R-158 

### OFFICE OF 

## THE ATTORNEY 

# GENERAL

AUSTIIV,TEXAS

PRICE **DANIEL .4+tcmNFz** 

**GEXlmAL June**  **2, 1947** 

HonorableHomer Carrlson,Jr., Dlreotor, Texas Departmentof Pub110 Safety, CampMabry , Auatln 9, Taxes. OpinionNo. **V-229**
Re: Authorityof State Highway Patrolman to make arrests aboard ships in Texas ports under oertaln oondltiona.

Dear Sir:
Your request for an opinion la as follows:

“Pleaseadvise the authority or a Taxes Highway Patrolman to make an arrest under the following conditions:

“A person oommltsa misdemeanorwithin sight of a Patrolman. Before the person can be apprehendedhe goes aboard a ship tlylng the flag of this oountry,which ship 1s tied up to a dook In the Houston ship ohannel. Can the Patrolmango aboard the ship and make the arrest? Would there be any difference if the offe’nsa

committedwas a felony? Would it be neoessary ror the Patrolman to secure a warrant OS arrest before going aboard the ship, even though he was in pursuit of the person committingthe violationwhen that person want aboard the ship? should the ship be tlying the flag of a toreign country,would this make any diff%rencain the arrest prooadure?

**nAsauma that**  a Texas Highway Patrolman~Bonorable Homer Garrison, Jr. - Page 2

has a misdemeanor

warrant for a person who is aboard a ship, can the Patrolman serve the warrant on the ship? Can he serve a felony warrant on the ship, either flying the flag of this country or the flag of a foreign country? Would it make any difference if the ship was anchored in the channel and not tied up at the dock?" Artiole 212 of Vernon's Code of CrimjnalProcedure reads as follows:

"A peace officer or any other person, may, without warrant, arrest an offender when the offense Is committedin his prea-

. ence or within his view, if the offense is one classedas a felony, or as an 'offense against the public peaoe.lw Article 215 of Vernon's Code of CriminalProcedure provides:

"Where It is shown by satisfactory proof to a peace officer,upon the representationof a credibleperson, that a felony has been committed,and that the offender is about to escape, so that there Is no time to procure a warrant, suoh peace officer may, withoutwarrant, pursue.andarrest the aocused.n Article 216 of Vernon's Code of CriminalProoedura provides:

"In each case enumeratedwhere arrests may be lawfullyuade without warrant, the officer or person &king the arrest is justified in adopting all the measureswhich.hemight adopt in cases of arrest under warrant." Article 

### 37 of Vernon's Code of CriminalProcedure reads:
"It is the duty of every peaoa officer to preserve the peace within his jurisdiction. To effect this purpose., he shall use all lSWful means, He shall, inevery case where he is authorizedby the provisionsof this Code, Interfere withoutwarrant to prevent or suppress crime. He shall execute all lawfulHonorableHomer Garrison,Jr. - Page 3

process issued to him by any magistrate or oourt. He shall give notice to some magistrate of all offenses committed within his juriadlotion,.whare ha has good reason to believe therehas been a violationof the penal law. He shall arrest offenderswithout warrant in every case where he is authorizedby law, in order that they may be taken before the propermagistrateor court and be tried."

In addition to oertain other powers granted to the Texas Highway Patrol by Article 4413 (12),V. C. S., the officerswere further clothedwith all of the powers and authority given to members of the Taxes Ranger Force.

Section (4) of Article 4413 (ll),V. C. S., in speakingof the Ranger force provides:

"The officers shall be clothedwith all the powers of peace officers,and shall aid in the executionof the laws." Assuming the ships In question to be merchant ships and not warships of our Navy or of a foreignpower, we will answer your inquirieson that premise.

Wheaton'sElements of International Law, Sixth Edition, at page 151, reads as follows:

"Accordingto the judgmentof the Supreme Court of the United States,where, without treaty, the ports of a nation are open to the public and private ships of a friendly power,whose subjectshave also liberty,without special license, to enter the country for business or amusement,a clear distinction was to be drawn between the rights accorded to prlvate individuals,or private tradingvessels? and those accorded to public armed ships which constitutea part of the military force of the nation.

"When private individualsof one nation spread themselvesthroughanother as business or capricemay direct,mingling lndlscriminately with the inhabitantsof that other; or when merchantvessels enter for the purposes Of trade, it would be obviously inconvenient and dangerousHonorableHomer Garrison,Jr. - Page **4**

to society,and would subject the laws to continual infraction,and the governmentto degradation, if such individuals did not owe temporaryand local allegiance, and were not amenable to the jurisdiction of the country. Nor can the foreign sovereignhave any motive for wishing such exemption. His **subjects,** then, passing into foreign countries, **are** not employedby him, nor are they engaged in national pursuits. Consequently there are powerful motives for not exemptingpersons of this descriptionfrom the jurisdiction of the country in which they are found, and no motive for requiring it. The implied license, therefore, under which they enter, can never be construed to grant such exemption.
"

. . . "Upon these principles,by the unanimous oonsent of nations, a foreigneris amenable to the laws of the place; but certainly,in practice, nations have not yet asserted their jurlsdiction over the public armed ships of a foreign sovereign, enteringa port open for their r0c0pt10n.*
It therefore follows that merchant ships of a friendlypower enteringports of this State are in the same categoryas merchant ships of the United States in such ports, and If peace officersare allowed to go aboard United States ships to make arrests, they would be so authorized in the case of merchant ships of a foreignnation in the absence of treaties to the contrary.

The case of Xx Part6 Ponzi, 290 S. W. **170,** involved the arrest of a person aboard an Italianmerchant ship, at the port of New Orleans by a deputy sheriff Of Texas who returned to Texas with the prisoner. Although the Texas deputy sheriff did not actually go aboard the ship to make the arrest, but by an arrangement with the second officer had the prisoner sent ashore where the arrest was made, the Texas Court of CriminalAppeals held that a private ship, enteringa foreign jurisdiction,becomes subject to the laws and control of the countryvisited, in the absence of treaty stipulations to the ContlgrY, and any crime committedthere may be punishedby 10001 laws.

Under the authority of the above cited **StakUteS**HonorableHomer Garrison,Jr. - Page 5

and the case of Bx Part6 Ponzi, It is the opinion of this departmentthat if a person commitsa misdemeanor, which Is an offenseagainst the public peace, or a felony,within the sight of a Highway Patrolman,and goes aboard a merchant ship of the United States or any foreignpower, the patrolmanhas the authorityto go aboard the ship to make the arrest without a warrant, if said patrolmanwas in "freshpursuit" of the offender. It is also the opinion of this departmentthat a Highway Patrolmanmay serve either a misdemeanor or felonywarrant on a United States merchant ship or a merchant ship of a foreignpower that is In a Texas port. The fact that the ship is anchored In the channel or "in the stream" Is of no consequence.

It should be noted, however, that this authoritydoes not extend to men of war or armed warships of the United States or any foreignnation. The same rule of enteringupon a governmentreservationto make an arrest would apply in such cases.
SUMMARY
State Highway Patrolmanare npeaoe ofricers,Wand if a person commitsa misdemeanor which is an offenseagainst the public peace, or felony,within their sight, they have the authority,while still in "freshpursuitn to go aboard a merchant ship of the United States or of any foreignpower, in a Texas port, to arrest the offenderwithout a warrant. (Art. $45 (F's 7. G. S., Arts. 37, 212, 215, 216,

. . . . Such officersare authorized to serve eithe~r a misdemeanoror felonywarrant on a United Statesmerchantvessel or a merohant ship of a foreignnation that is in a Texas port. The fact that the ship may be in the channel is of no consequence.
Yours very truly RAH/JMc ATMRNBY GENERAL OF TEXAS

L Robert A. Ball

Assistant