June 16, 1977

The HonorableGene Russell CountyAttorney Burnet County Burnet, Texas 78611 OpinionNo. H-1016 Re: Authority of sheriff tomake arrestsoutside his county. Dear Mr. Russell:
you have requested our opinion whether a sheriffmay make an arrest outside of his county for an offense committedoutside of his county if the offense is committed in his presenceor within his view. The authority of a sheriff tomake arrests for offensescommitted outside of his countywas examined in Henson v. State, 49 S.W.Zd 463 (Tex.Crim.App.1932). The court reviewed thepertinent statutesand authorities and summarized them as follows:

The sheriff is a conservatorof the peace in his county.
. . . -- C.C.P. art. 41;presently C.C.P. art. 2.17.

It is his duty to preserve thepeace within his jurisdiction.

. . . -- C.C.P. art. 37;presently C.C.P. art. 2.13.

Inperforming this duty he may, in meeting with resistance in the discharge of any duty imposed upon him by law, summon citizens of his county to overcome the resistance.

. . , C.C.P. art. 38;presently C.C.P. art. 2.14.

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The same statutesrespecting the authority tomake arrests and execute process in criminal cases govern sheriffs and state rangers, except that state rangers have the power tomake arrests in any county

-- in the state.
. . . A-- (Emphasisin original). V.T.C.S. art. 6570;presentlyV.T.C.S. art. 4413(11)(4).

Article 223, C.C.P., [presentlyC.C.P. art. 15.061,authorizing the execution of a warrant of arrest by a sheriff under the conditions stated in the article in any county in the state, is not deemed to have the effect to extend generally the jurisdictionof a sheriffbeyond the borders of his county. In the absence of a warrant of arrest issuedunder the provisions of article 223, supra, a sheriff as such is not authorized tomake an arrest outside of his county.
. . . . The following is taken from 2 Ruling Case Law. p. 469: "Apublic officer appointed as a conservator of the peace for a particular county ormunicipality as a general rule has no officialpower to apprehend offenders beyond theboundaries of the county or.district forwhich he has been appointed * l l Where the sheriff of a county attempts to make an arrest in another county, without a warrant, he is usually considered as having only the authority which a private person may have in apprehending criminals. l l *" In thepresent case, the relation the officers bore to the searchwas that of private citizens. No conditionswere present which would have authorized a private citizen to arrest appellant. Id. at 465. -

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We note that every statutoryphrase emphasizedby the Henson court remains essentially intact. While article 4413(U) was amended in 1971, it still provides that State Rangers shall have the same powers and duties of sheriffs:

except that they shallhave the power and be authorized tomake arrests and to execute all process in criminal cases in any county in the State. V.T;C.S. art. 4413(11)(4). The implication is that sheriffs have narrower territorial jurisdiction.
In 1967 the legislatureenacted article 14.01(b)of the Code of Criminal Procedure,which provides:

A peace officermay arrest an offender without a warrant for any offense committed in his presence or within his view. Article 14;01(a), formerly article 212, C.C.P., contains language parallel to that of article 14.01(b)but is limited to offenses classed as feloniesand offenses against the public peace. Article 212was referred'to in Henson and the court clearly held that outside of an officer-jurisdiction he acts as a private person: see also Ward v. Texas, 316U.S. 547 (1942);Hooper v. DeisEi,m~ SxZd-?%63ex. Civ.App.
--Amarillo 1938, no writ), thus suggesting that language such as that contained in article 14:01(a)-or 14.01(b) is insufficient to authorize a sheriff to make arrests outside his county. However, in 1968 the Court of CriminalAppeals suggested in dictum that the enactment of article 14.01(b)would authorize a city policeman tomake an arrest outside his city. Buse v. State, 435 S.W.Zd 530 (Tex.Crim. App. 1968). In 1973, article 14.01(b)and Busewere cited along with several well established exceptionstothe Henson rule to uphold an arrestmade by a policeman outside FhiTty limits for an offense committed inside the city. Green v. State, 490 S.W.Zd 826 (Tex.Crim.App. 1973). -- Since the referencewas not necessary to the court's holding it, too, is considered to be dictum. Ex parte Coffee, 328 S.W.Zd 283 (Tex.1959); Ball v. Davis, 18 S.W.Zd 1063 (Tex.1929); 153 S.W. 1126 (Tex.1913):Belote v. State., fZ$gY&;*' (Tex.Crim. App. 1933). We%ve examined the briefs submitted to the Court of CriminalAppeals in both Buse and Green, and

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thepossible application of article 14.01(b)was not urged in either instance. Furthermore, article 14.01(b)and Buse were cited by the court as merely suggesting the conclusion rather than directly supporting it. Harvard Law ReviewAssoc., A Uniform System of Citation 86-87 (11thed. 1967). While it is important to be aware of the dicta in Buse and Green and to understand that it ispossible that itmay be a-indication that the courtwill find that article 14.01(b) has overturned the Henson rule, we do not believe that the dicta in these two cases can be construed as finally resolving the question. Accordingly, until the Court of CriminalAppeals makes a more direct ruling on the question, we believewe must advise you that the sheriff of one county probably has no general authority tomake arrests in another county. You also ask if a sheriff canmake an arrest 400 yards beyond the county lineunder the authority of article 13.04 of the Code of Criminal Procedure. Article 13.04,which indicates that an offense committedwithin 400yards of a county linemay be prosecuted in either county, does not authorize a peace officer tomake arrests in the 400yard zone in another county. See Ledbetter v. State, 5 S.W. 226 (Tex.Ct. App. 1887). -.- SUMMARY A sheriff shouldnotmake arrests outside his county for offenses committed outside his county except as he is authorized to do so as a private person under article 14.01(a) of the Code of Criminal Procedure or where the offense iswithin an established exception to the Henson doctrine. truly yours,

$tll

. Attorney General of Texas APPROVED:

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C. ROBERT HEATH, Chairman Opinion Committee km1

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