OFFICE OF THE ATTORNEY GENERAL OFTEXAS 

AUSTIN 

Tsxas State forks Domd 

Austin, Texas 

Gentlemsn: Attention: Hon. ‘Sill Xaan 

Chief Glerk '! 

,^.~ ,,,, 

opiniod. Fo. mo-s71gK -.-~‘---.. 

Richardson, 

Ret Authority of keepers ot State Farks 

to arrestor eject for~disburbing the 

peaoe and bo arrest or eject,a porsou 

disobeying rules and reGu.lafions ot 

ParKBoard I 

This will aoknov&ebge~rsoelpt or your request 

that this Deparfunent give yoults opinion relative to 

the authoritp.of keepers, ~apgod.uted by the Texas State 

Parka Board,,by suthority of~.+rtSqle 6069, Revised Civil 

Statutes of Texas&lqa5, and‘-its,>answer to certain 

questions:, whloh v~.hava. for convenience restated as 

r0ii0~63: \ 1, 

>\, Alld *ih‘B, ketaper arrest a yareon 

,/' 

i' "~%stur&xg the peaoe In a State Park, and take 

, ~~,hfio: before',? Just&e of the Feoce? 

,,' ." / ,' 

i ((' ,& Vou&,a keeper be justified in using 

\ 

'x. 

\, for? to.tject from the Ferk suoh a disturber 

'\ 

\,,,of th? poaae? 

, :' \ '\, 5. Could suah a keeper arrest e person for 

&il?g or using intorlaating bevarages in a 

state park in violation of a rule or rules, promulgated by the board, prohibiting same2 

4. Could such a keoper,eject from the park, 

a person found violating tha' rules or rules referred to in r:uestfon Z~above? 

The power aad duties of the State.Parks Board 

are set out in Artioles 8007-6077, inclualve, and Article 
. ., 

Texas State Parks Eoard. Pape 2 

608le, sections 3-5, 2,. C. s. of Texss, 1925. The 

authority for hiring a keeper is contained in the 

second peraercrph of Article 6009, 3upr2, -hioh we 

quote: 

*It shall further be tho duty of sold 

3on::d to 3rranC;o for or employ a keGper in 

each oi‘ the Stste i;arks under the control 

of Yeld Stuta Perks Eoard, .xho shall be 

clothed with all the powers and authority 

of s peace officer of the county, for the 

purposes of oaring for snd proteoting the 

property wlthin aald parks.* 

The last olause in the above quoted paragraph 

suggests the question, whathur it should be interpreted 

as llmitihg the exercise of' the keeper's powers and 

authority as a peaoe officer to "caring for and proteoting the property within asi. Farits", or whether It 

aerely explains why the Legislature sm fi?. to provide 

for a keeper. In our opinion, the latter interpretation 

is proper. This view io etrenathened by the probabllity that large nwnbers of people will congragate In 

the parks from tine to time, %ho should be given some 

protection, in addition to that normally furnished by 

the aounty peaoe otficera. xl' the-clause In question 

were interpreted to so liait the keeper's powers and 

authority es a peaoe offlaer, he would have no more 

authority to protect persons seeklug rest, recreation, 

and pleasure in the parks, than would any other private 

citizen. 

The~powers and duties of a county peace offiaer 

are ooinoident with those of sheriff' and constable. Code 

of Criminal Pro&, 1925, Art. 36. They are those set 

out in the Constitution and Statutes of this state, subject, of aourse, to the construction plsoed upon them by 

the aourts. 

My question as to the oonstStuti.onallty of a 

statute clothing others than thosa set out in the Constltution prith the powersol s peace ofricer, is settled by 

the case of heff Y. i;l;in, 270 2. .;. ii73 (xrit of error 

rcfussd), .&eroin the court said: 

"There is no provision of the Zonstltution expressly denying to the Leclslature 

the power and authority to cr,eute other 

agencies than those noned in the Constltutisn for the prcaervation of lm and~the 
Texas State Parks Eoard, ?aga 3 

SUppr8SsiOIl 3f Cri3l8. There is nothing 

in the Constitution that by legitimate implication forbids other agenciee %han those 

named for upholding and enforcing law and 

preserving order and peace." 

Coning now to your first ;uestlon, it is our 

opinion that the Zeeper of a state park. not only aan 

arrest a person for disturbing the peeoe in the Dark, 

but that it is his dut to do so; and further, &at h8 

Oall tak8 the p8rSOn -Ii-$ e ore a Justice Of th8 P8fiO8 iOr trial. 

The qUOt8d al-tic18 giV8S the k88&W the POlrerS 

and authority of a oounty peaoe 0rri08r but doss not 8xPreSSly inpOe UpOn him the dUti0S Of s pea08 OfricsL -. 

However, the article whioh provides t 8 

'peeoe offioer, Code.of Grin. eroo. 2 

pOW8rS Or a 

19 3, Arti 39, also 

Imposes upon him certain duties, and WC thinkthey sre 

corollaries, one of the other. These dUti8a bposed on 

a1.l p9808 OffiO-erS Would, therefore, b8 impOS8d OR a 

keeper. obviously, the pUlZ9OS8 of the LegialatIlre in 

oonferring the poW8I7S and authority 0r .a peace olfloer 

On the keeper of 8 Stat8 park was to aid in Oaring for and 

protecting the property within the pa~rks and to proteot 

those persons ohoosing to come there for reoreation. Can 

it be Said that the failure of the Legielature.~o~,erpressly Impose the dUti8S or a peace orrioar on such a keeper 

has the Srf8Ot of making it optional with him, either to 

arrest or not to arrest, for's violation of the law wlthin the park? To ask the question Is to answer It. 

With reference t0 your SeOOnd question, it iS 

our opinion that the keeper of a state park would not be 

authorized to US8 rorce to ejeot a m from the -park 

ror disturbing the peaoe. His olcar duty in suah an inetanoe would be to arrest the violator. He would be authorized to us8 suoh rOrQ8 es ressonably necessary to 

eff8Ot the arrest, and no more. Skidmore V. State, 43 

Tex. 93. The authority of a peace OffiCSr t0 use for08 

obtalne only during the course of an arrest, and the use 

of force to eject e disturber of the peace trom the park 

not as a part of an arzcst, rould bo without the limits 

or that privilege. Hudley V. Jtatx?, 01 Tez.,Zrlm. 28&J. .Ts 39, 194 S. !J. 160. Ghould S keeper attempt to forcefully 

eject a person, not as a part of an arrest, he xould be 

guilty or an assault and battery. 2kidmorc v. State, 

supra. 
%ex:2a Stste l,arks ?oard, Taqo 4 

‘The ‘I‘ox~c 3tst.e Tarks Zo:.! :d91s the right 

to promulgate rules and regulations uncer Artiolo 

5070e, ::. 7. 2. or TexS8, 1925, pslji?ch abbe quote in 

part: 

“Sac. 1. The Ztrsta Park Poerd is hcrcby 

:mthorlzed to grent oonoession in &ate ?arks 

and to make oonoession oontrscts for any causeWY. beach drive or othar iimrovements in connebtion with Stat8 Park sites, wherever feasible. The IfACnfeiI tall 88m8d by the Stcte Parks 

Board shall. when oolleotod be plaozd In the 

ststc Tr8aslry. The Poerd xay mke suoh rules 

and r*maletions for the carrying out of c 

kat anti the la 8 or this State relative to 

State Packs, as ft away d8CIU neoesscry not In 

oonrllot with law.* (zmpiibJE+l ours). 

Rut, has the keeper the right to make an arrest :‘or the 

violation of the rules an suoh, th-t is, if x right to 

arrest k0ula sxist exoept for the rule, 00Uia the rule 

alons oonfsr that right on the keeper, or any pedce offluer? Clearly, a violation of a rule of the Roard alone 

OennOt to the pr8diaat8 for an ulT8at.. There mustbtr 

some other authorlty& the eot must have been made a penal 

offense by statute. &ma1 Code, 192S, hrticles l-3. 

Bi%~h- :eqa?d to a keeper’s maklng an arrest 

for a violation of the rule prohibiting the posaeaeion 

of~an lntoxloctlng Betasago in a state perk, It Is our 

opinion, and you are so advfecd, that he aould not legelly do ao beoausa lpere, uae of intoxicating liquor is 

not a orime in Texas; the manner in whioh l,t la sl:d or 

the aotion end oonduot of a person aoccmpang?ng or reaulting lram suoh ~8% mey or zay not OCnStitUt8 the 

bs.sis for an ervest. The Ler~lsleturre has not seen fit to 

uake mere use Of intoxioeting beVera@ 3 pMal Off%RS8v 

nor 'ma it mde it a ~ennl offense to violate cartein 

rulea end r,~nulatlons of the Yt*>te Ca:,ks Eoerd. I4af or4 

an set Is one vhlch will justify an arrest :n Texoa. it 

xust have besn lladc c r:enal crf3w8 am E ;unIshr?lent 

p70viba, 5~ 3t..3ttm3. ?e:nal ..:a:~, 1$:!5, iL~t!cles l-3; 

Kerley v. St2te, 89 .:'ex. :r. 'T::-,p. 199, 230 ‘. -. 163. 
Jw(~ar5ln~ the authority of a ks*~or to arrest 

2 yrson 5or 3eiiin.r intoxfcoting teuerl~qe3 :A e sty-:to 

park, hs n:Fht ri>vw .?uch >$uthorlty, but i: would hot be 

bcc?use it constituted a violation or tho rule promulCated by the Eoard. It would be because it saa prohlblted by 3me provision of tha Texas Liquor Control .:&at., 

Title II, :ha?twr 8, ,;rtlcloe 606 and 667, Penal -ode, 

1325, or other statutory provision prohlbltlng sme. 

IP a peraon vere cau6ht in a state park violsting the 

statutory lm Ath regard to the sale of. intoxicating 

liquor, Y keeper would have the ~XW right to arrest as 

would any peaae offloer. 

. *.e gusn hem to note thnt the rule of the 

State Parks Roard reR3rdlhg the ml0 of intoxicants in 

the parks is not nholly ineffective. ,it doas deiine 

the policy of the Board,wlth regurd to the sale of intoxloants in state parks. For example, the oonoesaionalrws 

ogarating as they do under contracts 4th the ?.?oard,~rould 

be subjeot to such rules and regulations, if msdaoonditlons in their contracts. artlole 60708, b, aupra. 

Ylthout a, right to sell on the pra?nises- desoribed in their 

applloatloa, they could cot get a permit from the Texas 

Liquor Control Eoard. They, like any other person selling 

1Lquor in the garks, without auoh a permit would be subjeot 

to errest. /.rtiole 666, supra. 

Then, in snsmr to your third question, ft la 

our opinion that the keeper ot a stste park oannot legally arrest a person for vlolatlnC the rule promulheted 

by the Fonrd prchibiting the able OS liquor in state 

parks, as buoh, but oan legally srrest a person when a 

violation of the rule also constitutes a violation of the 

lar reguletlnf: the srle intoxicating bevercpes Fenerolly. 

Tour fourth question has been sns*ered under 

:!uestiona two and three. You did not use the term force 

in your :curth Question but *ue do not think that would 

altar cur ~As,.er a3 the aord eject, au us& in this 

iAstaAC9, connotr?s that such zeana till1 ba used 33 nacesssry to aocomplish a physIci ejection. IhiS, to lq, 
36:ms fdrae, ilot verbal persuaalon. ~3len ( ~asent?liAg 

that gcumean 3jeotion by ioroe, it ?a our opinion 

tkizt the ko,sper ar a state Fork cermot ,l-r~:lly eject 

a prson therefrom for violating the Emrb*a rule 

prohibitinp the s::lo or uae of lntoxioatl~fi beveracos 

in the ~33cic for the reason3 riven in ~~3;:er t.2 .pestion 

numbel. two. 

In this oonnectiott, however, yl'e wish to dimot 

your ettsatlon to the laot that ?-hen usinv the tern, "3~ 

arrest*, we retwr to a 'le+l'* mrsst. 'The 1sz.e of Tex-a 

expressly zmke legal arrests of on ofrdader xlthout 

warrant, In oertain oaeea only, e.-g. hhon the otisnae 

is oomnltted 1A the presence or xlthln the VBW oi the 

offioer, if the-offense Is one alsamd RS -2 falouy, or 

as BA ~'offenaa e@IiAst the public 3enae*. (zt. 212 

C.C.2. 1933, st. seq.) iiksrlae, on 0f:tioer cay arrest, 

rftbout warmnt, on tbe rerbol order of a mgiatrcte 

IS the felony or breuch OS the peeae has been mmmittcd "In the presence or within the view" of auob 

aa~iatrota. There are other exoeptlona xhere an srreet 

nit&out warrant Is gemltted (auoh ea tar violation 

of the lame rwpulatfng motor oehlales, f~lona shout to 

esoqae, persons carrying ille& firaerm, sto.), but 

my erreat without warrant to tm leeal auat UOIP, vitbfn 

the acop of tha exoeptiona to the general rule. Ctberwise, the officer, to lm protested, ffiust procure a we+ 

rant. See nuthe%;ford YQ. state, Z83 2. :;. $12; Lynob 

vs. 8tate. 57 1. it. 1120; '-fi.lllsaa ra. 3+xte, 14.2 5. ;::* 

900. 

e ::ust that this satisfsatorily azxa=?r8 :our 

inquiry. 

Yours very truly 

CXXZ'::& SF TlfX.S