. . . P. 

Honorable Elmer H. Parish 

District Attorney 

Wichita County 

Wichita Falls, Texas 

Attention: Shields Heyser 

Dear Sir: Opinion No. O-5579 

Re: Is a soldier of the United 

States Army amenable to 

the State Laws of Texas? 

And a related question. 

This will acknowledge receipt of your recent letter in which you pose two questions for this department to answer. These questions as they appear in your letter are as 

follows: 

“First, is a soldier of the United States 

Army amenable to the State Laws of Texas? 

Second, does the military law of the United 

States Army supercede all State Laws when 

the State makes an arrest for a soldier 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 to military law, except one who is held by the military 

authorities to answer, or who is awaiting trial 

or result of trial, or who is undergoing sentence 

for a crime or offense punishable under these 

articles, is accused of a crime or offense committed within the geographical limits of the States 

of the Union and the District of Columbia, and 

punishable by the laws of the land, the commanding 

officer is required, except in time of war, upon 

application duly made, to use his utmost endeavor 

to deliver over such accused person to the civil 
Hon. Elmer H. Parish, Page 2 (O-5579) 

authorities, or to aid the officers of justice in 

apprehending and securing him, in order that 

he may be brought to trial. Any commanding 

officer who upon such application refuses or wilfully neglects, except in time of war, to deliver 

over such accused person to the civil authorities 

or to aid the officers of justice in apprehending 

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 to the civil authorities of an offender undergoing sentence of a court-martial, 

s~uch delivery, if followed by conviction, shall be 

held to interrupt the execution of the 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 of the said court-martial sentence.” 

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

“Any person subject to military 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 of the States of the Union and 

the District of Columbia in time of peace.” 

“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 do bodily 

harm with a dangerous weapon, instrument, or 

other thing, or assault with intent to do bodily 

harm, shall be punished as a court-martial may 

direct.” 

It is well settled that in time of peace a person in 

the Military Service of the United States who, in any portion of 

a state or territory not within the exclusive jurisdiction of the 

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; 36 Am.Jur. p. 

261; 6 C.J.S. p. 425. By virtue of section 1546, supra, in time 

of peace it becomes the duty of the commanding officer of a 

military post upon application duly made to deliver the accused 

person in military service to the civil authorities or to aid in 

the apprehension of such offender. A wilfull neglect of this duty 

subjects the commanding officer to dismis,sal from service or 

other punishment as the court-martial may direct. 

A different situation exists however in time of war. 

It will be noted in section 1546, supra, that it is the duty of the 

commanding officer to deliver a person under his command to 

civil authorities upon application therefor except in time of war. 

Likewise, section 1564, supra, empowers the military courts to 

punish a person subject to military law for committing murder 

or rape, but pr,ohibits a court-martial to try a person for such 

offense in time of peace. The contention has often been made 

that the wording of these sections in the ,above manner gave the 

military courts exclusive jurisdiction in time of war of a person 

in military service; who commits an offense recognized and punishable by local laws. The courts have consistently held, however, 

the military courts in time of war do not have exclusive jurisdiction 

over offenses committed by persons in military 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; 

6 C.J.S. pn 425. 

This concurrent jurisdiction in time of war of the military and state courts over offenses against local laws committed 

by persons in military service is not in the 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 of a controversy will 

retain jurisdiction until final adjudication and will not be hindered 

by any action of a court of concurrent jurisdiction. This procedure 

is not followed in determining the jurisdiction between military and 

civil courts, as the Federal and State courts fully recognize that the 

military courts have a preference or a prior or paramount right to 

the jurisdiction over an offense committed by a person in military 

service. The courts are actually not on an equal basis since the 

Military Courts, if they desire, may assume jurisdiction even though 

contrary to the wishes of a state 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 the jurisdiction of an 
Hon. Elmer H. Parish, Page 4 (O-5579) 

accused by releasing the custody of the 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. In the recent case of Ex 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 to answer for trial or is 

undergoing a sentence for an offense under the Articles of WarI (b) when a state of war exists. The 

effect of these exceptions, then, is to say that, when 

a state of war exists, or when the subject is being 

held for trial, or is serving a sentence, for an offense punishable under the Articles of War, 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 to interfere with the military 

authorities in the exercise of control and jurisdiction 

over their military subjects. But, whether the delivery of a particular 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 in the instant case is shown by the fact that 

the appellant was by the military authorities delivered into the custody of the 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 to when a military court has waived this paramount right or 

acquiesced is subject to conjecture, for in the case of Ex Parte 

King, supra, even after the civil authorities indicted a soldier, 

the military court could intervene and obtain jurisdiction, although 
Hon. Elmer K. Parish, Page 5 (O-5579) 

in this case the so-called waiver was said not to come from the 

proper officers. 

We trust the foregoing 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