the highway
under the authority of Section 94(a).
     Sheriffs and deputies have the authority to remove a
motor vehicle from a public road when they have probable
cause to believe it has been stolen. Sheriffs and deputies
are designated as peace officers by Article 2.12, Vernon's
Code of Criminal Procedure, and are given the duty and
authority to preserve the peace by all lawful means in
Article 2.13, Article 2.17, and Article 2.20, Vernon's Code
of Criminal Procedure. Peace officers may seize illegally
acquired vehicles under a search warrant issued pursuant
to Article 18.01, et seq., Vernon's Code OF Criminary Pro-
cedure. In addition, Article 18.22,  Vernon's Code of
Criminal Procedure, authorizes any person to prevent the
consequences of theft by seizing stolen property and turning
it over to a peace officer or magistrate. Disposition of
stolen property is made according to Article 47.01, et seq.,
Vernon's Code of Criminal Procedure.
     Under Section 94(a) sheriffs and deputies are authorized
to move vehicles to a position off of the paved and main
traveled part of the highway under conditions defined in
Section 93.  Also, under Section 94(b) sheriffs and deputies
may move a vehicle to the nearest garage or other place of
safety if it is found unattended upon a bridge, causeway,
or tunnel and constitutes an obstruction to traffic. There-
fore, sheriffs and deputies can react to certain of the
conditions enumerated in Section 94(c) but only under the
authority and within the limitations prescribed in Section
p&(a) or Section 94(b), as the case may be. For example, a



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Mr. Joe Resweber, page 5,   (~-467)



sheriff or deputy has the same authority under Section
p&(b) as a commissioned member of the Department of Public
Safety with respect to the conditions described in Section
94(c)l, relating to unattended vehicles on bridges, viaducts
and tunnels.
     Further bearing on your second question, we are of the
opinion that the Commissioners Court of Harris County may,
by proper order, grant to the Sheriff of Harris County and
his Deputies the same authority with respect to vehicles on
the county roads of Harris County as is granted to commis-
sioned members of the Department of Public Safety under
Section 94(c) and (d) of Article 6701d.
     Under Article 2351, Vernon's Civil Statutes, the Commis-
sioners Court has general control and jurisdiction OF county
roads, and it is the trustee of such roads for the benefit
of the public. Hill Farm, Inc. v. Hill County, 436 S.W.Zd
320 (Tex.Sup. lgbp). In the y;ll Cyg~    =geii;;~;gi-;;$l
Farm, Inc., had placed a pipe me w
of a county road without permission of the Commissioners
Court of Hill County. The court held that the Commissioners
Court had the power to require the removal of the pipeline
from the right-of-way, even though the pipeline did not
interfere with the maintenance or use of the road.
      Section 27 (a) and 1 of Article 6701d is as follows:
           "(a) The provisions of this Act shall not
      be deemed to prevent local authorities with respect
      to streets and highways under their jurisdiction
      and within the reasonable exercise of the police
      power from:
           "1. Regulating the standing or parking of
      vehicles; . . ."
      Section 12 of Article 6701d defines a local authority
as:
           "Every county, municipal, and other local
      board or body having authority to enact laws
      relating to traffic under the constitution and
      laws of this state."
     In Section 169 of Article 6701d Commissioners Courts are
authorized to establish maximum prima facie speed.limits on


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Mr. Joe Resweber, page 6,   (M-467)


county roads outside the limits of the state highway
system. And, under Article 6701g, Vernon's Civil Statutes,
the Commissioners Court of any county having a population
of 150 000 or more (which includes Harris County, of
courseI may establish restricted traffic zones on county
roads. Thus, although the authority is limited, the Commis-
sioners Court of Harris County is a local body having
authority to enact laws relating to traffic and is therefore
within the definition of "local authorities" as used in
Section 27.  Our reasoning concludes with the proposition
that the power to regulate the standing or parking of vehicles
on county roads incidentally includes the power to assign to
sheriffs end deputies of the county the rights and duties
described in Section 94(c) and (d).

                        SUMMARY
     The Sheriff of Harris County end his De uties
     have no authority to act under Article % 701d,
     Section 94(c), V.C.S., but can act in the manner
     and under the circumstances provided in Section
     94(a) and lb). The Sheriff end his Deputies can
     remove a vehicle under the authority of a war-
     rant or when they have probable cause to believe
     the vehicle has been stolen or when they are
     acting pursuant to a lawful arrest of the driver
     or person in control of the vehicle. The Commis-
     sioners Court of Harris County may, by proper
     order, grant to the Sheriff of Harris County and
     his Deputies the same authority with respect to
     vehicles on the county roads of Harris County as
     is granted to commissioned members of the Depart-
     ment of Public Safety under Section 94(c) and (d)
     of Article 6701d.




                                        General of Texas
AW:dc
Prepared by Alfred Walker
Assistant Attorney General



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Mr. Joe Resweber,   page   7, (M-467)


APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Jim Broadhurst
Rick Fisher
Malcolm Quick
James McCoy
MEADE F. GRIFFIN
Staff Legal Assistant
HAWTHORNE PHILLIPS
Executive Assistant
NOLA WHITE
First Assistant




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