      OFFICE   OF THE A-ITORNEY   GENERAL
                                              OF TEXAS




Honorable Albert J. Huteon
county Attornry
Trinity couaty
Urovston, Texas

Dear air:                     Opinion Ho* o&34
                              Her Arm
                                  Dl.13‘&Si?l;:!i\~:t;:*-
                                  jhiir;\\
                                             --y ‘l
          Rq ara la receipt           letter or ~T$w& data in
whlah you ask ths following                       b”
           way an 0fri0a                     ) ,without6
      warrant, a Feraon f                    publlo pleas?”
          YOU                                tt va. Statr, 124 S.W.
(261 359, and                                court 8trongly inti-
sited that it                                or conetable ir not
 authoriced   to                            ol.raua8tano*s   or your
‘qusstlon   as 8$hte

                                   pal?8 On ill@ In the Court of
                                   asa, in adtlitfon to agein read-
                                      hietory of the Bennett cam

                    wea aooortad by a polioa offlasr or thr City
                    the offloar having recaivsd informetlon that
                   ntoxloated aondltion on the publio strerte.
                   ppsllent waa In such aondition,  arrl attemptad
                   t wlthout a warrant. Appellant resisted     and
                   h anaued, ha took the polia8man1e billy away
               rusk the officer on the heed, infllatlng painful
wounda. A,byetender same to the ratcue of the policemen, end
th6 two overpoweredappellent, hendonf’fed hipp, and took him to
the police station.
          The oaea was eppaalad  to the Court of Crlmlnel Appeals
on the ground of ineuffieimvap  of the e’cldeme, the oontantion
being thet einoe ther? wa8 no evidraos of any oonduot on the
pert of appellant in tha nature of a breaoh of the paaoo, the
Ronorablr Albert J. Hutton, Fag4 2

oiiioar hsd no right  to arrwt;  tharef'ora,appellant wa8
justffiad iA using reesonabl4 for08 to pl%Vant hi8 Ill4gal
arrest. The Stats coctanded that oinc4 thars was aoideno4
or apperllant'sbeing drunk in 4 pub114 plaa4, the orfIc4r
had th4 rie,htto.erreet without a warr4nt, drunksnn4aa be-
ing 4n offense "against ths public p4ace." Based upon thir
intarpretation, th6 Ststs oharg4d appellant with aA aggra-,
vatsd aeeault undar Saction 1 of Artlola 1147, Panal Code.
              Th4 rsaord failing to 8how that notioa of app4al
was duly raaordsd in the minutre of the court,     an original
oonaidarktlon     the appsal was dietissrd (124 S.W. 359). Upon
parf4OtiOA of tha rooord, the 4pp4al was rrlnrtatad, and th8
omae rsvarsed ana remendrd. The opinion thus dirsotlng road
IA part a8 hollows:
           "It does not appear fron thr trstlmony
     that prior to the tims of hip arrant, appallant
     had don4 or said anything whloh would 001~4rith-
     in tha meaning of a br4aoh or di8burb8AO4 of
     the pace.    At the time the offiaer rirat saw
     him, hs was 8tandllllg1A thr doorway et th4 4lr-
     vator  in the Twymoa Bullding within a blook of
     the oourthouss.
          **Art.212, C. C. F. providea:
          *'A peaer orfloor or any other per8on, nay,
     without warrant, arrert an oifandar  when the of-
     fen84 is coxnitted In hi8 prrsonos  or within hi8
     view, if the oifenre Is on4 olasaed as a l'elony,
     or a8 an offsnee against the publio pea~a.~

           wTh4r4fore the arrest of appellant wnithcut
     a w4rrmAt wh4n he was oomnittlng neither a breeoh
     of the peace or tatslony ~48 AOt authoriard by
     law u~lsstp a 10041 ordinanos authorl84d auoh ar-
     raet. Sea 'i;llllam v. State, 64 Tax. Criza.Rep.,
     491. Sines there la no proof in thi8 rooora Of
     such an orbinanc4, tha question met be doaided
     by Art. 212, C. C. P., a.8abov4 8(ltout, end the
     g4n8ral laws o!'this stata.
          *In the   a444   OS Xlng v. State, 103 S.%'.(2d)
     754, this court aaid:
          "'Dmmk4n~488 la AOt alesaad a8 8 f4lOAy,
     Aolthsr Is it an ofian  agahnst the publla pOa40.'
          Vh8   only distinotlon be$w8en th4 iA8t4At 0884
Bonorable Albert ;r.HUteon, Fagr 3

     end t&m on4 quoted fxm is that th4 o??ioar In
     the latter ease attempted to error& K~ingrlth-
     out a warrant at his r%8id8no%, Wh%r%68 in the
     instant 088% the officer attempted to arrest
     appallant for being drunk in a public place.

          "The state railed to ahow that the pollae-
     man had a legal right to maka or att&npt to Plakr
     the arrest Without 4 warrant. I? the arrest ~a8
     lllrgal. appellant had the right to resist, or to
     extricate himself rfroAeaid arrest, and under euch
     circumatanosr hacla right to resort to suoh foror
     4% Was reasonably naoessary to accompllah that
     objcotlve."
          The State flied a motion ?Or rehearing, Citing Arti-
014s 998 and 999, Earls48 Civil Statutes, 1925, I5 Texas Juri8-
prudenoe 300 end Fratt vs. Brown, 80 Tax. 608, 16 9.H. 443.
          G’ponreooA8ld%ration, the COUrt Of Cri.AiAaIAppeals
Wltharew lta opinion as partially quoted above, and dlscure-
log the authorities olted by the Stat%, granted th4 mOtiOa 8Ad
ar.rimnd the oasci. The authoritiee cited in the State’s motion
for rehearing and diecussed by the court eetabliahed the right
of altv marehala and ~01ic8nen to arrest for dnmk%AAess iA a
$UbIl4"plao% without warrant on the grotmd that same ooixiti-
tutor disorderly conduct per se, irr%op%otlv% o? *ether there
is additional mfeoonduot aonstituting a breech a? the peaoa.
That the granting of the State'8 AotlOA was founded on-suoh
thsory 1s attested~~tythe flaal paragraph8 of Judge Oravee~
opinion:
          "ThU8 bell%vlug we hold that pollcenan have
     the power under the statute .toarrest without
     warrant parsons Pouod in a state of drtmkanness
     in n public place, wlthln thslr Jurlsdlatlon,
     and that dmnksnness in such place is dlaordsrly
     conduct.
    Bonorabla Albert J. Butson, Feage4

         a warrant where the off’enseis commlttrd in suoh
         ottioera’ presenoe.” (Emphasis ours.)
               From the above and r0r4poiag,    it ia our opinion that
    unlrsa there is other and addltionul evidenoe than mere lntor-
    loation in a public place, ehsrirra     and oonatablas do not
    have the legal right to arrest one so violating Artlolr f,77,
    Yanal Oode, unlree much officers firat prooure a warrant of
    arrest, r&l18 polios orrio0ra  or a city may lawfully nmk8 an
    arrest without a warrant under the same etato of faots. Al-
    thou&h Ii& opinion In Bennett va. State, rupra, was rrlsaard
    by the aourt prior to our last laglslatlve eeaelon, and ap-
    pellaut’a motion fir rehearing was overrulad while the Leglo-
    latura was la session, no aznendmentto the statute was passed.
              3’0hare been unable to rind a further rxprrsaion by
    the Court of Criminal hppsale slnor the Bennett ease. In the
    ease of Clark va. Qat, 126 s.i”. (26 I 569, the Court or Civil
    Appeals at 91 Faao held In an opinion mndared January 19,
    1939 (rrhearing denied, Maroh 23, 19391 that ii a deputy shrr-
    irr plaoed one undsr armfit, without a warrant, on a ohargr of
    drunkenness In e public plaoe, the arrrat was a lawful one;
    but inveetlgatlon disoloass a writ oi error was granted by our
    Supreme Court, and the oeae has not yet been disposed of. Re-
    gardlass or the outcome or the civil suit or Clark vs. Vr’est,
    since the Court of Crfalnal Appeals is the oourt of 81oluei~r
    and final juriedlotion in orimlnal oasm, ita interpretation
    as stated In the Bennett cars8is bfnUfng upon peaoe otrioosr8
    in sntororment or t&cdcriainal law.
                             *
I                                        Yours very truly
