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Honorable Elmer H. Parish District Attorney Wichita County Wichita Falls, Texas

Attention: Shields Heyser

Dear Sir: Opinion No. O-5579 Re: Is a soldier ofthe United States Army amenable to the State Laws ofTexas? And arelated question.

This will acknowledge receipt ofyour recent letter inwhich you pose two questions for this department toanswer. These questions as they appear inyour letter are as follows:
“First, is asoldier of the United States Army amenable to the State Laws ofTexas? Second, does the military law ofthe United States Army supercede all State Laws when the State makes an arrest for asoldier commiting a criminal act against the State of Texas? ”

lows: Title 10, U.S.C.A., Section 1546, provides as fol-

“Delivery of offenders to civil authorities (article 74). P’hen any person subject tomilitary law, except one who is held by the military authorities to answer, or who is awaiting trial
or result of trial, orwho is undergoing sentence for a crime or offense punishable under these articles, is accused ofa crime or offense committed within the geographical limits of theStates of the Union and the District of Columbia, and punishable by the laws ofthe land, the commanding officer is required, except in time ofwar, **upon** application duly made, touse his utmost endeavor to deliver over such accused person to the civilHon. Elmer H. Parish, Page 2 (O-5579)

authorities, or toaid the officers ofjustice in apprehending and securing him, in order that he may be brought to trial. Any commanding officer who upon such application refuses orwilfully neglects, except intime ofwar, to deliver
over such accused person to the civil authorities
or to aid the officers ofjustice inapprehending and securing him shall be dismissed from the service or suffer such other punishment as a court-martial may direct.

‘U’hen, under the provisions of this article, delivery is made tothe civil authorities ofan offender undergoing sentence ofa court-martial, s~uchdelivery, iffollowed by conviction, shall be held to interrupt the execution ofthe sentence of the court-martial, and the offender shall be returned to military custody, after having answered to the civil authorities for his offense, for the completion ofthe said court-martial sentence.”

Title 10U.S.C.A. Sections 1564 and 1565, respectively provide as follows:

“Any person subject tomilitary law who commits murder or rape shall suffer death or imprisonment for life, as a court-martial may direct; but no person shall be tried by courtmartial for murder or rape committed within the geographical limits ofthe States ofthe Union and the District of Columbia intime ofpeace.” “Any person subject to military law who commits manslaughter, mayhem, arson, burglary, house-breaking, robbery, larceny, embezzlement, perjury, forgery, sodomy, assault with intent to commit any felony, assault with intent to dobodily harm with a dangerous weapon, instrument, or other thing, or assault with intent todobodily harm, shall be punished as a court-martial may direct.”

Itis well settled that in time ofpeace a person in the Military Service of the United States who, in any portion of
a state or territory notwithin the exclusive jurisdiction ofthe United States, commits a criminal offense recognized and made punishable by the local laws is amenable to the state or territorial courts therefor. U. S. v. Lewis (C.C. Pa. 1904) 129 F. 825, .Hon. Elmer H. Parish, Page 3 (O-5579)

affirmed 26 S.Ct. 229, 200 U.S. 1, 50 L.Ed. 343; 36Am.Jur. p. 261; 6C.J.S. p. 425. By virtue of section 1546, supra, intime of peace itbecomes the duty of the commanding officer ofa military post upon application duly made to deliver the accused person in military service to the civil authorities or toaid in the apprehension ofsuch offender. A wilfull neglect ofthis duty subjects the commanding officer to dismis,sal from service or other punishment as the court-martial may direct.

A different situation exists however intime ofwar. Itwill be noted in section 1546, supra, that it is theduty ofthe commanding officer to deliver aperson under his command to civil authorities upon application therefor except intime ofwar. Likewise, section 1564, supra, empowers the military courts to punish aperson subject to military law for committing murder
or rape, but pr,ohibits a court-martial to try aperson for such offense intime ofpeace. The contention has often been made that thewording ofthese sections in the,above manner gave the military courts exclusive jurisdiction intime ofwar ofaperson inmilitary service; who commits an offense recognized and punishable by local laws. The courts have consistently held, however, the military courts in time ofwar donot have exclusive jurisdiction
over offenses committed by persons inmilitary service, but rather the military courts and the civil courts have concurrent jurisdiction
over these offenses committed by such persons. Caldwell v. Parker (Ala. 1920) 40 S.Ct. 388. 252 U.S. 376, 64 L.Ed. 621; Kahn v. Anderson (Kan. 1920) 41 S.Ct. 224, 255 U.S. 1; U.S. v. Hirsch, 254 F. 109; 6C.J.S. pn425.

This concurrent jurisdiction in time ofwar ofthe military and state courts over offenses against local laws committed by persons in military service is not inthe true sense a concurrent jurisdiction as generally understood. As a rule the courts of concarrent jurisdiction are on an equal basis and the court which first obtains jurisdiction over the subject matter ofacontroversy will retain jurisdiction until final adjudication andwill not be hindered by any action ofa court of concurrent jurisdiction. This procedure is not followed in determining thejurisdiction between military and civil courts, as the Federal and State courts fully recognize that the military courts have apreference or aprior or paramount right to thejurisdiction over anoffense committed by aperson inmilitary service. The courts are actually not on an equal basis since the Military Courts, ifthey desire, may assume jurisdiction even though contrary to the wishes ofastate court. Ex Parte King, 246 F. 868; People v. Denman, 179 Cal. 497, 177 Pac. 461; Funk v. State, 208 S.W. 509. It is well settled that the military courts can waive this paramount or prior right they possess to thejurisdiction ofanHon. Elmer H. Parish, Page 4 (O-5579)

accused by releasing the custody ofthe offender to the civil authorities or by taking no action whatsoever and thus acquiesce to the civil authorities assuming jurisdiction. Caldwell v. Parker, supra, Colemanv. Fenneser, 97 U.S. 509, 24 LEd. 1118; Funk v. State, supra. Inthe recent case ofEx Parte Sumner, 158 S.W. (2d) 310, the Texas **Court** of Criminal Appeals after discussing section 1546, supra, had the following to say:

“Under this section, two exceptions exist to the application thereof; these are: (a)when the military subject is being held toanswer for trial or is undergoing a sentence for an offense under theArticles ofWarI (b)when astate ofwar exists. The effect ofthese exceptions, then, is to say that, when
astate ofwar exists, or when the subject is being held for trial, or is serving asentence, for an offense punishable under theArticles ofWar, the commanding officer is not required to deliver him to the civil authorities, The reason therefor is obvious, for the civil authorities ought not--especially in time of war--to be empowered tointerfere with the military authorities inthe exercise of control andjurisdiction
over their military subjects. But, whether the delivery ofaparticular military subject into the custody of civil **authorities** for trial would or would not interfere with or hamper the military establishment is a matter primarily within the knowledge of the officers in charge thereof. Such being true, there is nothing to prevent the military authorities from waiving the exceptions mentioned. That such exceptions were waived inthe instant case is shown by thefact that the appellant was by the military authorities delivered into the custody ofthe sheriff for trial. There is nothing to show that the military authorities have asserted any right to proceed against appellant for the offense charged against him, nor that such authorities are investigating, or have made any investigation, relative thereto.”

As towhen amilitary **court** has waived this paramount right or acquiesced is subject to conjecture, for in the case ofEx Parte King, supra, even after the civil authorities indicted a soldier, the military court could intervene and obtain jurisdiction, althoughHon. Elmer K. Parish, Page 5 (O-5579)

inthis case the so-called waiver was said not to come from the proper officers.

We trust theforegoing fully answers your questions. Very truly **yours**

BY Fred C. Chandler Assistant

BY Robert 0. Koch Assistant

FCC:FO ROK:FO

APPROVED SEP 14, 1943 

# is/ G rover Sellers First Assistant Attorney General Approved: Opinion Committee
By /s/ BWB Chairman