July 16, 1987 

ax XATTOX 

A-N&Y O&XERAI. 

- 

Honorable Gary E. Kersey 

Kerr County Attorney 

317 Earl Garrett 

Kerrville, Texas 78028 

Opinion No. JM-751 

lt.2: Constitutionality of certain portions of article 14.03 of the Code of 

Criminal Procedure, regarding warrantless arrests in certain misdemeanor 

cases involving family violence 

Dear Mr. Kersey: 

You inquire about the constitutionality under the Fourteenth 

Amendment of the United States Constitution of portions of article 

14.03 of the Texas Code of Criminal Procedure. Article 14.03 provides 

as follows: 

.(a) Any peace officer may arrest, without 

warrant : 

. . . . 

(2) persons who the peace officer has probable 

cause to believe have committed an a~ssault resulting in bodily injury to another person and the 

peace officer has probable cause to believe that 

there is danger of further bodily injury to that 

person; or 

(3) persons who the peace officer has probable 

cause to believe have committed the offense 

defined by Section 25.08, Penal Code (violation 

of Court Order), whether or not the offense is 

committed in the presence of the peace officer. 

(b) If necessary to verify an allegation of a 

violation of a protective order, a peace officer 

shall follow the procedures established under 

Section 71.18, Family Code, without leaving 

the scene of the investigation if there is a 

possibility of the further commission of family 

violence. (Emphasis added). 

Code Grim. Proc. art. 14.03. Article 14.03 subsections (a)(2) and 

(a)(3) refer to offenses which the Penal Code defines as misdemeanors. 

See Penal Code 5522.01; 25.08. - 

p. 3499 
Honorable Gary E. Kersey - Page 2 (JM-751) 

i 

Section 22.01 of the Penal Code, which defines the offense of 

assault, provides that a person commits an offense if he "intentionally, knowingly, or recklessly causes bodily injury to another, 

including the person's spouse." Penal Code 522.01(a)(l). Section 

25.08(a) of the Penai Code defines as an offense certain knowing or 

intentional conduct by a person. which violat? a protective order 

issued to restrain him from family violence. The actions which 

constitute offenses under Penal Code section 25.08 if performed in 

violation of such a court order include conssitting family violence, 

communicating directly with a member of the family or household in a 

threatening or harassing manner, or going to or near the residence 

or place of employment of a member of the family or household 

specifically described in the protective order. Penal Code 525.08(a). 

You question the constitutionality of subsections (a)(2) and (a)(3), 

of article 14.03 of the Code of Criminal Procedure, which allow a 

peace officer to make a warrantless arrest of a person who has 

committed one of the enumerated offenses, even though the offense was 

not committed in the presence of the peace officer. Compare Code 

Grim. Proc. art. 14.01 with art. 14.03. You state in your letter that 

article 14.03(a)(3) of the Code of Criminal Procedure allows a 

misdemeanor arrest without warrant for an offense committed under 

section 25.08(a) of the Penal Code even when there is no danger to the 

party protected by the court order. You suggest that article 14.03 of 

the Code of Criminal Procedure would allow a warrantless arrest based 

upon the protected party's report that the order was being violated, 

since this report would probably be legally sufficient to give the 

officer probable cause. You do not question the constitutionality of 

the underlying provision. subsection 25.08(a) of the Penal Code. Your 

concerns are directed at the arrest procedure which article 14.03 of 

the Code of Criminal Procedure authorizes when the officer has 

probable cause to believe that a person has violated section 25.08 of 

the Penal Code. 

You argue that subsections (a)(Z) and (a)(3) of article 14.03 are 

invalid under the Fourth Amendment of the United States Constitution, 

which is applicable to the states through the Fourteenth Amendment. 

The Fourth Amendment provides as follows: 

The right of the people to be secure in their 

persons, houses, papers, and effects, against 

unreasonable searches and seizures, shall not be 

violated, and no Warrants shall issue, but upon 

1. Section 25.08 of the Penal Code has been amended by Senate 

Bill Nos. 887 and 1111 of the 70th Legislature, effective September 1, 

1987. These amendments do not render your questions moot nor do they 

change our answer. 

? 

p. 3500 
Honorable Gary E. Kersey - Page 3 (JM-751) 

P 

probable cause, supported by Oath or affirmation, 

and particularly describing the place to be 

searched, and the persons or things to be seized. 

U.S. Const. amend. 4. Article I, section 9, of the Texas Constitution 

provides a similar protection against unreasonable searches and 

seizures. 

Subsections (a)(2) and (a)(3) of article 14.03 of the Code of 

Criminal Procedure depart from the common law rule that a peace 

officer has no power to arrest for a misdemeanor without a warrant 

unless it has been committed in his presence or involves a breach of 

the peace. See, e.g., Crane v. State of Texas, 759 F.2d 412 (5th Cir. 

1985). Neither subsection (a)(2) or (a)(3) of article 14.03 rest upon 

any widely recognized exceptions to this common law rule. See 2 - 

LaFave, Search and Seizure 55.1, at 222-24 (1978). 

The common law rule on searches and seizures has provided a 

starting point for interpreting the Fourth Amendment, but the meaning 

of this constitutional provision is not controlled by the common law 

rule. See, e.g., Welsh v. Wisconsin, 466 U.S. 740 (1984); Payton v. 

.- 

New York, 445 U.S. 573, 579-81 (1980); United States v. Watson, 423 

U.S. 411, 418 (1976); Carroll v. United States, 267 U.S. 132, I57 

759 F.2d 412 (5th Cir. 1985); Street 

E, 492 F. 2d 368 (4th Cir. 1974). In Welsh v. Wisconsin, 

(1925); srane v. State of Texas, 

v. Surdyl 

m. the Supreme Court held that the Fourth Amendment prohibited the 

warrantless. nighttime entry into an individual's home to arrest him 

for a noncriminal traffic offense, absent exigent circumstances. 

A dissent by Justice White pointed out that the common law 

requirement "that a misdemeanor must have occurred in the officer's 

presence to justify a warrantless arrest is not grounded in the Fourth 

Amendment." 466 U.S. at 747. It further noted that the Supreme Court 

has never held "that a warrant is constitutionally required to arrest 

for nonfelony offenses occurring out of the officer's presence." Id. - 

In United States v. Watson, 423 U.S. 411 (1976) the Supreme Court 

held that the Fourth Amendment permits a law enforcement officer to 

make a warrantless arrest for a felony offense in a public place, even 

though he had adequate opportunity to get a warrant. The court relied 

in part on the fact that the ancient comnon law rule was codified in 

the statute authorizing such arrests. 423 U.S. at 418. It also noted 

that the American Law Institute (ALI) had incorporated the common law 

standard for felony arrests in its model statute governing warrantless 

arrests. 423 U.S. at 422, n. 11. The model statute reads as follows: 

(1) Authority to Arrest Without a Warrant. A 

law enforcement officer may arrest a person 

without a warrant if the officer has reasonable 

cause to believe that such person has committed 

p. 3501 
Honorable Gary E. Kersey - Page 4 (JM-751) 

(a) a felony; 

(b) a misdemeanor, and the officer has 

reasonable cause to believe that such person 

(1) will not be apprehended unless 

immediately arrested; or 

(ii) may cause injury to himself or 

others or damage to property unless 

immediately arrested; or 

Cc) a misdemeanor or petty misdemeanor in 

the officer's presence. (Emphasis in original). 

fi1, Model Code of Pre-arraignment Procedure P120.1 (1975). The 

Supreme Court .did not comment on subsection (b) of the model code 

nrovision. . which exnands the common law authority for warrantless 

arrests in misdemeanor cases. But see Dawson, State-Created 

Exclusionary Rules in Search and Seizure: A Study of the Texas 

Experience, 59 Tex. L. Rev. 191, 221-22 (1981) (U.S. v. Watson makes 

clear that the sole requirement of the Fourth Amendment respecting 

arrests in public places is that the officer act upon probable cause). 

492 F.2d 368 (4th Cir. 1974). a federal 

7 

In Street v. Surdyka, 

court of appeals presented reasons why the Fourth Amendment does not 

incorporate common law restrictions on warrantless arrests for 

misdemeanors: 

[T]he Supreme Court has never given constitutional 

force to this element of the common law rule. In 

Bad Elk v. United States, 177 U.S. 529, 20 S.Ct. 

729, 44 L.Ed. 874 (1900), the Court applied the 

common law rule but hinted that its restrictions 

could be relaxed by statute. Subsequent cases 

have focused entirelv on the reauirement of 

probable cause. See Beck v. Ohio, 379 U.S. 89, 85 

S.Ct. 223, 13 L.Ed.2d 142 (1964); Benry v. United 

States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 

(1959). We do not think the fourth amendment 

should now be interpreted to prohibit warrantless 

arrests for misdemeanors committed outside an 

officer's presence. The difference between 

feionirs and misdemeanors is no longer as 

significant as it was at common law. . . . 

Maryland courts have criticized the continued use 

of the common law rule as impractical and 

illogical, and have invited the state legislature 

to adopt new rules. Robinson v. State, 4 Md.App. 

515, 243 A.2d 870 (1968). . . . We are most. 

reluctant to adopt a constitutional interpretation 

p. 3502 
Honorable Gary E. Kersey - Page 5 (JM-751) 

that would impede reform in this area. The fourth 

amendment protects individuals from unfounded 

arrests by requiring reasonable grounds to believe 

a crime has been committed. (Footnotes omitted). 

492 F.2d at 371-72. 

A number of states have enacted statutes authorizing peace 

officers to make warrantless arrests for misdemeanors committed 

outside their presence. See, e.g., D.C. Code Ann. 123-581; Fla. Stat. 

§901.15(6) (warrantless arrest if there is probable cause to believe 

the person has committed an act of domestic violence in violation of 

injunction); Kan. Code Grim. Proc. 022-2401; Md. Code Ann. §27.594(B); 

Ohio Code Ann. 82935.03; Wash. Rev. Code Ann. 10.31.100. The courts 

of some states have dealt with the validity of a warrantless arrest of 

an individual by a peace officer for a misdemeanor committed outside 

of his presence. See, e.g., State v. Presley, 458 So.2d 847 (Fla. 

Dist. Ct. Auu. 1984) (test for warrantless arrest in misdemeanor is 

whether the-officer-has a substantial reason to believe arrestee is 

guilty of a crime); LeBlanc v. State, 382 So.2d 299 (Fla. 1980) 

(provision for warrantless arrest for battery connnitted upon spouse 

does not violate equal protection clause); Wilson v. Hunk, 367 N.E.2d 

478 (Ill. App. Ct. 1977) (warrantless arrest for 'misdemeanor not 

committed in officer's presence is not illegal arrest); Lurie v. 

District Attorney of Kings County, 288 N.Y.S.2d 256 (Sup. Ct. Special 

Term 1968) (arrest for a misdemeanor not committed in officer's 

presence violates no state or federal constitutional standard); Cify 

of Columbus v. Berrell, 247 N.E.2d 770 (Ohio Ct. App. 1969) (statute 

authorizing peace officer to arrest without a warrant any person he 

has reasonable cause to believe is guilty of assault and battery, a 

misdemeanor, does not violate Fourth Amendment); State v. Bryant, 678 

S.W.2d 480 (Term. Grim. App. 1984), cert. denied, 469 U.S. 1192,(1985) 

(the rule that a police officer has no authority to make misdemeanor 

arrest for offense committed outside his presence is a common law rule 

and not constitutionally required). In Kelley v. State, 676 S.W.2d 

646 (Tex. App. - Houston [lst Dist.] 1984, pet. ref'd) the court 

determined that a search was invalid because it was made pursuant to 

an invalid arrest for a felony. The court stated that the Fourth 

Amendment of the United States Constitution requires the police to 

have probable cause to arrest a suspect, and since there was probable 

cause the federal constitution was not violated in this case. 676 

S.W.2d at 648. However, since Texas has imposed greater restraints on 

police conduct than the federal constitution requires, the arrest was 

invalid because it violated Texas law. The court reviewed statutes 

authorizing warrantless arrest, including the provision now codified 

as article 14.03(a)(2) of the Code of Criminal Procedure, but did, not 

comment on its validity. 676 S.W.2d at 649. 

Finally, in Gonzales v. City of Peoria, 722 F.2d 468 (9th Cir. 

1983). the court determined that Arizona law enforcement officers 

p. 3503 
Honorable Gary E. Kersey - Page 6 (JM-751) 

could arrest for violations of the Immigration and Nationality Act 

under the following state provision: 

A peace officer may, without a warrant, arrest a 

person: 

. . . . 

4. When he has probable cause to believe a 

misdemeanor has been committed and probable cause 

to believe the person to be arrested has committed 

the offense. . . . 

Aria. Rev. Stat. Ann. 513-3883 (1978). 

Thus, there is federal and state case law, as well as legal 

scholarship, which supports the constitutionality of the arrest 

provisions you inquire about. We should moreover presume that this 

legislation is constitutional. See United States v. Watson, supra. 

We therefore do not believe subsections (a)(2) or (a)(3) of article 

14.03 are facially unconstitutional. 

Article 14.03 of the Code of Criminal Procedure does not 

expressly authorize an unconsented entry into a suspect's home to 

arrest him. A warrantless, unconsented entry into a suspect's home to 

make a routine felony arrest violates the Fourth Amendment. Payton v. 

New York, 445 U.S. 573 (1980). The Supreme Court has held that a 

warrantless nighttime entry into an individual's home to arrest him 

for a civil, nonjailable traffic offense was, in the absence of 

exigent circumstances, prohibited by the Fourth Amendment. Welsh v. 

Wisconsin, 466 U.S. 740 (1984). Although the petitioner's stepdaughter opened the door for the police, the trial court did not 

decide whether there was consent to enter and the Supreme Court 

assumed there was no valid consent to enter the uetitioner's home. 

466 U.S. at 743, n.1. In Welsh v. Wisconsin, the Supreme Court stated 

as follows: 

Before agents of the government may invade the 

sanctity of the home, the burden is on the 

government to demonstrate exigent circumstances 

that overcome the presumption of unreasonableness 

that attaches to all warrantless home entries. 

466 U.S. at 750. The court enumerated the few emergency conditions 

which it has recognized as justifying warrantless searches or arrests: 

United States v. Santana. 427 U.S. 38, 42-43 (1976) (hot pursuit of a 

fleeing felon); Schmerber v. California, 384 U.S. 757, 770-71 (1966) 

(destruction of evidence); Michigan v. Tyler, 436 U.S. 499, 509 (19.78) 

(ongoing fire). Welsh v. Wisconsin, 466 U.S. at 750. 

p. 3504 
Honorable Gary E. Kersey - Page 7 (JM-751) 

Article 14.03 of the Code of Criminal Procedure cannot be 

constitutionally applied to effect a warrantless entry to an 

individual's home to arrest him, unless consent is given to the entry 

by a person with authority to consent , or exigent circumstances exist. 

Whether consent is given or exigent circumstances exist must be 

decided on the facts of each case. 

SUMMARY 

Subsections (a)(2) and (a)(3) of article 

14.03 of the Texas Code of Criminal Procedure, 

which authorize warrantless arrests of persons who 

the peace officer has probable cause to believe 

have committed certain misdemeanors whether or not 

in the peace officers presence, are not facially 

unconstitutional. These provisions cannot be used 

to effect a warrantless entry to an individual's 

home to arrest him, unless the facts show that 

consent to the entry has been given or that 

exigent circumstances exist which justify the 

entry. 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Susan L. Garrison 

Assistant Attorney General 

p. 3505