I . 

October 11, 1968 

Honorable W. 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 Sheriff have the authority 

to go aboard a vessel which is tied up to a dock 

within his county to serve criminal or civil process, if the Captain of said vessel refuses to 

allow him to come aboard?" you request an answer 

to this question as to both merchant and naval 

vessels. 

"2 * Does a Constable or a Sheriff have the authority to 

go into an enclosed commercial plant, 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 Hurricane fence with a gate patrolled by 

company guards through which all traffic passes." 

"3. If it is determined that Sheriffs and Constables have 

authority to go into plants or aboard vessels, 'then; 

what are the penalties for those who interfere and 

attempt to prevent him from serving the process.” 

The first question entails a consideration of state jurisdiction 

over both foreign and domestic merchant and naval vessels. 

State jurisdiction over domestic merchant and naval vessels 

is limited, but not excluded by the United States Constitution and 

federal laws pursuant thereto. 

- 1384 - 
Honorable W. C. Lindsey, Page 2 (M-285) 

As to domestic merchant vessels, Article III, Section'2, 

Clause 1 of the Mited States Constitution provides "that the 

judicial power shall extend . . .to all cask of admiralty and 

maritime jurisdiction. . ." 

Congress has exercised this power over 

in 28 U.S.C.A. S1333: 

admiralty as found 

"The district courts shall have 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: 

"The paramount power of Congress, although it 

excludes interference by state legislation with 

its exercise, is merely a limitation on the power 

of the states. There is a broad recognition of 

the authority of the states to create rights and 

liabilities with respect to conduct within 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 that where the particular maritime 

subject is national in character, only Congress 

can legislate, but where the subject is local the 

states may legislate so long as their legislation 

is not inconsistent with valid federal legislation 

and does not interfere with the proper harmony or 

uniformity of federal law in its international or 

interstate operation. Thus, a state may legislate 

,on such matters as liens for claims arising from 

repairs of vessels within the ports of the state, 

port regulations and safety in local harbors, and 

torts committed by vessels within such ports. A 

, state may also levy a business license or sales 

tax on transactions conducted on vessels operated 

on a river within the boundaries of the state." 

. . 
Honorable W. C. Lindsey, Page 3 (M-285) 

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 Fuentes v. Gulf Coast Dredging Co., 54 F.2d 69 (C. C.A. 5th 

EL., 1931). 

Federal courts have affirmed the constitutionality of 

state non-resident watercraft statutes, and in Franklin v. Tomlinson 

=EP- 158 F.Supp 850, (Ill, 1957);'the f iur 8 iction over a Delaware Corooration where service of Drocess 

iederal court upheld 

had been on the Illinois Secretaky of State. See also coyie v. Pope 

& Talbot, Inc., 207 F.Supp. 685 (E.D, Pa. 1962). 

State jurisdiction over domestic naval vessels is limited 

by Article 1, Section 8, of the United States Constitution, which 

empowers Congress to "provide for the common defense", "to provide 

and maintain a Navy", "to make rules for the government and regulation of the land and naval forces", and "to make all laws which 

shall be necessary and proper for carrying into execution the 

foregoing powess. a e' 

The above enumerated Dower and the doctrine of federal 

supremacy, as declared in M&lloch v. Maryland, 14' U.S. (4 Wheat.) 

316, 4 L-Ed. 579 (1819), prevent service of 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 appropriate method by which a state may assert 

its jurisdiction (see Annotation 135 A.L.R. 11) over persons in 

military service: 

"(a) Under such regulations as the Secretary 

concerned may prescribe, a member of the armed 

forces accused of anoffense against civil 

.:; authority may be delivered upon request to the 

civil authority for trial." 

The basic law governing the question of jurisdictional immunity 

for foreign merchant and naval vessels was laid down by'chief Justice 

Marshall in The Schooner Exchange v. McFadden, 11 U.S. (7 Cranch) 

287 (1812% : 

"A clear distinction is to be drawn between the 

rights accorded to private individuals or private 

trading vessels, and those accorded to public armed 

-1386- 
. 

Honorable W. C. Lindsey, Page 4 (M-285) 

ships which constitute a part of the military force 

of the nation. 

"When private individuals of one nation spread 

themselves through another as business or caprice 

may direct, mingling indiscriminately with 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 individuals or merchants did 

not owe temporary and local allegiance, and were not 

amenable to the jurisdiction of the country. Nor can 

the foreign sovereign have any motive for wishing 

such exemption. His subjects thus passing into 

foreign countries, are not employed by him, nor 

are, they engaged in national pursuits. Consequently, 

there are powerful motives for not exempting 

persons of this description and no one motive 

for requiring it. The implied license, therefore, 

under which they enter, can never be construed to 

grant such exemption." 

But where a vessel is used for commercial or private activity 

by a foreign government, the courts defer to a determination by 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 "recognized with 

respect to sovereign or public acts (jure imperii) of a state but 

not with regard to the private acts (jure gestionis)." Ocean Transport 

Co. v. Government of Republic of Ivory Coast, 269 F.Supp. 703, 705 

(1967) . 

In accord with the basic principle of foreign merchant 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 jurisdiction over a British corporation in an action under state law for the death of a Louisiana 

resident from' injuries sustained on 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: 
Honorable W. C. Lindsey, Page 5 (M-285) 

"But in all respects different is the situation 

of a public armed ship. She constitutes a part of 

the military force of her nation; acts under the 

immediate and direct command of the sovereign; is 

employed by him in national objects. He has many 

powerful motives for preventing those objects from 

being defeated by the interference of a foreign 

state. Such interference cannot take place without 

affecting his power and his dignity. The implied 

license, therefore, under which such vessel enters 

a friendly port, may reasonably be construed, and, 

it seems to the court, ought to be construed, as 

containing an exemption from the jurisdiction of 

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 Sheriff does not have authority to go aboard 

a foreign naval vessel to serve criminal or civil process. Nor 

may such process be served upon a merchant vessel operated by 

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 inherent prohibitions unless the law 'of the 

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 

watercraft without consent of owner. 

"Section 1. It shall be unlawful for any person, 

without the consent of the owner or other person in 

charge thereof, to enter upon the boat, vessel, ship. 

or other watercraft of another, whether or not such 

watercraft is documented or required to be numbered 

or registered by or under the laws of the United States 

or of the State of Texas or of any other state, nation, 

country, or political entity whatsoever, while such 

boat, vessel, ship, or other watercraft is on any of 

the 'coastal waters' as defined in Section 3(a), 

? 
Honorable W. C. Lindsey, Page 6 (M-285) 

Chapter 340, Acts of the 58th Legislature, 1963, or 

on any channel, turning basin, or other body of water 

whatsoever in the State of Texas, and whether or not 

such boat, vessel, ship, or other watercraft be docked 

in passage, or otherwise. 

"Section 2. Any violation of Section 1 of this Act 

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,,or by confinement 

in the county jail for not more than three months, or 

by both such fine and imprisonment. 

"Section 3. Any person found upon the boat, vessel, 

ship, or other watercraft of any kind or character of 

another under circumstances which reasonably indicate 

that he entered upon it without the consent of the 

owner or other person in charge thereof shall be subject 

to.arrest by any city policeman, 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 such peace officer 

is hereby empowered to make such an arrest.' 

Section 3 of Article 1407a indicates that it was not the 

intent of the legislature to include peace officers within the 

purview of the "any persons" of Section 1. To hold otherwise would 

be to ascribe to the legislature the intent to create a sanctuary 

for those who would frustrate orderly 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 

criminal process aboard domestic or foreign merchant vessels 

over the objection of the Captain is the same as in an enclosed 

commercial plant--the subject of your second question. 

With reference to service of civil process, it in recognized 

that an officer has no right to breakinto or otherwise forcibly 

enter a dwelling house. 

"In the eye of the law, it is better that the 

execution of the process should be delayed, and 

that the officer should remain without, waiting, 

-1389- 
Honorable W. C. Lindsey, Page ~7 (M-285) 

a favorable opportunity for the accomplishment 

of his purpose, than that he should enter with 

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 from without. 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 officer may not break open an outer door norforcibly enter the dwelling house 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 officer had .. ' 

previously entered through an unlocked door. and, 

return'ed merely for the purpose,of completing 

the levy... Rut if lawful means 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 theEperformance of 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 commercial plant 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 Stearnes v. Vincent, 50 Mich. 209; 45 Am.Rep. 37, for, the 

proposition that force may be used on business premise8 to serve ,, 

civil process: 

- 1390- 
. 

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

"A building may be occupied partly 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 that purpose, 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 continues with a quote from Haggerty v. Wilber, 

16 Johns. 288; 8 Am. Dec. 321: 

"'The privilege which 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 forming no 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 its wish 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 intrusion when the 

writ is against a stranger, as well as when against 

the owner. But this supposition is not supported 

by the authorities. An officer may enter the house 

of A for the purpose of~levying.,upon B's goods which 

are therein. A forcible entry must 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 justify his " 

entry. He is a trespasser. When the officer has ' 

once lawfully entered the outer door, the sanctity 

of the dwelling, as regards that writ under which 

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 

search warrants: 

-1391- 
, . 

Honorable W. C. Lindsey, Page 9 (M-285) 

Art.. 15.24 - "In making 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 officer may 

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 officer may 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 search warrant, 

the officer may break down a door or a window of any 

house which he is ordered to search, if he cannot 

effect an entrance by other less violent means; but 

when the warrant issues only for the purpose of din-, 

covering property stolen or otherwise obtained in 

violation of the penal law, without designating any 

particular place 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 identifying himself and stating the purpose of his visit, 

has authority to go aboard a domestic or foreign merchant 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 serving process. 

Article 388, V.A.P.C., provides a penalty for opposing the ,, 

arrest of another~for felony. 

"Whoever shall wilfully oppose or resist an 

officer in executing, or attempting to execute 

any lawful warrant for the arrest of another per- 

- 1392- 
. 

Honorable W. C. Lindsey, Page 10 (M-285) 

son in a felony case shall be confined in the 

penitentiary not less than two nor more than 

five years. If ,arms be used in such resistance, 

he shall be confined in the penitentiary not 

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 shall wilfully oppose or resist 

an officer in executing or attempting to execute 

any lawful warrant 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-five nor more than five 

hundred dollars, and if arms be used, be fined 

not less than fifty nor 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 legal manner. 

"To render a person guilty of any offense included 

within the meaning of articles 338 and 339 the warrant 

or process must be executed or its execution attempted 

in a legal manner." 

Article 336, V.A.P.C., sets forth the fine for preventing 

execution of civil process by 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 five hundred dollars: evading the execution of such process is not an offense under this article." 

Those who would hinder a law enforcement officer might also 

become subject to Article 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." Under Article 79 of the penal Code, Dacceesories shall 

be punished by the infliction of the lowest penalty to which the 

principal would be liable." 

- 1393 - 
Honorable W. C. Lindsey, Page 11 (M-285) 

SUMMARY 

A Constable or Sheriff has no authority to serve 

criminal or civil process on board any foreign naval 

vessel or any foreign merchant vessel where the United 

States Department of State recognizes a sovereign immunity, However, absence such recognition, a Constable 

or Sheriff does have authority to enter a domestic or 

foreign merchant vessel without 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 Sheriff has no authority to serve 

process on board a United States naval vessel; the 

persons upon whom such process is to be served;may be 

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 

subjects himself to certain penalties and fines. 

truly yours, 

A 

Prepared by Charles T. Rose 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Hawthorne Phillips, Chairman 

Xerns Taylor, Co-Chairman 

Robert Lattimore 

Fisher Tyler 

Ralph Rash 

Malcolm Quick 

EXECUTIVE ASSISTANT 

A. J. Carubbi, Jr.