Honorable Joe Resweber

County Attorney Harris County Courthouse Houston, Texas 77002 Opinion **No.** H-1029
Re: Authority of local peace officers to arrest illegal &liens without a warrant. Dear Mr. Reswebcr:
You have asked our opinion whether a Texas peace officer **may** arrest and detain aperson without awarrant because the officer has reason tobelieve the suspect tobe an alien who has illegally entered theUnited States. An alien who illegally enters the country or eludes examination or inspection by immigration officials commits a federal misdemeanor offense for the first such violation. Subsequent offenses are classified as felonies. 8U.S.C. S 1325.
A Texas peace officer may arrest an offender without a warrant "for any offense committed inhis presence orwithin his view." Code Crim. Proc. art. 14.01(b). Hemay also arrest, without awarrant,

persons found in suspicious places and under circumstances which reasonably show that sl!chpersons have been quilty of some felony or breach of the pcacc:, or threaten, or are about to commit some offense against.the laws. Code Crim. Proc. art. 14.03. Article 14.04 of the Code of Criminal Procedure likewisl!iluthorizesapeace officer to arrest a suspect without warrant upon the representation of a credible per-sonthat a felony has hccn committed and upon satisfactory proof that the,offender isabout to escape, so that there isno time toprocure awarrant. The United States Supreme Court has construed similar language to authorize state officers tomake arrests for federal offenses. United States v. Di Re, 332U.S. 581 (1948). _._.---__

r’.4240._ .

**In** such a case the lawfulness of an arrest without warrant is

to **be** determined by reference to State law. Miller v. United States, 357U.S. 301 (195fo;United States v. -Texas Court of Criminal A%&ls has aoocr theauthority of State office;.;tomake arrests f'orfederal offenses as long as procedures "conform to the state practice in similarmatters. except where otherwise especi~allyprovided for.
. . ." Ex parte Jones, 208 S.W. 525 (Tex.Crim. App. 1919). This isconsistent-with the view adopted **by** courts with reference to the laws of other States. SeeMarsh v. United States, 29F.213172 (2ndCir. 1928); Unea Leland, -. 376F.SUDD. 1193 (D.Del. 1974): United Bumb' -- ola, 23F.2d'696 (N.D.N.Y. 1928);.Whitlock E-m -lo.ItaLA.2. *;1>v,. 7br ,a..:" ,OL"\

We believe this general rule isapplicable to thepower of State officers tomake arrests for immigration offenses. The power to regulate immigration isun~questionablyexclusively a federal power. The Constitution nonetheless leaves **room** for consistent State and federal action unless Congress has manifested a clear intention topreempt State power. De Canas v. Bica, 424U.S. 351 (1976). While Congress has specifically conferred upon certain officers of the Immigration and Naturalization Service (INS) thepower to arrest without warrant any alien who is entering or has entered the country illegally, 8U.S.C. 9 1357, ithas nowhere indicated an intention to eliminate thepower of State officers to arrest aliens illegally in the country, where authorized by State law.
We turn, then, to thepower under State law of Texas peace officers to arrest aliens illegally in the country. Clearly an alien committing an offense **against** the laws of this State may be arrested under the same terms as any other person. If local officials perceive a likelihood that an alien incustody on other charges has entered the country illeyally, they should notify federal INS officers of their suspicion, and **may** release the suspect to the custody of federal officials after disposition of State criminal charges.
Texas peace officers do not, however, have authority to arrest an individual.solely upon suspicion that he **has** previously entered the country illegally inviolation of 8U.S.C. 5'1325, unless theofficer **has** probable **cause to**  believe that the suspect iscommitting dn illegal entry or elusion inthe ~officcr's presence, or **has** committed a second or subsequent offense under section 1325. A first offense under 8U.S.C. S 1325 isamisdemeanor, **and** we do not bclicve itwould be consider.!da **“ breach**  of the pcacc" under standards set out **by**

p. 4249, Texas courts. See Woods v stab2

_ -L---' 213 S.W.2d 685 (Tex.Crim. App. 1949); Head v. State, 96S.W.2d 9A1 (Tex.Crim App. 1936). Thus, neither article 14.03 **nor** 14.04 of the Code of Criminal Procedure would authorize arrest, and article 14.01would authorize arrest only if an offense is committed in the presence of the officer. Article 14.01 would authorize aTexas peace officer to arrest without warrant an alien who actually makes an illegal **entry** into the country or eludes examination or inspection by immigration officials in the officer's presence. An illegal "entry" into the country isclearly different, however, from illegally "remaining" in the country. United States v. Evans, 333U.S. 483 (1948). Illegally remaining in the United States likewise does not, in itself, constitute "eluding" examination or inspection by immigration authorities. Alves v. Shaughnessy, 107 F.Supp. 443 (S.D.N.Y. 1952). While the crime of entry may continue-"at least until the alien has reached a 'placeo? - temporary safety,"' Letter fromAttorney General of California toAssemblyman Peter R. Chacon at 5 (Aug. 8, 1973) (Re:I/L CR 73/24. noted at 56Ops. Cal. Atty. Gcn. XVI), it isnot an affense of infinite duration. See United States v. Mallides, 335 F.Supp. 1 (S.D.Cal. 1972), rev'd on other ,roun$s, 473 F.2d 859 (9thCir. 1973). Whether anmga *entry or elusion" isoccurring inan officer's presence will necessarily depend on the facts of each case. Articles 14.03 and 14.04 of the Code of Criminal Procedure could also. ifthe conditions set forth therein are satisfied. see Milton-v. State, No. 53,332 (Tex.Grim. App. April 13, 1977), Ehorlze arrest upon probable cause tobelieve the suspect has committed a felony-violati~onof immigration related ,laws. See, e.g., 8U.S.C. 9 1325 (second or subsequent illegal entry); 8 U.S.C. S 1326 (reentry of deported alien); 8U.S.C. 9 1252(e) (failure todepart after <lrclcr of deportation): 8U.S.C. 9 1185 (violation of **entry** a1111 exit controls during time ofwar or national elllc~r(l~?I~~~~) ; 10 **1I.S.C.** 9 911 (fal:;c* representation of citizenship); ISU.S.C. $9:1426, 1546 (possession of false citizenship, immiIjrat.ion or uatur.llizationdocuments); 1RU.S.C. App"rldix9 1202 (rcccir)t., )>osscbssion

or transportation of a firearm in intorstatc or inC<*rnationolcommerce by an alien illegally in thckUnited St.Itl,*s)
. In the absence of these spccial circumstances, howevc,r,Texas peace officers **may** not arrestwithout warrant an alien solely upon the suspicion that he has entered the country illegaliy. SUMMARY
**A** Texas peace officer may make awarrantless arrest of ,analien upon probable **cause** tobclievl.: tllatan illegal entry

I’.4250Honorable Joe Resweber - Page 4 (H-1029)

has occurred **in** the officer's presence, or.,**if** the requirements of article 14.03 or 14.04 of the Code of Criminal Proce**dure** are satisfied, that the suspect has committed a felony offense under the immigration laws. Aliens **may** be arrested for violation of State criminal laws on the same basis as other persons, and State officers may notify federal officials when such aperson is suspected of being illegally in the United States and turn the suspect over to federal officials after disposition of State criminal charges. A Texas peace officer **may not**  arrest **without** warrant an alien solely upon the suspicion that he has entered the country illegally.

Attorney General of Texas



# (7 C. ROBERT HEATH, Chairman Opinion Committee klw

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