I       .




                                 October 11, 1968

Honorable W. C. Lindsey                         Opinion No. M-285
Criminal District Attorney
Jefferson County Courthouse                     Re:   Authority of Sheriff and
Beaumont, Texas                                       Constables to serve Criminal
                                                      and Civil process in com-
                                                      mercial plants or aboard
Dear Mr. Lindsey:                                     vessels.
       You request the opinion of this office on the following
questions:
            "1. Does a Constable or a Sheriff have the authority
                to go aboard a vessel which is tied up to a dock
                within his county to serve criminal or civil pro-
    ,           cess, if the Captain of said vessel refuses to
                allow him to come aboard?" you request an answer
                to this question as to both merchant and naval
                vessels.
            "2* Does a Constable or a Sheriff have the authority to
                go into an enclosed commercial plant, such as a re-
                finery, to serve criminal or civil process, if com-
                pany personnel refuses to allow him past the enclosure?
                The enclosure referred to in sedond question is
                usually a Hurricane fence with a gate patrolled by
                company guards through which all traffic passes."
            "3.   If it is determined that Sheriffs and Constables have
                  authority to go into plants or aboard vessels, 'then;
                  what are the penalties for those who interfere and
                  attempt to prevent him from serving the process.”
       The first question entails a consideration of state jurisdiction
over both foreign and domestic merchant and naval vessels.
       State jurisdiction over domestic merchant and naval vessels
is limited, but not excluded by the United States Constitution and
federal laws pursuant thereto.




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Honorable W. C. Lindsey, Page 2 (M-285)


         As to domestic merchant vessels, Article III, Section'2,
Clause 1 of the Mited States Constitution provides "that the
judicial power shall extend . . .to all cask of admiralty and
maritime   jurisdiction. . ."
       Congress has exercised this power over admiralty as found
in 28 U.S.C.A. S1333:
          "The district courts shall have original
       jurisdiction, exclusive of the Courts of the
       State of:
          "(1) Any civil case of admiralty or maritime
       jurisdiction, saving to suitors in all cases all
       other remedies to which they are otherwise entitled."
       However, as stated in 2 Am.Jur.2d, Admiralty, S7, page
724:

           "The paramount power of Congress, although it
        excludes interference by state legislation with
        its exercise, is merely a limitation on the power
        of the states. There is a broad recognition of
        the authority of the states to create rights and
        liabilities with respect to conduct within their
        borders, where the state action does not run
        counter to federal laws or the essential features
        of exclusive federal jurisdiction. On the whole,
        it may be said that where the particular maritime
        subject is national in character, only Congress
        can legislate, but where the subject is local the
        states may legislate so long as their legislation
        is not inconsistent with valid federal legislation
        and does not interfere with the proper harmony or
        uniformity of federal law in its international or
        interstate operation. Thus, a state may legislate
       ,on such matters as liens for claims arising from
        repairs of vessels within the ports of the state,
        port regulations and safety in local harbors, and
        torts committed by vessels within such ports. A
 ,      state may also levy a business license or sales
        tax on transactions conducted on vessels operated
        on a river within the boundaries of the state."




                                                  .   .
Honorable W. C. Lindsey, Page 3 (M-285)


In accord, 2 C.J.S., Admiralty,,S6, p. 70; Toomer v. Southwest
Casualty Company, 231 F.Supp. 542 (S.D. Galveston Div., 1964)
  d Fuentes v. Gulf Coast Dredging Co., 54 F.2d 69 (C. C.A. 5th
EL., 1931).
       Federal courts have affirmed the constitutionality of
state non-resident watercraft statutes, and in Franklin v. Tomlinson
             158 F.Supp 850, (Ill, 1957);'the fiederal court upheld
=EP-
iur 8 iction over a Delaware Corooration where service of Drocess
had been on the Illinois Secretaky of State. See also coyie v. Pope
& Talbot, Inc., 207 F.Supp. 685 (E.D, Pa. 1962).
       State jurisdiction over domestic naval vessels is limited
by Article 1, Section 8, of the United States Constitution, which
empowers Congress to "provide for the common defense", "to provide
and maintain a Navy", "to make rules for the government and regula-
tion of the land and naval forces", and "to make all laws which
shall be necessary and proper for carrying into execution the
foregoing powess. a e'
       The above enumerated Dower and the doctrine of federal
supremacy, as declared in M&lloch   v. Maryland, 14'U.S. (4 Wheat.)
316, 4 L-Ed. 579 (1819), prevent service of civil and criminal
process aboard a United States naval vessel over the objection of
its Captain,
       Congress has provided in the Uniform Code of Military Justice,
10 U.S.C.A. S814, the appropriate method by which a state may assert
its jurisdiction (see Annotation 135 A.L.R. 11) over persons in
military service:
          "(a) Under such regulations as the Secretary
       concerned may prescribe, a member of the armed
       forces accused of anoffense against civil
   .:; authority may be delivered upon request to the
       civil authority for trial."
       The basic law governing the question of jurisdictional immunity
for foreign merchant and naval vessels was laid down by'chief Justice
Marshall in The Schooner Exchange v. McFadden, 11 U.S. (7 Cranch)
287 (1812% :

          "A clear distinction is to be drawn between the
       rights accorded to private individuals or private
       trading vessels, and those accorded to public armed




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Honorable W. C. Lindsey, Page 4 (M-285)


       ships which constitute a part of the military force
       of the nation.
          "When private individuals of one nation spread
       themselves through another as business or caprice
       may direct, mingling indiscriminately with the inhab-
       itants of that other, or when merchant vessels enter
       for the purposes of trade , it would be obviously in-
       convenient and dangerous to society, and would subject
       the laws to continual infraction and the government
       to degradation, if such individuals or merchants did
       not owe temporary and local allegiance, and were not
       amenable to the jurisdiction of the country. Nor can
       the foreign sovereign have any motive for wishing
       such exemption. His subjects thus passing into
       foreign countries, are not employed by him, nor
       are,they engaged in national pursuits. Consequently,
       there are powerful motives for not exempting
       persons of this description and no one motive
       for requiring it. The implied license, therefore,
       under which they enter, can never be construed to
       grant such exemption."
       But where a vessel is used for commercial or private activity
by a foreign government, the courts defer to a determination by the
United States Department of State as to whether an immunity..will...,
be recognized. Sovereign immunity is a political or diplomatic
problem rather than a legal one. Immunity is now "recognized with
respect to sovereign or public acts (jure imperii) of a state but
not with regard to the private acts (jure gestionis)." Ocean Transport
Co. v. Government of Republic of Ivory Coast, 269 F.Supp. 703, 705
(1967).
       In accord with the basic principle of foreign merchant vessels
being amenable to State jurisdiction, a federal court in Tardiff v.
Bank Line, 127 F.Supp. 945, (La., 19541, refused to set aside service
on the Louisiana Secretary of State under the state..watercraftstatute.
The Court affirmed federal court jurisdiction over a British corpora-
tion in an action under state law for the death of a Louisiana
resident from'injuries sustained on the defendant's steamship 'while
at a dock in Louisiana.
       As to naval vessels, Chief Justice Marshall stated a different
rule in The Schooner Exchange case, supra:
Honorable W. C. Lindsey, Page 5 (M-285)



          "But in all respects different is the situation
       of a public armed ship. She constitutes a part of
       the military force of her nation; acts under the
       immediate and direct command of the sovereign; is
       employed by him in national objects. He has many
       powerful motives for preventing those objects from
       being defeated by the interference of a foreign
       state. Such interference cannot take place without
       affecting his power and his dignity. The implied
       license, therefore, under which such vessel enters
       a friendly port, may reasonably be construed, and,
       it seems to the court, ought to be construed, as
       containing an exemption from the jurisdiction of
       the sovereign, within whose territory she claims
       the rights of hospitality."
       Because the State of Texas lacks jurisdiction it is clear
that a Constable or Sheriff does not have authority to go aboard
a foreign naval vessel to serve criminal or civil process. Nor
may such process be served upon a merchant vessel operated by
a foreign sovereign if the Department of State recognizes an
immunity for it.
       As to other merchant vessels, both domestic and foreign,
there are no such inherent prohibitions unless the law 'of the
State of Texas is such as to forbid service of process if the
captain refuses permission to-board.
       Article 1407a, V.A.C.S. states as follows:.
       "Art. 1407a.   Entry on boat, vessel, ship or other
                      watercraft without consent of owner.
          "Section 1. It shall be unlawful for any person,
       without the consent of the owner or other person in
       charge thereof, to enter upon the boat, vessel, ship.
       or other watercraft of another, whether or not such
       watercraft is documented or required to be numbered
       or registered by or under the laws of the United States
       or of the State of Texas or of any other state, nation,
       country, or political entity whatsoever, while such
       boat, vessel, ship, or other watercraft is on any of
       the 'coastal waters' as defined in Section 3(a),




                                          ?
Honorable W. C. Lindsey, Page 6 (M-285)


      Chapter 340, Acts of the 58th Legislature, 1963, or
      on any channel, turning basin, or other body of water
      whatsoever in the State of Texas, and whether or not
      such boat, vessel, ship, or other watercraft be docked
      in passage, or otherwise.
         "Section 2. Any violation of Section 1 of this Act
      shall constitute a misdemeanor , and for the first con-
      viction of such a violation the punishment shall be by
      a fine of not more than $200, but for a second or sub-
      sequent conviction the punishment shall be by fine of
      not less than $50 or more than $SOO,,or by confinement
      in the county jail for not more than three months, or
      by both such fine and imprisonment.
         "Section 3. Any person found upon the boat, vessel,
      ship, or other watercraft of any kind or character of
      another under circumstances which reasonably indicate
      that he entered upon it without the consent of the
      owner or other person in charge thereof shall be subject
      to.arrest by any city policeman, constable, sherif,f,
      highway patrolman, ranger, game warden, or any other
      officer in the State of Texas, or by the deputy of any
      of them, without a warrant, and any such peace officer
      is hereby empowered to make such an arrest.'
       Section 3 of Article 1407a indicates that it was not the
intent of the legislature to include peace officers within the
purview of the "any persons" of Section 1. To hold otherwise would
be to ascribe to the legislature the intent to create a sanctuary
for those who would frustrate orderly processes of law enforcement
and to empower peace officers to arrest such persons but to
deny them entry to exercise that power.                ..
       The authority of a Constable or Sheriff to serve civil or
criminal process aboard domestic or foreign merchant vessels
over the objection of the Captain is the same as in an enclosed
commercial plant--the subject of your second question.
       With reference to service of civil process, it in recognized
that an officer has no right to breakinto or otherwise forcibly
enter a dwelling house.
          "In the eye of the law, it is better that the
       execution of the process should be delayed, and
       that the officer should remain without, waiting,



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Honorable W. C. Lindsey, Page ~7 (M-285)


       a favorable opportunity for the accomplishment
       of his purpose, than that he should enter with
       force and violence, against the wishes and pro-
       tests of the householder, thus tending to breaches
       of the peace and the destruction of the security
       and tranquility of the home by exposing it to
       attack from without. The rule is not intended
       to secure immunity against service of process
       but rather to afford protection to the home and
       family." 42 Am.Jur., Process, 38, pB 34;
       Hillman v. Edwards! 66 S.W. 788 (Tex.Civ.App. 1902,
       no writ).
       A pertinent statement of the law is found in 52 Tex. Jur.2d,
Sheriffs, Constables, etc., Set, 30, as follows:
          "In the absence of statutes specially authorizing
       it, an officer may not break open an outer door nor-
       forcibly enter the dwelling house of a debtor
       for the purpose of a necessary levy. Such an entry
           in law, a trespass; the officer loses the
       ;Ztection of the writ, and he is no longer invested
       with the right to use reasonable force in executing
       it. This rule is applicable though the officer had ..   '
       previously entered through an unlocked door.and,
       return'edmerely for the purpose,of completing
       the levy...Rut if lawful means are employed to              ..
       effect the seizure, the officer,,mayuse force
       sufficient to overcome the force used,by the defen-
       dant in attempting to resist the levy. In the
       event of such action the presumption is that any
       force used was necessary for theEperformance of the'
       official duty, and the burden is on the plaintiff
       to show the contrary.'
       A "home and family" enjoy a status of "tranquility"
and "protection" which is not extended to a non-dwelling, such
as an enclosed commercial plant and its employees or a merchant
vessel and its crew. The treatise, Freeman on Execution, S256 -
Of the Right to Break Inner and Outer Door to Make a Levy, p. 813,
quotes Stearnes v. Vincent, 50 Mich. 209; 45 Am.Rep. 37, for, the
proposition that force may be used on business premise8 to serve ,,
civil process:




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                                                           .




Honorable W. C. Lindsey, Page 8 (M-288):


         "A building may be occupied partly as a dwelling
      and partly for business purposes, as where the
      occupant conducts a store for the sale of merchandise
      in a room fitted up for that purpose, and resides
      with his family in other parts of the building. In
      such cases the whole building is not regarded as
      a dwelling; and even though the two parts are
      approached through a common door, this door may,
      be broken for the purpose of seizing goods in the
      store."
       The treatise continues with a quote from Haggerty v. Wilber,
16 Johns. 288; 8 Am. Dec. 321:
         "'The privilege which the law allows to a man's
      habitation, and which precludes the sheriff from
      entering, unless the outer door be open, either ~to
      arrest the party or to take his goods on execution,
      does not extend to a store or barn disconnected
      from the dwelling-house, and forming no part of
      the curtilage.' It has always been claimed that
      the refusal of the law to permit an officer to
      break into the debtor's dwelling to levy an exeoution      II
      arises not from its wish to shield the property,
      but solely because of its desire to preserve the
      sanctity of the dwelling. If this claim is well
      founded, we should suppose that the dwelling
      would be equally preserved from intrusion when the
      writ is against a stranger, as well as when against
      the owner. But this supposition is not supported
      by the authorities. An officer may enter the house
      of A for the purpose of~levying.,uponB's goods which
      are therein. A forcible entry must not be made
      until a demand to open the doors has been met with..
      a refusal to comply. And the right to enter depends
      on the,fact of B's goods being in the house. If
      they are not there'the officer cannot justify his    "
      entry. He is a trespasser. When the officer has        '
      once lawfully entered the outer door, the sanctity
      of the dwelling, as regards that writ under which
      the entry was made, is dettroyed. The door cannot
      now be closed upon him.
       The Texas Code of Criminal Procedura expressly provides
for the use of force or violence in making arrests and in executing
search warrants:



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Honorable W. C. Lindsey, Page 9 (M-285)


            Art.. 15.24 - "In making an arrest, all reasonable
         means are permitted to be used to effectit.    No
         greater force, however, shall be resorted to than
         is necessary to secure the arrest and detention of
         the accused."
            Art. 15.25 -"'In case of felony, the officer may
         break down the door of any house for the purpose of
         making an arrest, if he be refused admittance after
         giving notice of his authority and'purpose."
             Art. 18.17 - "In the execution of a search warrant,
         the officer may call to his aid any number of citi-
         zens in his county, who shall be bound to aid in'the
         execution of the same. If he is resisted in the exe-
         cution of the warrant, he may use such force as is
         necessary  to overcome the resistance, but no greater."
            Art. 18.18 - "In the execution of a search warrant,
         the officer may break down a door or a window of any
         house which he is ordered to search, if he cannot
         effect an entrance by other less violent means; but
         when the warrant issues only for the purpose of din-,
         covering property stolen or otherwise obtained in
         violation of the penal law, without designating any
         particular place where it is supposed to be concealed,
         no such authority is given to the officer executing
         the same."
       You are therefore advised that a Constable or Sheriff, after
properly identifying himself and stating the purpose of his visit,
has authority to go aboard a domestic or foreign merchant vessel
over the objection of its Captain or to enter an enclosed com-
mercial plant for the purpose of serving criminal or civil process.
       Your third question asks about the penalties applicable
to those who interfere and attempt to prevent a Constable or
Sheriff from serving process.
         Article 388, V.A.P.C., provides a penalty for opposing the   ,,
arrest   of another~for felony.
            "Whoever shall wilfully oppose or resist an
          officer in executing, or attempting to execute
         any lawful warrant for the arrest of another per-




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                                                                   .




Honorable W. C. Lindsey, Page 10 (M-285)


      son in a felony case shall be confined in the
      penitentiary not less than two nor more than
      five years. If ,armsbe used in such resistance,
      he shall be confined in the penitentiary not
      less than two nor more than seven years."
       Article 339, V.A.P.C., states the penalty for opposing
arrest of another for a misdemeanor.
         "If any person shall wilfully oppose or resist
      an officer in executing or attempting to execute
      any lawful warrant for the arrest of another per-
      son in a misdemeanor case, or in arresting or
      attempting to arrest any person without a warrant,
      where the law authorizes or requires the arrest
      to be made without a warrant, he shall be fined
      not less than twenty-five nor more than five
      hundred dollars, and if arms be used, be fined
      not less than fifty nor more than one thousand
      dollars."
       Article 342, V.A.P.C., conditions imposition of the above
two penalties on the process being executed in a legal manner.
         "To render a person guilty of any offense included
      within the meaning of articles 338 and 339 the warrant
      or process must be executed or its execution attempted
      in a legal manner."
       Article 336, V.A.P.C., sets forth the fine for preventing
execution of civil process by means not,amounting to actual
resistance.
         "Whoever shall prevent or defeat the execution of
      any process in a civil cause, by any means not amount-
      ing to actual resistance, but which are calculated to
      prevent the execution of such process, shall be fined
      not exceeding five hundred dollars: evading the execu-
      tion of such process is not an offense under this article."
       Those who would hinder a law enforcement officer might also
become subject to Article 77 of the Penal Code. It states in part
that "an accessory is one who, knowing that an offense has been
committed, conceals the offender , or gives him any other aid in.
order that he may evade an arrest or trial or the execution of his
sentence." Under Article 79 of the penal Code, Dacceesories shall
be punished by the infliction of the lowest penalty to which the
principal would be liable."

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Honorable W. C. Lindsey, Page 11 (M-285)


                               SUMMARY
          A Constable or Sheriff has no authority to serve
       criminal or civil process on board any foreign naval
       vessel or any foreign merchant vessel where the United
       States Department of State recognizes a sovereign im-
       munity, However, absence such recognition, a Constable
       or Sheriff does have authority to enter a domestic or
       foreign merchant vessel without the consent of the Captain
       to serve civil or criminal process; those denying such
       consent subject themselves to certain penalties and
       fines. A Con&table or Sheriff has no authority to serve
       process on board a United States naval vessel; the
       persons upon whom such process is to be served;may be
       delivered to local authorities in acdord with federal
       law,
          A Constable or Sheriff does have authority to serve
       criminal or civil process in an enclosed commercial
       plant; any person denying him permission to enter
       subjects himself to certain penalties and fines.
                                         truly yours,



                                 A
Prepared by Charles T. Rose
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
Xerns Taylor, Co-Chairman
Robert Lattimore
Fisher Tyler
Ralph Rash
Malcolm Quick
EXECUTIVE ASSISTANT
A. J. Carubbi, Jr.
