Honorable Lloyd G. Rust, Jr. Opinion No. S-194 

County Attorney 

Wharton, Texas Re: Authority of Special Rangers 

and Deputy Sheriffs to arrest 

and search without warrant for 

Dear Mr. Rust: game and fish violations. 

Your request for an opinion reads in partas fpllows: 

"Can a Special Texas Ranger or Deputy Sheriff arrest without 

a warrant anyone found violating any~of the game or fish laws and 

can such Special Ranger or Deputy Sheriff search the game bag or 

automobile .a&8 person without a warrant when he has reason to 8uspect that tiuch game bag or automobile c&sins game unlawfully killed"? 

/ 

The general statutory provisions governing arrests without ~warrant 

are comprised in Articles 212-217 of Vernon's Code of Criminal Procedure. 

These statutes provide for arreets without warrant in certain specified eituations where: (1) a felony offense has been committed, or (2) a breach of the 

peace hay occurred. We note that violations of the game and fish laws are misdemeanor'offenses, and that such violations do not constitute "breaches of the 

public peace," as defined by Articles 439-489 c of Vernon's Penal Code and a6 

further defined in the case of Woods v. State, 152 Tex.Crim. 338, 213 S.W.2d 

685 (1948). 

Our Supreme Court, in the leading case of Heath v. Royd, 141 Tex, 

569, 175 S.W.2d 214, 216 (1943), set forth the following rule with respec~t to 

arrests without warrant: 

"The only circumstances under which one may lawfully be arrested without warrant are: (1) when he commits a felony or a 

breach of the peace (a) within the presence or view of the officer or other person, Art. 212, C.C.P. 1925, or (b) in the presence or view of a magistrate who verbally orders his arrest, Art,. 

213, ibid.; (2) when his arrest may prevent the consequences of 

theft, Art, 325, ibid; (3) when a peace officer is informed by a 

credible person that a felony offender is about to escape and 

there is no time to secure a warrarit,, Art. 215, ibid.; (It) when 

the accused threatens to take the life of another, within the 

hearing of a magistrate~;~the~,magistrate may arrest him, if the 

ca8e is one of emergency, Art. 73; ibid.; (5) when he is an escaped prisoner, Art. 244, ibid., which is really a retaking and 

not an arrest, Ex parte Sherwood,,.,supra; (6) when the ordinances 

of a city or town may authorize such action as to persons found 
Honorable Lloyd 0. Runt, Jr., page 2 (S-194) 

in euepiciour placee or under circumatancer rearonably q &owLng 

that they have been guilty of some felony or breach of the peace 

or threaten or are about to commit some offense, Art. 214, ibid.; 

and (7) geaerally for any offenoe when the rtatute defining the 

name exprerely confern the authority, e.g., highway violationa, 

under Art. 803, P.C. 1925; liquor violationa, under Art. 666-30, 

Vernon'r Ann. P.C.j unlawfully carrying arma, under Art. 487, 

ibid.j rioting, under Art. 98, C.C.P. lp25j loyalty, under Art. 

156, P.C. 1925." (~mphanis OUTII) 

It haa aleo been held that the power to arrerrt ie controlled entirely 

by statute, and that the courta of this State will nat enlarge on that power. 

DeLeon v. State, 150 Tex.Crim. 391, 201 S.W.2d 816 (1947). 

Violations of the game and fish lawn do not fall within the #cope 

of Articles 212-217; therefore, peace offickre, an defined in Article 36, 

V.C.C.P., do not have any authority to arreet without a warrant a perron 

found violating the geme and finh lawn. By leginlative mandate thim authority 

1.8 vented in the Game and Fish Commission, acting through ita duly-appointed 

game wardens. Article 4018, Vernon'e Civil Statutes, and Articles 905 and 

978f--3, V.P.C, 

The "search without a warrant" aspect of your queatlon in entirely 

distinct from and independenk of the question of arrest without a warrant. 

Carroll v. United States, 267 U.S. 132 (1925). In this connection Article I, 

Section 9, of our Texan Constitution reads 88 followe: 

The people ahsll be eecure in their persons, houses, papers 

and posseisionr, from all unrerrsonable seizures'or eearchen, aad 

no warrant to search e.ny place , or to seize any person or thing, 

shall iesue without describing them as near a6 may be, nor without probable cause, aupported by oath or affirmation." (Emphaeir 

O'crS I

It bar been held that the above-quoted constitutiinual provision only prohibit6 

unrearonable rearches and seizuree. Hughes v. State, 67 Tex.Crim. 333, 149 

S.W. 173 (1912). Conflequently a "reasonable eearch'--which bar been defined 

by the courta,as being a nearch upon "probable cause”--does not fall within 

the conrtitutionalban. Silver v. State, 110 Tex.Crim. 512, 8 S.W.2d 144 (1928)) 

Chapin v. State, 107 Tex.Crim. 477, 296S.W. 1095 (19271, containing a rrtrongly 

worded dictum on thin point. 

The,moet frequently quoted definition of probable cause ie contained 

in the cane of Landa v. Obert, 45 Tex. 539 (1876), at page 544. That term ia 

there defined a8 "a reasonable gr0u.n.d of s:~spicion., supported by eircumxt~c?a 

eufficiently,atrong in themEslyea to warrant a cautiour man in the belief that 

the perllon accured 16 guilty of the offenee with which he 18 charged." See 

alro Battle v. State, 105 Tex.Crlm. 568, 290 S.W. 762 (1927)j Odenthal v. State, 

106 Tsx.Crlm. 1, 290 S.W. 743 (1927). Clearly the,que&ion of the kxietence 

of prbbable cause in any given case ia dependent upon the facte involved) and 
Honorable Lloyd G. Rust, Jr., page 3 (S-194) 

the fact situations which determine~this question are a8 varied as prosecutions 

are numerous. Bullock v. State, 112 Tex.Crlm. 313, 16 ,S.W.2d 1077 (1929)'; 

Battle v. State, supra. 

It is, then, the opinion of this office that peace officers, as defined in Article 36, V.C.C.P., may lawfully search without a warrant a game 

bag or automobile suspected of containing game unlawfully killed or taken when 

the officere possess facts sufficientto constitute "probable cause." Griffey 

va State, 159 Tex.Crlm. 141, 265 S.W.2d 115 (1954), involving the unlawful possession of barbituates; Hobrecht v. St&e, 127 Tex.Crim. 294, 75 S.W.2d 10% 

(1934), involving the unlawful possession of,a pistol. Attorney General'6 Opinion No. G-4762 in hereby overruled insofar as it conflicts with the instant 

holding concerning the right of peace officerti~to search without a warrant for 

violations of the 'game and fish laws. ~ 

We note that Articles 897 and 923d, V.P.C., expressly confer upon 

the Game and Fish Commission, acting through its duly authorized agents, the 

power to search without a warrant a game bag or automobile when there is reaeon to suspect that such game bag or automobile contains game unlawfully killed 

or taken. See also in this connection Phllllps v. State, 159 Tex.Crim. 286, 

263 S.W.2d 159 (1953); Renfroe v. State, 140 Tex.Crim. 418, 145 S.W.2d 883 (1940). 

.;We believe such power is dependent upon the existence of "probable cau,se" a6 

discussed above. 

Paragraph (5) of Article 4413(U), V.C.S., governs the appointment, 

d?ltieb and powers of Special Texas Rangers. This paragraph,of the statute reads 

86 follows: 

"Special Rangers: The Commission shall have authority to appoint such number of special rangers as may be deemed advisable, 

not to exceed Three Hundred (300) in number; such rangers shall 

not have any connection with any Ranger Company or Highway Motor 

Patrol, but they shall at all times be subject to the orders of 

the Commission and the Governor for special duty to the same extent as the other law enforcing officers provided for in this 

Act; such special rangers, however?; shall not have the authority 

to enforce any laws except those designed to protect life and 

property, and such rangers are especially denied the authority 

to enforce anv laws renulatinn the use of the State highways by 

motor truck and motor buses and&her motor vehicles. - Such 

rangere~~sh~~n~t~receive any compensation from the State for 

their snrv~&?a: ;,p'~~ and -..- before ---_ ~. the ..~ issuance ~~~~~~-~~~~ of .~the commi .ssion each 

such ra 11 enter into a good and sufficient bond executed 

by a Surety Company authorized to do business in Texas in the 

8um of Twenty-five Hundred ($2,5.OO.OO) Dollars, approved by the 

Director, indemnifying all persons against damages accruing aB 

a result of any illegal or unlawful acts on the part of such 

special ranger. All special ranger commissions shall expire on 

January 1st of the odd year after appointment, and the Director 

can revoke any special ranger commission at any time for cause, 

and such officer shall be designated in the Commission as Special Ranger, 
Ror.,cratle :,l.i:yd G. R-d+, Zr., page 4 (S-194) 

"Provideed further ,tkst the Commissian shall net issue more 

than teti,comissions to specia 1 rangers for employment by any 

,one per&., firm cr corpcratkn at any cne time, except during, 

an emergency, .whe.n ir? the cpkion of the Commission it is necessary in the in5erest of the public justice to permit the em-' 

1C. jment of more than ten." (Emphasis curs) 

This office has heretofore ruled that Paragraph (5j of Article 

k&,13(11) contemplat,es the employment of Special Rangers by persons, firms or 

corporations for the prctection cf' private property. Attorney General!6 Opini,on No. O-1951,. A Spectral Texas Ranger is net a peace officer as defined by 

Art,icle 36, V.C.C.P., and ;cr,se!:uerkly a Special Ranger is not charged with 

the duties cf a peace offlce~. lt is 'therefore the opinion of this office that 

Soecial Texas Rangers have IKE author:ty to enforce the,Texas game and fish laws 

'by means of arrests and searches without warrant. 

Peace officers, as defined by Article 36, V.C.C.P., 

have no authority to arrest withclt a warrant for violatiorxs cf rhe game and fl.sh laws. h-tides 212-217, v.c.c.P.; 

Heath va Bcyd, 141 TCJX. 569, I.75 S.W.2d 214, (1943). Peace 

officers are c,evertheless authoriztid to search without a 

warrant fcr violat !,or~,s 0 f the game and fish laws where the 

fact.6 'upon wb.ich the search !s based are sufficient to const :.f'se "prcbabk cause a " Cons+.I.tut:.or. of Texas, Article I:, 

secti.cn 9; Gr!zYey 'in State, 159 Tex.frim. lkl, 265 S0W.2d 

X5 { ;,954) 3 E:;F,rs::.Ct vr State, 27 Tex,Crim. 29k, 75 S.W.2d 

1099 {~ 1gs ; . A??;r,r:iey Genepa;.'s @L&on o-062 ,!s cverruled 

tc, th,e exterit cf conflict herewith. 

.APP f?O’nx : Yoyrs 'very truly, 

>L:o'tzl, Atchison JOI% BEN SEEPPER 

Reviewer Attorney Generai 

D. S. Meredith, Zr. 

Reviewer 

L. W. Gray 

Special Revie~wer 

::<.,:a Ben Shlt:pperd. 

AttS:?ney General 

Assistant