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 a person without a warrant because the 

officer has reason to believe the suspect to be an alien who 

has illegally entered the United 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. 8 U.S.C. S 1325. 

A Texas peace officer may arrest an offender without a 

warrant "for any offense committed in his presence or within 

his view." Code Crim. Proc. art. 14.01(b). He may also 

arrest, without a warrant, 

persons found in suspicious places and 

under circumstances which reasonably 

show that sl!ch persons 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! iluthorizes a peace officer to 

arrest a suspect without warrant upon the representation of 

a credible per-son that a felony has hccn committed and upon 

satisfactory proof that the, offender is about to escape, so 

that there is no time to procure a warrant. 

The United States Supreme Court has construed similar 

language to authorize state officers to make arrests for 

federal offenses. _._. United ---__ States v. Di Re, 332 U.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, 357 U.S. 301 (195fo; United States v. 

-Texas Court of Criminal A%&ls has aoocr 

the authority of State office;.; to make arrests f'or federal 

offenses as long as procedures "conform to the state practice 

in similar matters. except where otherwise especi~ally provided 

for. . . ." Ex parte Jones, 208 S.W. 525 (Tex. Crim. App. 

1919). This is consistent-with the view adopted by courts 

with reference to the laws of other States. See Marsh v. 

United States, 29 F.213 172 (2nd Cir. 1928); Unea 

Leland, -. 

376 F.SUDD. 1193 (D.Del. 1974): United 

Bumb' 

-- 

ola, 23 F.2d'696 (N.D.N.Y. 1928);.Whitlock 

E-m -lo. ItaLA.2. *;1>v,. 7br ,a..:" ,OL"\ 

We believe this general rule is applicable to the power 

of State officers to make arrests for immigration offenses. 

The power to regulate immigration is un~questionably exclusively a federal power. The Constitution nonetheless leaves 

room for consistent State and federal action unless Congress 

has manifested a clear intention to preempt State power. 

De Canas v. Bica, 424 U.S. 351 (1976). While Congress has 

specifically conferred upon certain officers of the Immigration and Naturalization Service (INS) the power to arrest 

without warrant any alien who is entering or has entered the 

country illegally, 8 U.S.C. 9 1357, it has nowhere indicated 

an intention to eliminate the power of State officers to arrest 

aliens illegally in the country, where authorized by State law. 

We turn, then, to the power 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 in custody 

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 in violation of 8 U.S.C. 

5' 1325, unless the officer has probable cause to believe that 

the suspect is committing dn illegal entry or elusion in the 

~officcr's presence, or has committed a second or subsequent 

offense under section 1325. A first offense under 8 U.S.C. S 

1325 is a misdemeanor, and we do not bclicve it would be consider.!d a “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, 96 S.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 14.01 would 

authorize arrest only if an offense is committed in the presence of the officer. 

Article 14.01 would authorize a Texas 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 is clearly different, however, from 

illegally "remaining" in the country. United States v. Evans, 

333 U.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 'place o? - 

temporary safety,"' Letter from Attorney General of California 

to Assemblyman Peter R. Chacon at 5 (Aug. 8, 1973) (Re: I/L CR 

73/24. noted at 56 Ops. Cal. Atty. Gcn. XVI), it is not 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 

(9th Cir. 1973). Whether anmga *entry or elusion" is occurring in an 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. if the conditions set forth therein are satisfied. 

see Milton-v. State, No. 53,332 (Tex. Grim. App. April 13, 1977), 

Ehorlze arrest upon probable cause to believe the suspect has 

committed a felony-violati~on of immigration related ,laws. See, 

e.g., 8 U.S.C. 9 1325 (second or subsequent illegal entry); 8 

U.S.C. S 1326 (reentry of deported alien); 8 U.S.C. 9 1252(e) 

(failure to depart after <lrclcr of deportation): 8 U.S.C. 9 

1185 (violation of entry a1111 exit controls during time of war 

or national elllc~r(l~?I~~~~) ; 10 1I.S.C. 9 911 (fal:;c* representation 

of citizenship); IS U.S.C. $9: 1426, 1546 (possession of false 

citizenship, immiIjrat.ion or uatur.llization documents); 1R U.S.C. 

App"rldix 9 1202 (rcccir)t., )>osscbssion or transportation of a 

firearm in intorstatc or inC<*rnationol commerce by an alien 

illegally in thck United St .Itl,*s) . In the absence of these spccial circumstances, howevc,r, Texas peace officers may not arrest without warrant an alien solely upon the suspicion that 

he has entered the country illegaliy. 

SUMMARY 

A Texas peace officer may make a warrantless arrest of ,an alien upon probable 

cause to bclievl.: tllat an illegal entry 

I’. 4250 
Honorable 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 Procedure 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 a person 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 

p. 4251