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October 11, 1968

HonorableW. C. Lindsey Opinion No. M-285 Criminal District Attorney Jefferson County Courthouse Re: Authority of Sheriff and Beaumont,Texas Constables to serve Criminal and Civil process in commercial plants or aboard Dear Mr. Lindsey: vessels.

You request the opinion of this office on the following questions:

, "1. Does a Constable or a Sheriffhave the authority

to go aboard a vesselwhich is tied up to a dock within his county to serve criminal or civil process, if the Captain of said vessel refuses to allowhim to come aboard?" you request an answer to this question as to bothmerchant and naval vessels. "2* Does a Constable or a Sheriffhave the authority to go into an enclosed commercialplant, such as a refinery, to serve criminal or civil process, if company personnel refuses to allow him past the enclosure? The enclosure referred to in sedond question is usually a Hurricanefence with a gatepatrolled by company guards throughwhich all trafficpasses." "3. If it is determined that Sheriffs and Constableshave authority to go intoplants or aboard vessels, 'then; what are the penalties for thosewho interfere and attempt to preventhim from serving theprocess.” The first question entails a consideration of state jurisdiction over both foreignand domesticmerchant and naval vessels.

State jurisdictionover domesticmerchant and naval vessels is limited,but not excludedby the United States Constitutionand federal lawspursuant thereto.

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As to domesticmerchant vessels,Article III, Section'2, Clause 1 **of** the Mited States Constitutionprovides "that the of admiralty and judicialpower shall extend

. . .toall cask maritime jurisdiction.

. ."

Congress has exercised this power over in **28** U.S.C.A. S1333: admiralty as found

"Thedistrict courts shallhave original jurisdiction,exclusive of the Courts of the State of: "(1)Any civil case of admiralty or maritime jurisdiction,saving to suitors in all cases all other remedies to which they are otherwise entitled." However, as stated in 2 Am.Jur.2d,Admiralty, S7,page **724:** "Theparamountpower of Congress, although it

excludes interferenceby state legislationwith its exercise, is merely a limitationon the power of the states. There is a broad recognition of the authority of the states to create rights and liabilitieswith respect to conductwithin their borders,where the state action does not run counter to federal laws or the essential features **of** exclusive federal jurisdiction. On the whole, it may be said thatwhere the particularmaritime subject is national in character, only Congress can legislate,but where the subject is local the statesmay legislate so long as their legislation is not inconsistentwith valid federal legislation and does not interferewith the proper harmony or uniformityof federal law in its internationalor interstateoperation. Thus, a statemay legislate ,on suchmatters as liens for claims arising from repairs of vesselswithin the ports of the state, port regulations and safety in local harbors, and torts committedby vesselswithin suchports. A

, statemay also levy a business licenseor sales tax on transactionsconducted on vessels operated on a riverwithin the boundaries of the state."

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In accord, 2 C.J.S.,Admiralty,,S6,p. 70; Toomer v. Southwest Casualty Company, 231 F.Supp. 542 (S.D.Galveston Div., 1964) d Fuentesv. Gulf Coast Dredging Co., 54 F.2d 69 (C.**C.A.** 5th EL., 1931).

Federal courts have affirmed the constitutionalityof state non-residentwatercraft statutes, and in Franklin v. Tomlinson 

# =EP- 158 F.Supp 850, (Ill,1957);'the f iur 8 iction over a Delaware Coroorationwhere service **of Drocess**  iederalcourt upheld had been on the Illinois Secretakyof State. See also coyie v. Pope & Talbot, Inc., 207 F.Supp. 685 (E.D,Pa. 1962).

State jurisdictionover domestic naval vessels is limited by Article 1, Section 8, of the United States Constitution,which empowers Congress to "provide for the common defense", "toprovide and maintain a Navy", "tomake rules for the government and regulation of the land and naval forces", and "tomake all lawswhich shall be necessary and proper for carrying into execution the foregoingpowess. a e' The above enumeratedDower and the doctrine of federal supremacy, as declared in M&lloch v. Maryland, 14' U.S. (4Wheat.) 316, 4 L-Ed. 579 (1819),prevent serviceof civil and criminal process aboard a United States naval vessel over the objection of its Captain, Congress has provided in the Uniform Code of Military Justice, 10 U.S.C.A. S814, the appropriatemethod by which a statemay assert its jurisdiction (seeAnnotation 135A.L.R. 11) over persons in military service:

"(a)Under such regulations as the Secretary concernedmay prescribe, a **member**of the armed forces accused of anoffense against civil .:; authoritymay **be** delivered upon request to the civil authority for trial." The basic law governing the question of jurisdictionalimmunity for foreignmerchant and naval vesselswas laid down by'chief Justice Marshall in The Schooner Exchangev. McFadden, 11 U.S. (7Cranch) **287 (1812%** **:**

"A clear distinction is to be drawn between the rights accorded to private individualsor private tradingvessels, and those accorded to public armed

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HonorableW. C. Lindsey, Page 4 **(M-285)**

shipswhich constitute a part of the military force of the nation. "Whenprivate individualsof one nation spread themselves through another as business or caprice may direct,mingling indiscriminatelywith the inhabitants of that other, or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction and the government to degradation, if such individualsor merchants did not owe temporary and local allegiance, and were not amenable to the jurisdictionof the country. Nor can the foreign sovereignhave any motive forwishing such exemption. His subjects thus passing into foreign countries, **are** not employed by him, nor are,they engaged in national pursuits. Consequently, there are powerfulmotives for not exempting persons of this description and no one motive for requiring it. The implied license, therefore, underwhich they enter, can never be construed to grant such exemption."
But where a vessel is used for commercialor private activity by a foreigngovernment, the courts defer to a determinationby the United States Department of State as to whether an immunity..will..., be recognized. Sovereign immunity is a political or diplomatic problem rather than a legal one. Immunity is now "recognizedwith respect to sovereign or public acts (jureimperii) **of** a statebut not with regard to the private acts (juregestionis)." Ocean Transport Co. v. Government of Republic of Ivory Coast, 269 F.Supp. 703, 705 (1967)
. In accordwith the basic principle of foreignmerchant vessels being amenable to State jurisdiction,a federal **court** in Tardiff v. Bank Line, 127 F.Supp. 945, (La.,19541, refused to set aside service on the Louisiana Secretary **of** State under the state..watercraft statute. The Court affirmed federal court jurisdictionover a British corporation in an action under state law for the death of a Louisiana resident from'

injuries sustainedon the defendant's steamship 'while at a dock in Louisiana.
As to naval vessels, Chief Justice Marshall stated a different rule in The Schooner Exchange case, supra:HonorableW. C. Lindsey, Page 5 **(M-285)**

"But in all respectsdifferent is the situation of a public armed ship. She constitutes a part of the military force of her nation; acts under the immediateand direct command of the sovereign; is employedby him in national objects. He has many powerfulmotives for preventing those objects from being defeatedby the interferenceof a foreign state. Such interferencecannot takeplace without affectinghis power and his dignity. The implied license, therefore,underwhich such vessel enters a friendlyport, may reasonablybe construed, and, it seems to the court, ought to be construed, as containing an exemption from the jurisdictionof the sovereign,within whose territory she claims the rights of hospitality."
Because the State of Texas lacks jurisdiction it is clear that a Constable or Sheriffdoes not have authority to go aboard a foreignnaval vessel to serve criminal or civil process. Nor may such processbe served upon a merchant vessel operatedby a foreign sovereign if the Department **of** State recognizes an immunity for it.
As to other merchant vessels,both domestic and foreign, there are no such inherentprohibitions unless the law 'ofthe State of Texas is such as to forbid service of process if the captain refuses permission to-board. Article 1407a,V.A.C.S. states as follows:.
"Art. 1407a. Entry on boat, vessel, ship or other

watercraftwithout consent of owner. "Section 1. It shallbe unlawful for any person, without the consent of the owner or other person in charge thereof, to enter upon the boat, vessel, ship. or otherwatercraft of another,whether or not such watercraft is documented or required to be numbered or registeredby or under the laws of the United States or of the State of Texas or of any other state, nation, country, or political entitywhatsoever,while such boat, vessel, ship, or otherwatercraft is on any of the 'coastalwaters' as defined in Section 3(a),

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Chapter 340,Acts of the 58th Legislature, 1963, or on any channel, turningbasin, or other body of water whatsoever in the State of Texas, and whether or not such boat, vessel, ship, or otherwatercraft be docked in passage, or otherwise. "Section 2. Any violation of Section 1 of thisAct shall constitute a misdemeanor,and for the first conviction of such a violation the punishment shall be by a fine of not more than $200,but for a second or subsequent conviction the punishment shall be by fine of not less than $50 or more than $SOO,,orby confinement in the county jail for not more than threemonths, or by both such fine and imprisonment. "Section 3. Any person found upon the boat, vessel, ship, or otherwatercraft of any kind or character of another under circumstanceswhich reasonably indicate that he entered upon it without the consent of the owner or other person in charge thereof shallbe subject to.arrestby any citypoliceman, constable, sherif,f, highway patrolman, ranger, game warden, or any other officer in the State of Texas, or by the deputy of any of them, without a warrant, and any suchpeace officer is hereby empowered tomake such an arrest.' Section 3 of Article 1407a indicates that it was not the intent of the legislatureto includepeace officerswithin the purview of the "anypersons" of Section 1. To hold otherwisewould be to ascribe to the legislaturethe intent to create a sanctuary for thosewho would frustrateorderly processes of law enforcement and to empower peace officers to arrest such persons but to deny them entry to exercise that power. . . The authority of a Constable or Sheriff to serve civil or criminalprocess aboard domestic or foreignmerchant vessels over the objection of the Captain is the same as in an enclosed commercialplant--the subject of your second question. With reference to service of civil process, it in recognized that an officerhas no right to breakinto or otherwise forcibly enter a dwelling house.

"In the eye of the law, it is better that the executionof the process shouldbe delayed, and that the officer shouldremain without, waiting,

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a favorableopportunity for the accomplishment of his purpose, than that he should enterwith force and violence, against the wishes and protests of the householder, thus tending to breaches of the peace and the destruction of the security and tranquility of the home by exposing it to attack fromwithout. The rule is not intended to secure immunity against service of process but rather to afford protection to the home and family." **42** Am.Jur., Process, 38, pB 34; Hillman v. Edwards! 66 S.W. 788 (Tex.Civ.App.1902, no writ).
A pertinent statement of the law is found in 52 Tex. Jur.2d, Sheriffs,Constables, etc., Set, 30, as follows:

"In the absence of statutes specially authorizing it, an officermay not break open an outer door norforcibly enter the dwellinghouse of a debtor for the purpose **of** a necessary levy. Such an entry in law, a trespass; the officer loses the ;Ztection of the writ, and he is no longer invested with the right to use reasonable force in executing it. This rule is applicable though the officerhad

.. ' previously entered through an unlocked door.and, return'ed

merely for the purpose,of completing the levy...

Rut if lawfulmeans are employed to
.. effect the seizure, the officer,,may use force sufficient to overcome the force used,by the defendant in attempting to resist the levy. In the event of such action the presumption is that any force used was necessary for theEperformanceof the' official duty, and the burden is on the plaintiff to show the contrary.'
A "home and family" enjoy a status of "tranquility" and "protection"which is not extended to a non-dwelling, such as an enclosed commercialplant and its employees or a merchant vessel and its crew. The treatise, Freeman on Execution, S256 - Of the Right to Break Inner and Outer Door to Make a Levy, p. 813, quotes Stearnesv. Vincent, 50Mich. 209; 45Am.Rep. 37, for, the proposition that forcemay be used on business premise8 to serve ,, civil process:

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Honorable W. C. Lindsey, Page 8 (M-288):

"Abuildingmay be occupiedpartly as a dwelling and partly for business purposes, as where the occupant conducts a store for the sale of merchandise in a room fitted up for thatpurpose, and resides with his family in other parts of the building. In such cases the whole building is not regarded as a dwelling; and even though the two parts are approached through a common door, this door may, be broken for the purpose of seizing goods in the store." The treatise continueswith a quote from Haggertyv. Wilber, 16 Johns. 288; 8Am. Dec. 321:

"'Theprivilegewhich the law allows to a man's habitation, and which precludes the sheriff from entering, unless the outer door be open, either~to arrest the party or to take his goods on execution, does not extend to a store or barn disconnected from the dwelling-house,and formingno part of the curtilage.' It has always been claimed that the refusal of the law to permit an officer to break into the debtor's dwelling to levy an exeoution II arises not from itswish to shield the property, but solely because of its desire to preserve the sanctity of the dwelling. If this claim is well founded,we should suppose that the dwelling would be equally preserved from intrusionwhen the writ is against a stranger,as well as when against the owner. But this supposition is not supported by the authorities. An officermay enter the house of A **for** the purpose of~levying.,upon B's goodswhich are therein. A forcible entrymust not be made until a demand to open the doors has been met with.. a refusal to comply. And the right to enter depends on the,fact of B's goods being in the house. If they are not there'the officer cannot justifyhis " entry. He is a trespasser. When the officer has ' once lawfully entered the outer door, the sanctity of the dwelling, as regards thatwrit underwhich the entry was made, is dettroyed. The door cannot now be closed upon him. The Texas Code **of** Criminal Procedura **expressly** provides **for** the **use of**  force or violence in making arrests and in executing searchwarrants:

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HonorableW. C. Lindsey, Page 9 (M-285)

Art..15.24 - "Inmaking an arrest, all reasonable means are permitted to be used to effectit. No greater force,however, shall be resorted to than is necessary to secure the arrest and detention of the accused."
Art. 15.25 -"'In case of felony, the officermay break down the door of any house for the purpose of making an arrest, if he be refused admittance after giving notice of his authority and'purpose."
Art. 18.17 - "In the execution of a search warrant, the officermay call to his aid any number of citizens in his county,who shall be bound to aid in'the execution of the same. If he is resisted in the execution of the warrant, he may use such force as is necessary to overcome the resistance,but no greater."
Art. 18.18 - "In the execution of a searchwarrant, the officermay break down a door or a window of any house which he is ordered to search, if he cannot effect an entranceby other less violentmeans; but when the warrant issues only for the purpose of din-, coveringproperty stolen or otherwise obtained in violation of thepenal law,without designating any particularplace where it is supposed to be concealed, no such authority is given to the officer executing the same."
You are therefore advised that a Constable or Sheriff, after properly identifyinghimself and stating the purpose of his visit, has authority to go aboard a domestic or foreignmerchant vessel over the objection of its Captain or to enter an enclosed commercial plant for the purpose of serving criminal or civil process.

Your third question asks about the penalties applicable to those who interfere and attempt to prevent a Constable or Sheriff from servingprocess. Article 388,V.A.P.C., provides a penalty for opposing the ,, arrest of another~for felony.

"Whoever shallwilfully oppose or resist an officer in executing, or attempting to execute any lawfulwarrant for the arrest of anotherper-

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HonorableW. C. Lindsey, Page 10 (M-285)

son in a felony case shall be confined in the penitentiarynot less than two nor more than fiveyears. If ,arms be used in such resistance, he shallbe confined in the penitentiarynot less than two nor more than seven years." Article 339,V.A.P.C., states the penalty for opposing arrest of another for a misdemeanor.

"If any person shallwilfully oppose or resist an officer in executing or attempting to execute any lawfulwarrant **for** the arrest of another person in a misdemeanor case, or in arresting or attempting to arrest any person without a warrant, where the law authorizes or requires the arrest to be made without a warrant, he shall be fined not less than twenty-fivenor more than five hundred dollars, and if arms be used, be fined not lessthan fiftynor more than one thousand dollars." Article 342,V.A.P.C., conditions imposition **of** the above two penalties on the process being executed in a legalmanner.

"To render a person guilty **of** any offense included within the meaning of articles 338 and 339 the warrant or processmust be executed or its execution attempted in a legalmanner." Article 336,V.A.P.C., sets forth thefine **for** preventing execution of civil processby means not, amounting to actual resistance.

"Whoever shall prevent or defeat the execution of any process in a civil cause, by any means **not** amounting to actual resistance,but which are calculated to prevent the execution of such process, shall be fined not exceeding fivehundred dollars: evading the execution **of** suchprocess is not an offense under this article." Those who would hinder a law enforcement officermight also become subject toArticle 77 of the Penal Code. It states in part that "an accessory is one who, knowing that an offense has been committed, conceals the offender,or gives him any other aid in. order that he may evade an arrest or trial or the execution of his sentence." UnderArticle 79 of the penal Code, Dacceesoriesshall be punishedby the inflictionof the lowestpenalty to which the principalwould be liable."

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SUMMARY
A Constable or Sheriffhas no authority to serve criminal or civil process on board any foreignnaval vessel or any foreignmerchant vesselwhere the United States Departmentof State recognizes a sovereign immunity, However, absence such recognition, a Constable or Sheriffdoes have authority to enter a domestic or foreignmerchant vesselwithout the consent of the Captain to serve civil or criminal process; those denying such consent subject themselves to certain penalties and fines. A Con&table or Sheriffhas no authority to serve process on board a United States naval vessel; the persons upon whom such process is to be served;maybe delivered to local authorities in acdord with federal law,
A Constable or Sheriff does have authority to serve criminal or civil process in an enclosed commercial plant; any person denying him permission to enter subjectshimself to certainpenalties and fines. trulyyours,

A Prepared by Charles T. Rose AssistantAttorney General
APPROVED:
OPINION COMMITTEE Hawthorne Phillips, Chairman Xerns Taylor, Co-Chairman Robert Lattimore FisherTyler Ralph Rash Malcolm Quick
EXECUTIVEASSISTANT A. J. Carubbi, Jr.