The Honorable Eddie Lucia, Jr. 

Chair, Committee on Border Affairs 

Texas State Senate 

P.O. Box 12068 

Austin, Texas 7871 l-2068 

Dear Senator Lucia: 

February 7,200O 

Opinion No. JC-0177 

Re: Whether the term “national park” as used in article 

2.122, Code of Criminal Procedure, refers to any and 

all units of National Park System (RQ-OlOl-JC) 

You ask this office the effect of certain legislation you authored which was passed during 

the 76th Legislature. In particular, your concern is whether Senate Bill 965’ grants to law 

enforcement officers of the National Park Service powers of arrest, 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 of Texas. 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 and Wildlife, Office ofthe Solicitor, United States Department 

of the 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 to apply 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 of the 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 is not a peace officer under the laws of this state, except that 

the officer has the powers of arrest, search. and seizure as to any 

offense under the laws of this state committed within the boundaries 

of a national park or national recreation area. In this subsection, 

“national park or national recreation area” means a national park or 

- 

‘Act ofMay 22,1999,76th Leg., R.S., ch. 628,§ 1,1999 Tex. Gen. Laws 31X6,3187 (codified at Twc. 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. CODE GRIM. PROC. ANN. art. 2.122(d) (Vernon Supp. 2000) (emphasis added). 

A question arises as to the applicability of this definition because, while 16 U.S.C. Section 

1 c(a) is itself a “catch-all” provision including in its scope all units of the National Park System, the 

terms “national park” and “national recreation area” are but two of the multiple designations used 

by the Park System and do not themselves have the same inclusive effect. Accordingly, the scope 

of the grant of authority appears ambiguous. 

As its author, you explained the intent ofthis legislation at a public 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 of the National Park Service are on duty 

to protect the park, they are not on the list of approved law 

enforcement officials with powers of arrest in Texas. This legislation 

would add commissioned rangers of the National Park Service to the 

approved list of federal agents with powers of arrest, search, and 

seizure. We do have a committee amendment to consider 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 of arrest 

and powers of search and seizure as to felony offenses only under the 

laws of the State of Texas. The list of law 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 16 U.S.C. Section lc(a) which provides that the National Park 

System “shall include any area of land and water now or hereafter administered by the Secretary of 

the Interior through the National Park Service for park, monument, historic, parkway, recreational, 

or other purposes.” In our view it is clear that the reference to section lc(a) was intended, as you 

indicate in your letter, “to capture all current 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 of Texas, 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 of Senate Bill 965 does not successfully manifest this intent. In the 

Department’s view, “although the intention may have been otherwise, the plain language of article 

2.122 is insufficient to cover all units of the national park system which exist in Texas.” Interior 

Letter, supra, at 2. 

The Department’s position is presented rather succinctly in one paragraph: 

Article 2.122 of the 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, it had defined the areas in which jurisdiction was being granted 

as any unit included in the National Park System as that system is defined by 16 U.S.C. Section 

lc(a). This office, like the courts, cannot make a statute “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, 18 S.W. 578, 579 (1892). Accordingly, we cannot simply revise a statute by fiat. 

However, we are charged as well not to treat an enactment of the Texas Legislature as a nullity, 

which would be the consequence of the Department’s interpretation of the 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 in the proper manner, this narrow exception to the plain 
The 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 16 U.S.C., section la-6, and the Assimilative 

Crimes Act, 18 U.S.C., sections 7 and 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 or concurrentjurisdiction. Interior 

Letter, supra, at 1. Accordingly, a grant of such authority in those circumstances would be 

unnecessary. The grant is necessary only if the Park Service’s interest in the land in question is 

solely proprietary, which we are given to understand is the case with the Palo Alto Battlefield site 

and perhaps six other such sites in Texas. 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 be either 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 law to commissioned National Park Service law enforcement officers within 

the boundaries of any and all units ofthe National Park System, however denominated, in this state. 

We note, however, that the legislative history also makes clear that this jurisdictional grant is at most 

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 of Criminal Procedure, as enacted by 

Senate Bill 965, 76th Legislature, is a grant of the powers of arrest, 

search, and seizure to enforce Texas law to commissioned National 

Park Service law enforcement officers within the boundaries of any 

and all units of the National Park System, however denominated, in 

this state. 

Attorney General of Texas 

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