The Honorable Eddie Lucia, Jr.

Chair, Committee on Border Affairs Texas State Senate P.O. Box 12068 Austin, Texas 7871l-2068
Dear Senator Lucia: February 7,200O

Opinion No. JC-0177
Re: Whether theterm “national park” asused in article 2.122, Code of Criminal Procedure, refers to any and allunits ofNational Park System (RQ-OlOl-JC)

You ask this office the effect ofcertain legislation you authored which was passed during the 76th Legislature. In particular, your concern is whether Senate Bill 965’ grants to law enforcement officers oftheNational Park Service powers ofarrest, search, and seizure with respect to state law offenses committed within the boundaries of any and all units of the National Park System located in the State ofTexas. We conclude that, while the language of Senate Bill 965 is somewhat unclear and may be susceptible ofthe Park Service’s interpretation that the bill “does not apply to all units of the national parks system in Texas,” Letter from David A. Watts, Deputy Associate Solicitor, Division ofParks andWildlife, Office ofthe Solicitor, United States Department ofthe Interior, to Elizabeth Robinson, Chair, Opinion Committee, Office of the Attorney General (Oct. 14, 1999) (on file with Opinion Committee) [hereinafter “Interior Letter”), the legislative history ofthe statute indicates that the measure was intended toapply to all such units. Accordingly, we read Senate Bill 965 as a grant of authority to law enforcement officers of the National Park Service to make arrests and to have powers of search and seizure with respect to state law offenses within the boundaries of any and all units ofthe National Park System located in Texas, however such units may be described.
Senate Bill 965 amended article 2.122 of the Code of Criminal Procedure by adding subsection (d), which reads:

A commissioned law enforcement officer of the National Park Service isnot apeace officer under the laws ofthis state, except that the officer has thepowers 

### of arrest, search. and seizure as to any offense under the laws ofthis state committed within the boundaries ofa national park or national recreation area. In this subsection, “national park or national recreation area” means anational park or

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‘Act ofMay 22,1999,76th Leg., R.S., ch. 628,§ 1,1999 Tex. Gen. Laws 31X6,3187 (codified atTwc.CODE

GRIM.Pmt. ANN.art. 2.122(d)).The Honorable Eddie Lucia, Jr. - Page 2 (X-0177)

national recreation area included in the National Park System as defined by 16 U.S.C. Section It(a).
TEX.CODEGRIM.PROC.ANN.art. 2.122(d) (Vernon Supp. 2000) (emphasis added).
Aquestion arises asto the applicability ofthis definition because, while 16U.S.C. Section 1c(a) isitself a“catch-all” provision including inits scope all units ofthe National Park System, the terms “national park” and “national recreation area” are but two ofthe multiple designations used by the Park System and do not themselves have the same inclusive effect. Accordingly, the scope ofthe grant of authority appears ambiguous.
As itsauthor, you explained the intent ofthis legislation atapublic hearing before the Senate Criminal Justice Committee on April 14, 1999:

A new national park in Cameron County, which is located in the southern tip of Texas, is being developed, and unfortunately the park’s grounds are frequented by people intent on drinking and loitering. Although rangers ofthe National Park Service are on duty to protect the park, they are not on the list of approved law enforcement officials with powers ofarrest inTexas. This legislation would add commissioned rangers ofthe National Park Service tothe approved list of federal agents with powers of arrest, search, and seizure. We do have acommittee amendment toconsider that would confine those powers to within the park areas. The amendment would address what the committee substitute would do-which would be to confine those powers within the park area and not outside. Hearings on Tex. S.B. 965 Before the Senate Comm. on Crim. Justice, 76th Leg., R.S. (Apr. 14, 1999) (statement of Senator Eddie Lucia, Jr.) (audio tape available from Senate Staff Services).
The digest contained in the various bill analyses of Senate Bill 965 is to the same effect as your testimony: Currently, certain federal criminal investigators have powers ofarrest

and powers ofsearch and seizure astofelony offenses only under the laws ofthe State ofTexas. The list oflaw enforcement authorities includes a variety of United States agencies with jurisdiction in Texas. This bill would add commissioned law enforcement officers of the National Park Service to the approved list of federal agents with powers of arrest and search and seizures.The Honorable Eddie Lucia, Jr. - Page 3 (K-0177)

SENATECOMM.ONCRIM.JUSTICE,BILLANALYSIS,Tex. Comm. SubstituteS.B. 965,76thLeg.,R.S. (1999).
Senate Bill 965 refers to 16U.S.C. Section lc(a) which provides that the National Park System “shall include any area ofland and water now orhereafter administered by the Secretary of the Interior through the National Park Service forpark, monument, historic, parkway, recreational, or other purposes.” In our view itis clear that the reference to section lc(a) was intended, asyou indicate inyour letter, “tocapture allcurrent and any future designations created by Congress under this specific title.” Letter from Honorable Eddie Lucia, Jr., Texas State Senator, to Honorable John Comyn, Attorney General ofTexas, at 2 (Aug. 11, 1999) (on tile with Opinion Committee). Nevertheless, it is the view of the Solicitor’s Office of the Interior Department (the “Department”) that the language ofSenate Bill 965 does not successfully manifest this intent. Inthe Department’s view, “although the intention may have been otherwise, the plain language of article 2.122 is insufficient to cover all units ofthe national park system which exist in Texas.” Interior Letter, supra, at 2. The Department’s position ispresented rather succinctly in one paragraph:
Article 2.122 ofthe Texas Criminal Code apparently references 16 U.S.C 5 lc(a) in an effort to clarify that national park or national recreation area is a shorthand way of referencing any unit of the national park system. However, as written, article 2.1[22] does not accomplish that purpose. It refers to national park or national recreation area as defined by lc(a). However, section lc(a) does not define national park or national recreation area; it defines national park system. Id. (emphasis in original).
We do not disagree with the Department that the sentence in question might have been more felicitously worded if, for example, ithad defined the areas inwhich jurisdiction was being granted as any unit included in the National Park System asthat system is defined by 16U.S.C. Section lc(a). This office, like the courts, cannot make astatute “apply to cases to which it does not apply, without assuming functions that pertain solely to the legislative department of the government.” Turner v. Cross, 18S.W. 578, 579 (1892). Accordingly, we cannot simply revise astatute by fiat. However, we are charged as well not to treat an enactment of the Texas Legislature as anullity, which would be the consequence ofthe Department’s interpretation ofthe definition. See Baker v. Bell Helicopter Textron, Inc., 985 S.W.2d 272, 275 (Tex. App.-Fort Worth 1999, pet. denied) (“[T]he legislature is not presumed to have done a foolish or useless thing.“); see also Boykin Y. State, 818 S.W.2d 782,785 (Tex. Crim. App. 1991) (“where applicationofa statute’splainlanguage would lead to absurd consequences that the Legislature could not possibly have intended, we should not apply the language literally. When used intheproper manner, this narrow exception tothe plainThe Honorable Eddie Lucia, Jr. - Page 4 (JC-0177)

meaning rule does not intrude on the lawmaking powers of the legislative branch, but rather demonstrates respect for that branch, which we assume would not act in an absurd way.“).
As the Department points out, pursuant to 16U.S.C., section la-6, and the Assimilative Crimes Act, 18U.S.C., sections 7and 13,“authority already exists for National Park Service law enforcement officers to enforce state laws within the boundaries of a unit of the national park system” when the federal government exercises either exclusive orconcurrentjurisdiction. Interior Letter, supra, at 1. Accordingly, a grant of such authority in those circumstances would be unnecessary. The grant is necessary only ifthe Park Service’s interest in the land in question is solely proprietary, which we are given to understand isthe case with the Palo Alto Battlefield site and perhaps six other such sites inTexas. Telephone conversation with K. C.Becker, Office ofthe Solicitor, Department ofthe Interior (Dec., 1999). Yet, given the Department’s view that such sites are not necessarily included within the definition in article 2.122(d) of the Code of Criminal Procedure, SenateBill 965’s grant ofjurisdictionwould beeither supererogatoryorvoid. We cannot so construe the statute. Accordingly we construe Senate Bill 965 as a grant of the powers of arrest, search, and seizure to enforce Texas lawtocommissioned National Park Service law enforcement officers within the boundaries ofany and allunits ofthe National Park System, however denominated, inthis state. Wenote, however, that the legislative history also makes clear that thisjurisdictional grant isatmost concurrent, and is limited to the enumerated powers given to such Park Service law enforcement personnel within the boundaries of the park units. No further jurisdiction than this has, by this statute. been ceded to the United States.The Honorable Eddie Lucia, Jr. - Page 5 (JC-0177)

SUMMARY
Article 2.122(d), Code ofCriminal Procedure, asenacted by Senate Bill 965, 76th Legislature, is agrant ofthe powers of arrest, search, and seizure to enforce Texas law to commissioned National Park Service law enforcement officers within the boundaries of any and allunits ofthe National Park System, however denominated, in this state.

Attorney General ofTexas

ANDY TAYLOR First Assistant Attorney General
CLARK RENT ERVIN Deputy Attorney General -General Counsel
ELIZABETH ROBINSON Chair, Opinion Committee
James E. Tourtelott Assistant Attorney General -Opinion Committee