Attorney General Opinion GA-0690

ATTORNEY GENERAL OF TEXAS GREG ABBOTT January 14, 2009 The Honorable Bobby Lockhart Bowie County Criminal District Attorney Post Office Box 3030 Texarkana, Texas 75504 Dear Mr. Lockhart: Opinion No. GA-0690 Re: Authority of City of Texarkana municipal officers under various circumstances (RQ-0717-GA) You inform us that the Texarkana, Texas Police Department and the Texarkana, Arkansas Police Department jointly operate a Bi-State Narcotics Task Force and a Metro Swat Team.! In relation to those units, you·ask questions about the powers that peace officers ofTexarkana, Texas and Texarkana, Arkansas possess. Request Letter at 1-2. Your questions address two distinct groups: (1) peace officers ofthe Texarkana, Arkansas Police Departmentwhile in Texas; and (2) peace officers ofthe Texarkana, Texas Police Department while in Arkansas. Because the Arkansas courts and the Arkansas Attorney General are better suited to opine on Arkansas law, we decline to comment on your questions to the extent that they implicate that state's law.2 We therefore limit this opinion to your questions as they relate to Texas law. You first ask whether peace officers employed by the Texarkana, Arkansas Police Department have powers in the State ofTexas outside the territorial limits ofthe City ofTexarkana, Texas, and ifso, how far those powers extend. Article 2.124(b) ofthe Code ofCriminal Procedure provides: A commissioned peace officer of a state of the United States of America adjoining this state, while the .officer is in this state, has under this subsection the same powers, duties, and immunities as a peace officer ofthis state who is acting in the discharge ofan official ISee Request Letter at 1 (available at http://www.texasattorneygeneral.gov). 2FormerArkansas Attorney General Mike Beebe issued an opinionthat addressed questions relating to the arrest powers that Texarkana, Texas police officers possess while in Texarkana, Arkansas. See Ark. Ope Att'y Gen. 2006-175 (concluding law enforcement officers of Texarkana, Texas have arrest powers in Arkansas under the circumstances authorized in Ark. Code Ann. § 16-81-115). Likewise here, your questions concerning Texarkana, Texas peace officers while in Arkansas might be directed to the Arkansas Attorney General for comment. The Honorable Bobby Lockhart - Page 2 (GA-0690) duty, but only in a municipality some part ofthe municipal limits of which are within one mile ofthe boundary between this state and the adjoining state and only at a time the peace officer is regularly assigned to duty in a county, parish, or municipality that adjoins this state. TEX. CODE CRIM. PROC. ANN. art. 2.124(b) (Vernon 2005) (emphasis added). Under a plain language construction of the statute, subsection (b) grants peace officers from an adjoining state jurisdiction throughout the municipal limits of a municipality that is within one mile ofthe border but not beyond those municipal limits.3 Although Texas municipal peace officers may have jurisdiction under specific circumstances beyond the municipal limits, article 2.124, subsection (b) expressly limits the powers ofa peace officer from an adjoining state to the municipal limits ofthe Texas city and not beyond.4 The powers granted to peace officers from an adjoining state under subsection (b) exist regardless of whether the cities on either side of the border have entered into an interlocal cooperation agreement under chapter 791 ofthe Government Code, the Interlocal Cooperation Act (hereafter"the Act"). See generally TEX. CODECRIM. PROC. ANN. art. 2.124(b) (Vernon 2005); TEx. GOV'T CODE ANN. §§ 791.001-.033 (Vernon 2004 & Supp. 2008). However, the Act allows local governments to contract with each other to collectively perform certain governmental functions. TEX. GOV'T CODE ANN. § 791.011(a) (Vernon Supp. 2008). The Act defines "local government" to mean a "county, municipality, special district, ... or other political subdivision of this state or another state." Id. § 791.003(4)(a) (emphasis added). You inform us that, pursuant to the Act, the cities of Texarkana, Texas and Texarkana, Arkansas have entered into the Interlocal Cooperation Agreement for Mutual Assistance in Law Enforcement (hereafter "Interlocal Agreement"), an agreement whereby the peace officers ofeach city can serve as law enforcement officers ofthe.other city. Under an interlocal cooperation agreementthe officers providing law enforcement services are in fact officers ofthe local government receiving the officers' services. See Tex. Att'y Gen. Ope No. GA-0189 (2004) at 6 ("[D]eputy sheriffs of one county acting as peace officers in another county under an interlocal agreement would in fact be officers of the law enforcement authority of the county receiving the officer's service~."). 3you also question whether subsection (b) means that "neither agency can go beyond" one mile into the adjoining state. Letter Briefat4 (available athttp://www.texasattorneygenera1.gov). Subsection(b) does not create such extensive restrictions on peace officers from the adjoining state. The phrase "some part ofthe municipal limits ofwhich are within one mile" by its terms restricts which cities the statute applies to. TEX. CODE CRIM. PROC. ANN. art. 2. 124(b) (Vernon 2005); see also TEX. GOV'TCODE ANN. § 311.011(a) (Vernon 2005) (words and phrases shall be read in context). It does not limit the jurisdiction ofpeace officers from an adjoining state to within one ~ile ofthe border. 40ther statutory provisions grant peace officers from adjoining states limited powers while in Texas for specific reasons. See, e.g., TEX. CODE CRIM. PROC. ANN. art. 2.124(a) (Vernon 2005); ide art. 14.051(a). Such provisions may grant jurisdiction broader than article 2.124, subsection (b), and this opinion should not be construed as limiting the jurisdiction granted through provisions other than subsection (b). The Honorable Bobby Lockhart - Page 3 (GA-0690) Thus, when peace officers originally employed by Texarkana, Arkansas serve as law enforcement officers in Texarkana, Texas pursuant to the Interlocal Agreement, they are considered law enforcement officers of Texarkana, Texas. See ide As such, they have the same powers and duties as members ofthe Texarkana, Texas Police Department, subject to any limit~tions created by the Interlocal Agreement itself. It is therefore necessary to look to the terms of the Interlocal Agreement to determine the jurisdictional limits of those officers. Because this office does not construe contract terms, we decline to comment on whether the Interlocal Agreement extends the jurisdiction for peace officers originally employed by Texarkana, Arkansas while they serve in Texarkana, Texas pursuant to the agreement. See Tex. Att'y Gen. Ope No. GA-0302 (2005) at 2. We simply observe that such an agreement could providejurisdiction for those officers equal to that of Texarkana, Texas officers. You also ask whether "peace officers employed by the Texarkana, Arkansas Police Department have legal authority to use deadly force in the State of Texas while deployed as a part ofthe Texarkana Metro SWAT Team." Request Letter at 1. You note that article 2.124 ofthe Code of Criminal Procedure, which addresses the powers of peace officers from an adjoining state, "is silent on the issue ofdeadly force." Letter Briefat 4. Although that statute does not expressly allow an officer from an adjoining state to use deadly force in Texas, it gives an officer from an adjoining state, who otherwise meets the statutory requirements, "the same powers, duties, and immunities as a peace officer of this state who is acting in the discharge of an official duty." TEX. CODE CRIM. PROC. ANN. art. 2.124(b) (Vernon 2005). Based on your Letter Brief, it appears that your question arose because of the language of article 2.124, subsection (a) ofthe Code ofCriminal Procedure. See Letter Briefat 4. You suggest that article "2.124 states that a commissioned police officer from [an] adjoining state has the same powers, duties, and immunities as a Texas police officer, but then that article sets specificlimits, i.e. physical custody of an inmate at [a] medical facility; transporting an inmate; regain[ing] physical custody." Id. However, the "specific limits" that you refer to apply only to the powers granted in subsection (a), when a peace officer is transporting an inmate to a medical facility in Texas. See TEX. CODE CRIM. PROC. ANN. art. 2.124(a) (Vernon 2005). Subsections (a) and (b) ofarticle 2.124 were enacted at different times and for different purposes, and nothing in the statute itself or the legislative history suggests that the limits on power in subsection (a) apply to the powers granted in subsection (b).5 Thus, we conclude that under article 2.124(b) a peace officer from an adjoining state, who otherwise meets the requirements of that statute, has "the same powers, duties, and 5See Act ofMay 8, 1995, 74th Leg., R.S., ch. 156, § 1, 1995 Tex. Gen. Laws 1006, 1006-07; HOUSE COMM. ON PUB. SAFETY, BILL ANALYSIS, Tex. H.B. 1155, 74th Leg., R.S. (1995) (purpose ofbill was to "allow commissioned peace officers ofa neighboring state to have the same powers, duties, and immunities as Texas peace officers, but only while transporting an inmate from a neighboring county to and from a hospital in Texas"); Act ofMay 3, 1999, 76th Leg., R.S., ch. 107, § 1,1999 Tex. Gen. Laws 544,544; HOUSECOMM. ON PUB. SAFETY, BILL ANALYSIS, Tex. H.B. 165, 76th Leg., R.S. (1999) (purpose ofbill was to allow "law enforcement agencies in another state to enforce Texas laws in a municipality which is split between Texas and another state"). The Honorable Bobby Lockhart - Page 4 (GA-0690) immunities," including the power to use deadly force, "as a peace officer ofthis state who is acting in the discharge of an official duty." TEX. CODE CRIM.PROC. ANN. art 2.124(b) (Vernon 2005).6 As discussed above, the powers granted to Texarkana, Arkansas peace officers under article 2.124(b) exist regardless of whether the local governments have entered into an interlocal cooperation agreement. However, when servingpursuantto the Interlocal Agreement, peace officers of Texarkana, Arkansas are considered officers of Texarkana, Texas, and they possess the same authority to use deadly force as members ofthe Texarkana, Texas Police Department, subject to any limitations created by the Interlocal Agreement. Thus, depending on the specific terms of the Interlocal Agreement, their authority to use deadly force may be broader than that granted under article 2.124(b). Because, our office does not construe contract terms, we decline to comment on whetherthe Interlocal Agreement extends the authority ofTexarkana, Arkansas peace officers to use deadly force beyond the municipal limits of Texarkana, Texas. 6The Legislature has articulated standards regardingthe authority ofpeace officers to use deadly force. See TEX. PENAL CODE ANN. § 9.51(a), (c)-(e), (g) (Vernon 2003). Whether the use ofdeadly force is authorized in a particular circumstance is a fact question, and this office does not resolve fact questions in the opinion process. See Granger v. State, 3 S.W.3d 36,39 (Tex. Crim. App. 1999) (quoting Hayes v. State, 728 S.W.2d 804,808 (Tex. Crim. App. 1987)); Tex. Att'y Gen. Ope No. GA-0620 (2008) at 4-5 (resolution offactual issues not amenable to the opinion process). The Honorable Bobby Lockhart - Page 5 (GA-0690) SUMMARY Article 2.124, subsection (b) ofthe Texas Code of Criminal Procedure grants limited powers to officers from an adjoining state while in Texas in circumstances where the municipal limits of a municipality are within one mile ofthe boundary between this state and the adjoining state. Under that provision, the jurisdiction of peace officers ofthe Texarkana, Arkansas Police Departmentextends to the municipal limits of Texarkana, Texas and not beyond. Article 2.124(b) also grants those officers from the adjoinin~ state the same powers, duties and immunities as an officer of this state who is acting in the discharge ofan official duty. Thus, officers ofthe Texarkana, Arkansas Police Department, while in Texarkana, Texas, have the same authority to use deadly force as an officer of this state. Under the Interlocal Cooperation Act, when peace officers of Texarkana, Arkansas are serving as law enforcement officers in Texarkana, Texas pursuant to the Interlocal Agreement, they are considered law enforcement officers of Texarkana, Texas. Thus, when serving pursuant to that agreement, they have the same jurisdictional limits and authorityto use deadly force as officers ofthe . Texarkana, Texas. Police Department, except as limited by the Interlocal Cooperation Agreement. ANDREW WEBER First Assistant Attorney General JONATHAN K. FRELS Deputy Attorney General for Legal Counsel NANCY S. FULLER Chair, Opinion Committee Virginia K. Hoelscher Assistant Attorney General, Opinion Committee