OFFICE OF THE A-ITORNEY GENERAL OF TEXAS 

Honorable Albert J. Huteon 

county Attornry 

Trinity couaty 

Urovston, Texas 

Dear air: Opinion Ho* 

Her Arm 

o&34 

Dl.13‘&Si?l;:!i\~:t;:*- 

jhiir;\\ 

Rq ara la receipt 

--y ‘l 

whlah you ask ths following 

letter or ~T$w& data in 

b” 

way an 0fri0a 

warrant, a Feraon f 

YOU 

(261 359, and 

sited that it 

authoriced to 

‘qusstlon as 8$hte 

) ,without 6 

publlo pleas?” 

tt va. Statr, 124 S.W. 

court 8trongly intior conetable ir not 

ol.raua8tano*s or your 

pal?8 On ill@ In the Court of 

asa, in adtlitfon to agein readhietory of the Bennett cam 

wea aooortad by a polioa offlasr or thr City 

the offloar having recaivsd informetlon that 

ntoxloated aondltion on the publio strerte. 

ppsllent waa In such aondition, arrl attemptad 

t wlthout a warrant. Appellant resisted and 

h anaued, ha took the polia8man1e billy away 

rusk the officer on the heed, infllatlng painful 

wounda. A, byetender same to the ratcue of the policemen, end 

th6 two overpowered appellent, hendonf’fed hipp, and took him to 

the police station. 

The oaea was eppaalad to the Court of Crlmlnel Appeals 

on the ground of ineuffieimvap of the e’cldeme, the oontantion 

being thet einoe ther? wa8 no evidraos of any oonduot on the 

pert of appellant in tha nature of a breaoh of the paaoo, the 
Ronorablr Albert J. Hutton, Fag4 2 

oiiioar hsd no right to arrwt; tharef'ora, appellant wa8 

justffiad iA using reesonabl4 for08 to pl%Vant hi8 Ill4gal 

arrest. The Stats coctanded that oinc4 thars was aoideno4 

or apperllant's being drunk in 4 pub114 plaa4, the orfIc4r 

had th4 rie,ht to.erreet without a warr4nt, drunksnn4aa being 4n offense "against ths public p4ace." Based upon thir 

intarpretation, th6 Ststs oharg4d appellant with aA aggra-, 

vatsd aeeault undar Saction 1 of Artlola 1147, Panal Code. 

Th4 rsaord failing to 8how that notioa of app4al 

was duly raaordsd in the minutre of the court, an original 

oonaidarktlon the appsal was dietissrd (124 S.W. 359). Upon 

parf4OtiOA of tha rooord, the 4pp4al was rrlnrtatad, and th8 

omae rsvarsed ana remendrd. The opinion thus dirsotlng road 

IA part a8 hollows: 

"It does not appear fron thr trstlmony 

that prior to the tims of hip arrant, appallant 

had don4 or said anything whloh would 001~4 rithin tha meaning of a br4aoh or di8burb8AO4 of 

the pace. At the time the offiaer rirat saw 

him, hs was 8tandllllg 1A thr doorway et th4 4lrvator in the Twymoa Bullding within a blook of 

the oourthouss. 

**Art. 212, C. C. F. providea: 

*'A peaer orfloor or any other per8on, nay, 

without warrant, arrert an oifandar when the offen84 is coxnitted In hi8 prrsonos or within hi8 

view, if the oifenre Is on4 olasaed as a l'elony, 

or a8 an offsnee against the publio pea~a.~ 

wTh4r4fore the arrest of appellant wnithcut 

a w4rrmAt wh4n he was oomnittlng neither a breeoh 

of the peace or ta tslony ~48 AOt authoriard by 

law u~lsstp a 10041 ordinanos authorl84d auoh arraet. Sea 'i;llllam v. State, 64 Tax. Criza. Rep., 

491. Sines there la no proof in thi8 rooora Of 

such an orbinanc4, tha question met be doaided 

by Art. 212, C. C. P., a.8 abov4 8(lt out, end the 

g4n8ral laws o!' this stata. 

*In the a444 OS Xlng v. State, 103 S.%'. (2d) 

754, this court aaid: 

"'Dmmk4n~488 la AOt alesaad a8 8 f4lOAy, 

Aolthsr Is it an ofian agahnst the publla pOa40.' 

Vh8 only distinotlon be$w8en th4 iA8t4At 0884 
Bonorable Albert ;r. HUteon, Fagr 3 

end t&m on4 quoted fxm is that th4 o??ioar In 

the latter ease attempted to error& K~ing rlthout a warrant at his r%8id8no%, Wh%r%68 in the 

instant 088% the officer attempted to arrest 

appallant for being drunk in a public place. 

"The state railed to ahow that the pollaeman had a legal right to maka or att&npt to Plakr 

the arrest Without 4 warrant. I? the arrest ~a8 

lllrgal. appellant had the right to resist, or to 

extricate himself rfroA eaid arrest, and under euch 

circumatanosr hacl a right to resort to suoh foror 

4% Was reasonably naoessary to accompllah that 

objcotlve." 

014s 998 

prudenoe 

The State flied a motion ?Or rehearing, Citing Artiand 999, Earls48 Civil Statutes, 1925, I5 Texas Juri8- 

300 end Fratt vs. Brown, 80 Tax. 608, 16 9.H. 443. 

G’pon reooA8ld%ration, the COUrt Of Cri.AiAaI Appeals 

Wltharew lta opinion as partially quoted above, and dlscurelog the authorities olted by the Stat%, granted th4 mOtiOa 8Ad 

ar.rimnd the oasci. The authoritiee cited in the State’s motion 

for rehearing and diecussed by the court eetabliahed the right 

of altv marehala and ~01ic8nen to arrest for dnmk%AAess iA a 

$UbIl4"plao% without warrant on the grotmd that same ooixititutor disorderly conduct per se, irr%op%otlv% o? *ether there 

is additional mfeoonduot aonstituting a breech a? the peaoa. 

That the granting of the State'8 AotlOA was founded on-suoh 

thsory 1s attested~~ty the flaal paragraph8 of Judge Oravee~ 

opinion: 

"ThU8 bell%vlug we hold that pollcenan have 

the power under the statute .to arrest without 

warrant parsons Pouod in a state of drtmkanness 

in n public place, wlthln thslr Jurlsdlatlon, 

and that dmnksnness in such place is dlaordsrly 

conduct. 
Bonorabla Albert J. Butson, Feage 4 

a warrant where the off’ense is commlttrd in suoh 

ottioera’ presenoe.” (Emphasis ours.) 

From the above and r0r4poiag, it ia our opinion that 

unlrsa there is other and addltionul evidenoe than mere lntorloation in a public place, ehsrirra and oonatablas do not 

have the legal right to arrest one so violating Artlolr f,77, 

Yanal Oode, unlree much officers firat prooure a warrant of 

arrest, r&l18 polios orrio0ra or a city may lawfully nmk8 an 

arrest without a warrant under the same etato of faots. Althou&h Ii& opinion In Bennett va. State, rupra, was rrlsaard 

by the aourt prior to our last laglslatlve eeaelon, and appellaut’a motion fir rehearing was overrulad while the Leglolatura was la session, no aznendment to the statute was passed. 

3’0 hare been unable to rind a further rxprrsaion by 

the Court of Criminal hppsale slnor the Bennett ease. In the 

ease of Clark va. Qat, 126 s.i”. (26 I 569, the Court or Civil 

Appeals at 91 Faao held In an opinion mndared January 19, 

1939 (rrhearing denied, Maroh 23, 19391 that ii a deputy shrrirr plaoed one undsr armfit, without a warrant, on a ohargr of 

drunkenness In e public plaoe, the arrrat was a lawful one; 

but inveetlgatlon disoloass a writ oi error was granted by our 

Supreme Court, and the oeae has not yet been disposed of. Regardlass or the outcome or the civil suit or Clark vs. Vr’est, 

since the Court of Crfalnal Appeals is the oourt of 81oluei~r 

and final juriedlotion in orimlnal oasm, ita interpretation 

as stated In the Bennett cars8 is bfnUfng upon peaoe otrioosr8 

in sntororment or t&cd criainal law. 

I * 

Yours very truly