                                ATTORNEY GENERAL OF TEXAS
                                             GREG         ABBOTT




                                               September 29,2003



The Honorable Sylvester Turner                             Opinion No. GA-O 109
Speaker Pro Tempore
Texas House of Representatives                             Re: Meaning of the phrase “in the custody of a
P. 0. Box 2910                                             peace officer” for the purposes of article 49.18,
Austin, Texas 787682910                                    Code of Criminal Procedure     (RQ-0047-GA)


Dear Representative      Turner:

        You ask what constitutes a death in custody for the purposes of article 49.18 of the Texas
Code of Criminal Procedure.’ At the time you originally requested the opinion of this office, article
49.18 required the investigation of the death of any person who was in the custody of a peace officer
or any prisoner confined in a jail or prison, as well as the filing of a report on such an investigation
with this office. See TEX.CODE CRIM.PROC. ANN. art. 49.18(b) (Vernon Supp. 2003). However,
at that time, the phrase “in the custody of a peace officer” was not defined by the statute, and
accordingly, as indicated by correspondence attached to your request, at least one major metropolitan
police department was undertaking such investigations and filing such reports whenever police were
present at a death.2

         Senate Bill 826, adopted in 2003 by the Seventy-eighth Texas Legislature, however, includes
a series of revisions to article 49.18. Among these is a set of definitions to be added as subsection
(d) of the article. Subsection (d)(2) specifically addresses your question:

                  (2) “In the custody of a peace officer” means:

                           (A) under arrest by a peace officer; or

                           (B) under the physical control or restraint of a peace officer.

Act of June 1,2003,78th        Leg., R.S., S.B. 826, 9 1 (effective Sept. 1,2003) (to be codified at TEX.
CODE   CRIM.PROC.ANN.art.49.18).


        ‘Letter fromHonorable Sylvester Turner, Speaker Pro Tempore, Texas House of Representatives, to Honorable
Greg Abbott, Texas Attorney General (Apr. 24,2003) (on file with Opinion Committee) [hereinafter Request Letter].

         ‘Letter fromRichard H. Cobb, General Counsel, Texas Fraternal Order of Police, to Dennis L. Ward, President,
Texas Fraternal Order of Police, at 1 (Apr. 4,2003) (attached to Request Letter, supra note 1).
The Honorable    Sylvester Turner    - Page 2        (GA-0109)




         Whether in any particular situation a person is under arrest or physically controlled or
restrained by a peace officer is a question of fact that this office cannot determine in the opinion
process. See Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996) (determination of
whether person is in custody must be ad hoc, considering multiple circumstances); Tex. Atty. Gen.
Op. No. GA-0087 (2003) at 1. However, unless the decedent is either under arrest or under the
actual physical control or restraint of a peace officer, for the purpose of article 49.18, his or her death
is not a death in custody.
The Honorable   Sylvester Turner   - Page 3             (GA-0109)




                                          SUMMARY

                        Senate Bill    826, as    adopted in 2003 by the Seventy-eighth
                Texas Legislature,     amends      article 49.18 of the Code of Criminal
                Procedure to define    a death    “in the custody of a peace officer” as the
                death of a person     who is      either under arrest or under the actual
                physical control or   restraint   of a peace officer.




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General, Opinion Committee
