THICA~ORNEY GENERAL 

OFTEXAS 

AUSTWJ 11. TEXAU 

WILL WILSON 

A-I-X-• GHXERAI. 

June 24, 1957 

Honorable William J, Gillespie Opinion W-169. 

County ,Attorney 

Lubbock County Be: The use of force by 

Lubbock, Texas law enforcement off icers in exacting 

fingerprints from a 

Dear Sir: person legally arrested. 

Your opinion request of May 28, 1957, presents the 

following quest ions : 

1. May law enforcement officers forcibly 

take fingerprints from a person legally arrested? 

2. In the alternative, may law enforcement 

officers hold a prisoner until he voluntarily 

submit s to giving fingerprints? 

In Qw nsbv + Mo rls. et a& * , 79 S.W.2d 934 (Tex.Civ. 

APP., 19351, th: defeldantrpermitted his fingerprinting and 

photographing under protest. The court stated at page 935: 

I, 

. we do hold that a peace officer who 

has good’c&se to believe and does believe that 

a person is then compounding a crime, for which 

the officer will be under duty to procure his arrest, may detain him, take his fingerprints, have 

him photographed, and otherwise identify him, for 

the protection of society, without being liable 

for damages by reason of such official acts. 

“In the case at bar, appellant was so detained and, after being photographed, etc., was 

permitted to leave.” 

In Bartletta v. McFeela, 107 N.J.Eq. 141, 152 A. 17 

(19301, aff Id. on other grounds, 109 N.J.Eq. 241, 156 A. 658 

(19311, the defendant thrust his hands into his pockets and declared that the prints of his fingers should not be taken. After some discussion, he submitted, under protest, and upon the 

advice of his counsel, and the officer in charge made the fingerprints. The court held: 
- . 

Honorable William J. Gillespie, page 2 (~4-169) 

Vounsel for the complainant contends that 

it is unlawful for the police in any case to 

photograph or fingerprint an accused person before trial and conviction except under the consent of the prisoner. I am convinced that this 

is not the law. The police are charged with the 

duty of preventing crime) apprehending criminals, 

and gathering evidence upon which they may be 

brought to trial. In the performance of this duty, 

they may use any apt and reasonable means which 

do not invade the rights of the accused or of 

other persons. Fanciful rights of accused persons 

cannot be allowe,d to prevent the functioning of 

the police and so to jeopardize the safety of the 

public. . . .” 

The court stated further: 

I, 

. . . Whether any certain prisoner is to be 

fingerprinted and photographed is an administrative question to be determined by the head of the 

police department making the arrest, or by those 

subordinates to whom he may delegate the decision. II 

. . . 

The Court of Criminal Appeals of Texas, in Conne V 

State, 134 Tex.Crim. 278, 115 S.W.2d 681 (19381, held thatrzd-’ 

mission of proof of taking of defendant’s fingerprints while he 

was under arrest did not violate the provision of the Bill of 

Rights in the Texas Constitution (Art. I, Sec. 10) which provides that an accused cannot be required to give evidence against 

himself. 

One of the leading cases on fingerprinting is United 

States v. Kelle 55 Fed.2d 67 (2nd Cir., 

by Judge August& N. Hand. 

1932), with the opinion 

Applicable language from this decision is: 

“We find no ground in reason or authority for 

interfering with a method of identifying persons 

charged with crime which has now become widely 

known and frequently practiced both in jurisdictions 

where there are statutory provisions regulating it 

and where it has no sanction other than the common 

law. 

“The appellee argues that many of the statutes 

and the decisions in common-law states have allowed 
Honorable William J. Gillespie,, page 3 (~~-169) 

finger printing only in case of felonies. But 9 

as a means of identification, it is just as useful and important where the offense is a misdemeanor, and we can see no valid basis for a different iation. In neither case does the interference with the person seem sufficient to warrant 

a court in holding finger printing unjustifiable. 

It can really be objected to only because it may 

furnish strong evidence of a manls guilt. It is 

no more humiliating than other means of identification that have been universally held to infringe 

neither constitutional nor common law rights. 

Finger printing is used in numerous branches of 

business and of civil service, and is not in itself a badge of crime. As a physical invasion it 

amounts to almost nothing, and as a humiliation 

it can never amount to as much as that caused by 

the publicity attending a sensational indictment 

to which innocent men may have to submit. 

11 

. . . We prefer, however, to rest our decision upon the general rights of the authorities 

charged with the enforcement of the criminal law 

to employ finger printing as an appropriate means 

to identify criminals and detect crime. 

“The taking of photographs and fingerprints 

cannot be regarded as a penalty. If it were, such 

records could never be made. An accused cannot 

be punished before trial, nor, in the absence of 

special statutes, could such a ‘penalty’ be included 

in the sentence after conviction. In this regard, 

taking photographs and fingerprints must be considered the same as eny other administrative procedure of the police to which an individual must, at 

times, be subjected for the common good.” 

The exaction of fingerprints by law enforcement officers over the objection of a person legally arrested does not 

violate the privilege against self-incrimination, nor does it 

violate individual privacy. 

Since an objection to fingerprinting by a person legally arrested is to no avail, law enforcement officers may employ such force as is reasonably necessary to accomplish the 

fingerprinting. 

Since fingerprints may be exacted by law enforcement 

officers, using such force as is reasonably necessary, and since 
Honorable Villiam J. Gillespie, page 4 (~-169) 

the second question asked is phrased in the alternative, its 

answering is unnecessary. 

Law enforcement officers may use such force 

as is reasonably necessary in the exaction of 

fingerprints from a person legally arrested. 

Very truly yours, 

WILL WILSON 

Attorney General of Texas 

John Ii. Lennan 

JRL:pf:wb 

APPROVED: 

OPINION COMMITTEE: 

H. Grady Chandler, Chairman 

Jas. H. Rogers 

John H. Minton, Jr. 

Jack Goodman 

REVIFWED FOR TRE ATTORNEY GENERAL 

BY: Geo. P. Blackburn 

Assistant