...                   P.




      Honorable Elmer H. Parish
      District Attorney
      Wichita County
      Wichita Falls, Texas

      Attention:   Shields   Heyser

      Dear Sir:                              Opinion No. O-5579
                                             Re: Is a soldier of the United
                                                  States Army amenable to
                                                  the State Laws of Texas?
                                                  And a related question.

                    This will acknowledge receipt of your recent let-
      ter in which you pose two questions for this department   to an-
      swer.    These questions as they appear in your letter are as
      follows:

                     “First, is a soldier of the United States
              Army amenable to the State Laws of Texas?
              Second, does the military law of the United
              States Army supercede      all State Laws when
              the State makes an arrest for a soldier com-
              miting a criminal act against the State of Texas?            ”

                    Title    10, U.S.C.A.,   Section   1546,   provides   as fol-
      lows:

                      “Delivery   of offenders to civil authorities
              (article 74). P’hen any person subject to mili-
              tary law, except one who is held by the military
              authorities    to answer, or who is awaiting trial
              or result of trial, or who is undergoing sentence
              for a crime or offense punishable under these
              articles,   is accused of a crime or offense com-
              mitted within the geographical      limits of the States
              of the Union and the District of Columbia, and
              punishable by the laws of the land, the commanding
              officer is required,    except in time of war, upon
              application duly made, to use his utmost endeavor
              to deliver over such accused person to the civil
                                                                            .




Hon. Elmer     H. Parish,   Page    2 (O-5579)




         authorities,   or to aid the officers of justice in
         apprehending and securing him, in order that
         he may be brought to trial.      Any commanding
         officer who upon such application     refuses or wil-
         fully neglects,   except in time of war, to deliver
         over such accused person to the civil authorities
         or to aid the officers of justice in apprehending
         and securing him shall be dismissed       from the
         service or suffer such other punishment as a
         court-martial    may direct.

                ‘U’hen, under the provisions     of this article,
         delivery is made to the civil authorities      of an of-
         fender undergoing sentence of a court-martial,
         s~uch delivery,  if followed by conviction,    shall be
         held to interrupt the execution of the sentence of
         the court-martial,     and the offender shall be re-
         turned to military    custody, after having answered
         to the civil authorities for his offense, for the com-
         pletion of the said court-martial     sentence.”

                Title 10 U.S.C.A.    Sections    1564 and 1565,   respec-
tively   provide as follows:

                “Any person subject to military law who
         commits murder or rape shall suffer death or
         imprisonment    for life, as a court-martial may
         direct; but no person shall be tried by court-
         martial for murder or rape committed within the
         geographical  limits of the States of the Union and
         the District of Columbia in time of peace.”

                 “Any person subject to military law who
         commits    manslaughter,   mayhem, arson, burglary,
         house-breaking,    robbery, larceny, embezzlement,
         perjury, forgery,   sodomy, assault with intent to
         commit any felony, assault with intent to do bodily
         harm with a dangerous weapon, instrument,      or
         other thing, or assault with intent to do bodily
         harm, shall be punished as a court-martial     may
         direct.”

             It is well settled that in time of peace a person in
the Military Service of the United States who, in any portion of
a state or territory  not within the exclusive jurisdiction   of the
United States, commits    a criminal offense recognized     and made
punishable by the local laws is amenable to the state or territor-
ial courts therefor.   U. S. v. Lewis (C.C. Pa. 1904) 129 F. 825,
Hon. Elmer    H. Parish,   Page 3 (O-5579)




affirmed 26 S.Ct. 229, 200 U.S. 1, 50 L.Ed. 343; 36 Am.Jur.         p.
261; 6 C.J.S. p. 425.   By virtue of section 1546, supra, in time
of peace it becomes    the duty of the commanding      officer of a
military post upon application duly made to deliver the accused
person in military service    to the civil authorities   or to aid in
the apprehension   of such offender.    A wilfull neglect of this duty
subjects the commanding     officer to dismis,sal from service or
other punishment as the court-martial      may direct.

              A different situation exists however in time of war.
It will be noted in section 1546, supra, that it is the duty of the
commanding     officer to deliver a person under his command to
civil authorities   upon application therefor except in time of war.
Likewise,   section 1564, supra, empowers       the military courts to
punish a person subject to military law for committing          murder
or rape, but pr,ohibits a court-martial     to try a person for such
offense in time of peace.     The contention has often been made
that the wording of these sections in the ,above manner gave the
military courts exclusive jurisdiction     in time of war of a person
in military  service;  who commits an offense recognized         and pun-
ishable by local laws.    The courts have consistently      held, however,
the military courts in time of war do not have exclusive jurisdiction
over offenses committed by persons in military service,           but rather
the military courts and the civil courts have concurrent jurisdiction
over these offenses committed by such persons.           Caldwell v. Parker
(Ala. 1920) 40 S.Ct. 388. 252 U.S. 376, 64 L.Ed. 621; Kahn v. Ander-
son (Kan. 1920) 41 S.Ct. 224, 255 U.S. 1; U.S. v. Hirsch, 254 F. 109;
6 C.J.S. pn 425.

                This concurrent jurisdiction      in time of war of the mili-
tary and state courts over offenses against local laws committed
by persons in military      service is not in the true sense a concurrent
jurisdiction    as generally understood.      As a rule the courts of con-
carrent jurisdiction     are on an equal basis and the court which first
obtains jurisdiction    over the subject matter of a controversy         will
retain jurisdiction    until final adjudication and will not be hindered
by any action of a court of concurrent jurisdiction.           This procedure
is not followed in determining      the jurisdiction    between military and
civil courts, as the Federal and State courts fully recognize           that the
military courts have a preference        or a prior or paramount right to
the jurisdiction    over an offense committed by a person in military
service.     The courts are actually not on an equal basis since the
Military Courts, if they desire, may assume jurisdiction            even though
contrary to the wishes of a state court.         Ex Parte King, 246 F. 868;
People v. Denman, 179 Cal. 497, 177 Pac. 461; Funk v. State, 208
S.W. 509. It is well settled that the military courts can waive this
paramount or prior right they possess          to the jurisdiction  of an
Hon. Elmer   H. Parish,   Page 4 (O-5579)




accused by releasing     the custody of the offender to the civil au-
thorities or by taking no action whatsoever       and thus acquiesce
to the civil authorities   assuming jurisdiction.    Caldwell v. Par-
ker, supra, Colemanv.       Fenneser,  97 U.S. 509, 24 LEd.     1118;
Funk v. State, supra.     In the recent case of Ex Parte Sumner,
158 S.W. (2d) 310, the Texas Court of Criminal Appeals after
discussing   section 1546, supra, had the following to say:

              “Under this section, two exceptions        exist to
      the application    thereof; these are:      (a) when the mili-
      tary subject is being held to answer for trial or is
      undergoing a sentence for an offense under the Ar-
      ticles of WarI (b) when a state of war exists.           The
      effect of these exceptions,      then, is to say that, when
      a state of war exists, or when the subject is being
      held for trial, or is serving a sentence, for an of-
      fense punishable under the Articles          of War, the com-
      manding officer is not required to deliver him to the
      civil authorities,    The reason therefor is obvious, for
      the civil authorities     ought not--especially     in time of
      war--to   be empowered       to interfere with the military
      authorities   in the exercise     of control and jurisdiction
      over their military subjects.        But, whether the deliv-
      ery of a particular     military subject into the custody
      of civil authorities    for trial would or would not inter-
      fere with or hamper the military establishment             is a
      matter primarily      within the knowledge of the officers
      in charge thereof.      Such being true, there is nothing
      to prevent the military authorities        from waiving the
      exceptions mentioned.        That such exceptions were
      waived in the instant case is shown by the fact that
      the appellant was by the military authorities          deliv-
      ered into the custody of the sheriff for trial.         There
      is nothing to show that the military authorities          have
      asserted    any right to proceed against appellant for
      the offense charged against him, nor that such au-
      thorities are investigating,      or have made any investi-
       gation, relative thereto.”

As to when a military court has waived this paramount right or
acquiesced   is subject to conjecture, for in the case of Ex Parte
King, supra, even after the civil authorities   indicted a soldier,
the military   court could intervene and obtain jurisdiction,   although
Hon. Elmer   K. Parish,      Page   5 (O-5579)




in this case the so-called       waiver    was said not to come from             the
proper officers.

             We trust the foregoing          fully answers          your questions.

                                          Very   truly yours




                             BY
                                                     Fred    C. Chandler
                                                                 Assistant


                             BY
                                                    Robert     0.    Koch
                                                                     Assistant

FCC:FO
ROK:FO



APPROVED      SEP     14, 1943



is/G  rover Sellers
First Assistant
Attorney General
                                                            Approved:
                                                            Opinion Committee

                                                            By /s/  BWB
                                                                Chairman
