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

County Attorney Wharton, Texas Re: Authority of Special Rangers and Deputy Sheriffs to arrest and searchwithout warrant for Dear Mr. Rust: game and fish violations.

Your request for an opinion reads in partas fpllows:

"Can a SpecialTexas Ranger or Deputy Sheriff arrestwithout
a warrant anyone found violating any~of the game or fish laws and
can such SpecialRanger 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 statutoryprovisions governingarrestswithout ~warrant are comprised in Articles 212-217 of Vernon's Code of Criminal Procedure. These statutesprovide 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 439-489c 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 rulewith respec~t to arrests without warrant:

"The only circumstancesunder which one may lawfullybe arrestedwithout 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 magistratewho verbally orders his arrest, Art,. 213, ibid.; (2)when his arrest may prevent the consequencesof theft, Art, 325, ibid; (3) when a peace officer is informedby a credibleperson 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 foundHonorable Lloyd 0. Runt, Jr., page 2 (S-194)

in euepiciourplacee or under circumatancerrearonably 

### 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 offenoewhen 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'rAnn. 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 arrerrtie controlled entirely by statute, and that the courta of this Statewill 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 inArticle 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 leginlativemandate 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 "searchwithout a warrant" aspect of your queatlon in entirely distinct from and independenkof the question of arrestwithout a warrant. Carroll v. United States, 267 U.S. 132 (1925). In this connectionArticle I, Section 9, of our Texan Constitutionreads 88 followe:

The people ahsllbe eecure in their persons, houses,papers and posseisionr, from all unrerrsonable seizures'oreearchen,aad
no warrant to search e.ny place, or to seize any person or thing, shall iesuewithout describingthem as near a6 may be, nor without probable cause, aupportedby oath or affirmation." (Emphaeir O'crS I

It bar been held that the above-quoted constitutiinual provision only prohibit6 unrearonable rearchesand seizuree. Hughes v. State, 67 Tex.Crim. 333, 149 S.W. 173 (1912). Conflequently a "reasonableeearch'--whichbar been defined by the courta,asbeing a nearchupon "probable cause”--doesnot fallwithin 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, containinga 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.,

supportedby eircumxt~c?a eufficiently,atrongin themEslyea to warrant a cautiourman in the belief that the perllon

accured 16 guilty of the offeneewith 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 dependentupon the facte involved)andHonorable Lloyd G. Rust, Jr., page 

### 3 (S-194)

the fact situationswhich determine~thisquestionare 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 inArticle 

### 36,V.C.C.P., may lawfully searchwithout a warrant a game bag or automobile suspected of containing game unlawfully killed or taken when the officerepossess facts sufficientto constitute "probable cause." Griffey
va State, 159 Tex.Crlm. 141, 

### 265S.W.2d 115 (1954), involvingthe unlawful possession of barbituates; Hobrecht v. St&e, 127 Tex.Crim. 294, 75 S.W.2d 10% (1934), involvingthe unlawful possession of,a pistol. Attorney General'6 Opinion No. G-4762 in hereby overruled insofar as it conflictswith the instant holding concerningthe right of peace officerti~to searchwithout a warrant for violations of the 'gameand 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 searchwithout a warrant a game bag or automobilewhen there is reaeon to suspect that such gamebag or automobile contains game unlawfully killed
or taken. See also in this connectionPhllllps v. State, 159Tex.Crim. 286, 263 S.W.2d 159 (1953);Renfroe v. State, 140 Tex.Crim. 418, 145 S.W.2d 883 (1940). .;We believe suchpower is dependentupon 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 SpecialTexas Rangers. This paragraph,ofthe statute reads 86 follows:

"SpecialRangers: 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 connectionwith any Ranger Company or Highway Motor Patrol, but they shall at all times be subjectto the orders of the Commission and the Governor for special duty to the same extent as the other law enforcing officersprovided 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 renulatinnthe 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:and before the issuance of the commi

;,p'~~ -..----_

~. ..~~~~~~~-~~~~

.~ .ssioneach such ra 11 enter into a good and sufficientbond executed by a Surety Company authorized to do business inTexas in the 8um of Twenty-five Hundred ($2,5.OO.OO) Dollars, approved by the Director, indemnifyingall 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 commissionat any time for cause, and such officer shallbe designated in the Commissionas Special Ranger,Ror.,cratle :,l.i:yd G. R-d+, Zr., page 4 (S-194)

"Provideed

further ,tkst

the Commissian shall net issuemore than teti,comissionsto specia 1 rangers for employmentby any ,oneper&., 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 

### (5jof 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 definedby Art,icle36, V.C.C.P., and ;cr,se!:uerkly a Special Ranger is not chargedwith the duties cf a peace offlce~. lt is 'thereforethe opinion of this office that SoecialTexas Rangers have IKEauthor:ty to enforce the,Texas game and fish laws 'by means of arrests and searcheswithout warrant.

Peace officers, as definedby Article 

### 36,V.C.C.P., have no authority to arrest withclt a warrant for violatiorxscf rhe game and fl.shlaws. 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 searchwithout a warrant fcr violat!,or~,s 0f the game and fish laws where the fact.6'upon

wb.ichthe search !s based are sufficientto const:.f'se"prcbabk causea" Cons+.I.tut:.or. of Texas, Article I:, 

### secti.cn

9; Gr!zYey'in

State, 

### 159Tex.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,eexterit

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