Mr. Tom L. Hartley
CriminalDl&tHct Attome)-
Edlnburg, Texas
Dear sir:
                Oplnlon Ed. o-317
                Re: Authorlty~of sherlff,~oonatable
                    and deputy of el+r, to,mak6 au
                    arrest tithout'varrant,for via-
                    latloa oi hIghway lava?
          Your request for an oplnloa aa to the right
of a ahsr.lff,deputy sheriff, constable or deputy con-
stable to make au arrest wlthout a warrant for a vlola-
tlon of the hlghway laws when such officer la tiot
clothed as provided In Article 803b of the Penal Code,
has been received by thla Department.
          The general lairon this subject la Article
803 R. c. S., which reads 88 followe:
          "Any peace officer 1s authorized to
     arrest without warrant any person found
     committing a v1olatlon of auy provision
     of the preceding articles of.,thlschapter."
          Your letter of request dlscuaaes the two
moat recent caseb relating to your Question. Rowever,
In our opinion, the case of Ex’Parte Eeillng, 82 SW
(2d) 644,~goes further than mbrely holding that Artl-
cle 803a waa uncoustitutlonal~beaaus& It was a spe-
cial law. It holds'thatArtlole 803a, as enacted by
the Flf'th'Calledbeaslon of the 4lst Legislaturewas
not materially dlfrerent from 803a aa amended by the
Second Called Session of the 41at Leglalatur6 and ap-
plying the rule of constructionof the Scogg1n.aaaae,
supra, the zrequlretuent
                       of a uniform was unconatltutlona1.
    Mr. Tom L. HartleT, Harch 13, 1939, Page 2


              The case of Scott va. State, 114 SW (26) 564,
    referred to in your letter, agrees with the "Helling
    case" in holding that the statute requiring offl~ers to
    wear oertaln unlSorms, caps and oSSlclal badges was in
    contraventionof the State Coastltntlon.
              These two cases rely on the decision of the
    court and the opinion of Judge Lattlmore of the Court
    of Criminal Appeals in the ease of Scogglna ~8..State,
    38 SW (2nd) 592. Judge Lattlmore held that the'requlre-
    ment of officersto wear certain types of wea,     caps
    and uniforms was la vlblatlon of Section 1, Article 2 of
    our ConstitutionIn that It waa an unwarrantedlnter-
    Serence of one branch of our government with another.
    Be Surther'statedthat the requirewentwas in contra-
    ventlon~of our Bill of Rights, Se&Ion 19, Article 1 bf
    our Constitutionvhlch forbids any citizen of this State
    to be deprived of property, privileges and lmmunltlea
    except by due course of the law, and to ccmpel, by
,   statute, an officer to acquire certain ralment before he
    can adequatel;renforce the laws or protect the publio
    of his community from all thb,pervadlngspeed fiends
    was a violation of our Constitution.
                 On motion for re-hearing in the Scogglna case,
    Judge Morrow wrote the opinion, denying tha motion for
    re-hearing. In addition to the miatters discussed la the
    opinion of Judge.Lattlmore,Judge Borrow called atteatlm
    to the fact that Chapter 47, Section'1 of the Acts of
    the 41st Leglalat~e required the peace officersmaking
    arrests for violation of the highway laws to'wear a pre-
    scribed uniform. Rothlng in Chapter 47'~orelsevhere In
    the Statutes    require that peaoe officers wear UnIforma
    la dischargingtheir duties, but under the terms of Chap-
    ter 47, Section 1, IS the peaoe officer does not vear a
    un1?orm, he cannot obey the general law and arrest ollc
    violating the highway lawa. IS Article 803b la valid,
    the option is with the officer to wear a uniform and en-
    Soroe the highway laws, or leave of? his uniform rellev;
    lng himself of the duty to enforce that law, vhlch In
    effect, suspends the law. That 18 la violation of       '.
    Artlole 1, Section 28 of the Constitutionof Texan,
    providing that:
              "Ho power of auapendlng laws in this
         State shall be exercised except by the
         Legislature."
     --.q.   -
“I    ;
                             Lo                         V


                 l&. TOB L. Hartley, March 13, 1939, Page 3


                           Article 803b Is'the rate& effort of the
                 Legislatureto require the oiflcers of thla State to
                 wear a badge at a certain place on hla body, to wear
                 a cap, coat or blouse and trousers of named colors
                 before he can make an arrest for a violation of the
                 highway laws of thl& State, though he is authorized _
                 by Article 803 to make such an arrest.  In our opln-
                 Ion, the Leglalature Is attempting to do vhat Judge
                 Lattlmore in the "Scogglns case" said they could not
                 do. We think that the requirement  OS a uniform la
                 Article 8031,violates the Constitutionof Texas for
                 the reasons given in the opinions of Judge Morrow and
                 Judge Lattlmore.
                           It is the opinion of this Department that
                 a sheriff, constable, or deputy of either, may make
                 an arrest without a warrant for a violation of the
                 highway laws of this State.
                                                 Very truly yours
                                            ATTORNEY(3RRRRALOFTRXAS


                                            BY   id    MorriS Hodges.
                                                       Morris Rod&es
                                                           Assistant
                 MR:AW:mja
                 Approved:
                 /a/ Gerald C. Mann
                 ATTOR~GRNERAL    OFTRXAS
