# Scoggin v. State > Court of Criminal Appeals of Texas · February 4, 1931 · 117 Tex. Crim. 294 URL: https://www.frixlaw.com/law-library/cases/3975611 ## Case - **Full name:** J. C. Scoggin v. the State - **Court:** Court of Criminal Appeals of Texas - **Decided:** February 4, 1931 - **Citations:** 117 Tex. Crim. 294; 38 S.W.2d 592; 1931 Tex. Crim. App. LEXIS 390 - **Precedential status:** Published - **Opinion:** Addendum by Morrow - **Judges:** Lattimore, Morrow - **Cited by:** 9 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3975611 ## Opinion text *299 ON MOTION FOR REHEARING. MORROW, Presiding Judge. — The soundness of the conclusion announced in the original opinion that the provisions of Chapter 47, Acts of the 41st Legislature, 2nd Called Session, was inoperative is challenged by the appellant in his motion for rehearing and by argument prepared upon behalf of the State. Section 1, C. 47, Acts of 41st Leg. (1929), 2nd C. S., p. 83, (Vernon’s Ann. P. C., Art. 803a) amending C. 218, Gen. & Sp. Laws, Reg. Sess. 40th Leg., reads as follows: “No officer shall have authority to make any arrests for violation of the laws of this State relating to the speed of motor vehicles unless he is at the time of such arrest wearing a uniform and badge clearly distinguishing him from ordinary civilians or private citizens, and shall have no authority to make any such arrests by designedly remaining in hiding or lying in wait unobserved in order to trap those suspected of violating the speed laws in reference to motor vehicles. No such officer, and no sheriff, constable, marshal, policeman, traffic officer, or other officer shall be entitled to any fee for making an arrest or serving a warrant of arrest or claim, demand or receive any witness fee or commitment fee for an alleged violation of any law of this State relative to such speeding. It shall be the duty of the district or county attorney, as the case may be, to dismiss any and all prosecutions wherein it is shown that the arrest was- made by designatedly remaining in hiding or lying in wait unobserved in order to trap those suspected of violating such speed law, and this provision shall apply to such conduct by any highway officer, sheriff, deputy sheriff, constable, marshal, policeman, or any other officer of this State, or political subdivision thereof, provided any officer pursuing or lying in wait in any vehicle other than a motorcycle shall be held to be designedly remaining in hiding as defined in this Act. “The venue of any prosecution for speeding of motor vehicles under State laws shall be in the justice precinct only wherein the offense was committed or in the precinct of the defendant’s residence. The badge herein required to be worn by an officer making an arrest shall be diamond-shaped, and the uniform prescribed to be worn by such officer or officers shall consist of a cap, coat and trousers of dark grey color, provided that the uniform worn by city policemen within the corporate limits of an incorporated city or town may be either blue or dark grey in color. The statutes touching the use of motor vehicles upon the highway are found in Chapter 1, Title 13, consisting of Articles 783 to 827, in elusive. See P. C., 1925, pp. 173-184, also Chapters 41 and 42, Acts of 41st Leg., 2nd C. S. In Sec. 18, Chap. 42, Acts of 41st Leg. (1929), 2nd Called Sess,, *300 that part of Chapter 1, Title 13, Penal Code, 1925, composed of Arts. 789, 793, 818, 823, and 824, are repealed. These expressly repealed articles related to the speed of a motor vehicle, the classification and over weight of certain commercial vehicles, etc. The articles repealed are covered by the Acts of the Legislature in Chapter 42, supra. In Art. 803, Title 13, P. C., it is said: “Any peace officer is authorized to arrest without warrant any person found committing a violation of any provision of the preceding articles of this chapter.” Sec. 16 of Chap. 42, supra (Vernon’s Ann. P. C., Art. 827a, Sec. 16), authorizes and requires the State Highway Department to employ a number of inspectors known as the State Highway Patrol, who are given certain duties not necessary here to mention, and for the purpose of enforcing said law and other State laws relating to traffic on the highways they are given the powers of peace officers. In Art. 36, C. C. P., peace officers are enumerated as follows: “The following are ‘peace officers’: the sheriff and his deputies, constable, the marshal or policemen of an incorporated town or city, the officers, non-commissioned officers and privates of the State ranger force, and any private person specially appointed to execute criminal process.” The duties of such officers are prescribed in Art. 37, C. C. P., which reads as follows: “It is the duty of every peace officer to preserve the peace within his jurisdiction. To effect this purpose, he shall use all lawful means. He shall, in every case where he is authorized by the provisions of this code, interfere without warrant to prevent or suppress crime. He shall execute all lawful process issued to him by any magistrate. or court. He shall give notice to some magistrate of all offenses committed within his jurisdiction, where he has good reason to believe there has been a violation of the penal law. He shall arrest offenders without warrant in every case where he is authorized by law, in order that they may be taken before the proper magistrate or court and be tried.” Articles 323 and 324, P. C., denounce as a penal offense the refusal or neglect to perform the duties required in Arts. 36 and 37, C. C. P. In Title 5, Chap. 1, C. C. P., are the circumstances under which arrests without warrant by State and municipal officers may be made. The articles of the statute mentioned above define and restrict the use of motor vehicles on the public highways of the State, prescribe the penalties for the violation of the regulations, create a special police force with the authority of peace officers in the matter of enforcing obedience to the highway regulations in co-operation with the regular peace officers, upon all of whom are conferred the right and duty to arrest without warrant transgressions of the provisions of the State Highway Law. By the statute mentioned, as well as by the general law, it is made the duty of peace officers to arrest for all violations of the laws of the State and to *301 execute process of the courts and of the legislature. There are penal laws upon the statute books to punish officers who refuse or neglect to perform the duties imposed upon them. See Arts. 36 and 37, C. C. P., and Arts. 323 and 324, P. C. By Sec. 1, Chap. 47, Acts of 41st Leg., supra, the right of all peace officers to arrest persons violating the laws relating to the speed, of motor vehicles is forbidden, unless, the officer is wearing a uniform as prescribed in the act mentioned. In Art. 1, Sec. 28, Const of Texas, is found the following: “No power of suspending laws in this State shall be exercised by the legislature.” Nothing in Chap. 47, supra, or eleswhere in the statutes demands that peace officers shall wear uniforms in the discharge of their duties. Under the terms of Chap. 47, if he does not wear the uniform he cannot obey the general law and arrest the offender. The option is. with the officer to enforce the law or suspend it as he pleases. He may at one hour obey the law and at the next hour discard the uniform and suspend the law demanding the arrest of violators thereof. If the officer elects to ignore Arts. 36 and 37, supra, and Chap. 1, Title 5, supra, and refuses or neglects to make an arrest of violators of the speed law, he would not, by any specific legislative declaration, be exempt from suffering the penalty prescribed by Art. 324, P. C. If he may, at his pleasure, simply by neglecting to wear a uniform, exculpate himself from the penalty mentioned, it is difficult to find sound ground for holding that in so doing he does not suspend the operation of the penal statutes. A statute made penal the sale of railroad tickets by any person other than an agent of some railroad company. In the law was found the following language: “Provided, that the provisions of this act shall not apply to any person holding a ticket, upon which is not plainly printed that it is a penal offense for him or her to sell, barter, or transfer said ticket for a consideration.” The fact that it was optional with the railroad company issuing the tickets to print or fail to print on its tickets the indorsement quoted above, and thereby at its option made the sale of the tickets p.enal or otherwise, was held by this court to confer upon the company issuing the tickets the authority to suspend the law penalizing the sale of tickets. See Jannin v. State, 42 Texas Crim. Rep., 631 , 51 S. W., 1126 , 62 S. W., 419 , 53 L. R. A., 349. In the case of T. & P. Ry. Co. v. Mahaffey, 98 Texas Crim. Rep., 392 , 84 S. W., 646 , the same law was held invalid by the Supreme Court of this State. The law relating to fire-escapes on buildings was held violative of Art. 1, Sec. 28, of the Constitution for the reason that it made no rule touching the character of such fire-escapes but left that optional with *302 the State Fire Marshal. See Dockery v. State, 93 Texas Crim. Rep., 220 , 247 S. W., 508 . A like ruling was made in ex parte Adlof, 86 Texas Crim. Rep., 13 , 215 S. W., 222 , concerning an ordinance governing a public cemetery in which the privilege of dressing graves and planting flowers was not defined in the law but was left subject to the judgment of the superintendent of the cemetery. Many examples of the application of Art. 1, Sec. 28 of the Constitution are found in the reports in this State, both of the Supreme Court and this court. The restriction against the suspension of laws, rendered void acts of the legislature leaving the enforcement of a criminal law in given localities to the popular vote, as Lyle v. State, 80 Texas Crim. Rep., 606 , 193 S. W., 680 ; State v. Swisher, 17 Texas Rep., 441 ; Brown Cracker & Candy Co. v. City of Dallas, 104 Texas Rep., 290 , 137 S. W., 342 ; Arroyo v. State (Texas Crim. App.), 69 S. W., 503 . The subject before this court is not the authority, by proper regulation, to require peace officers to wear on their person some insignia of office. The vice in the law is referable to the fact that the terms in which the legislature has expressed its will offend against the mandate of the Constitution which declares that no law can be suspended save by the legislature. As understood by the writer, the law, as set forth in Chap. 47, supra, leaves the public without any protection against the evil resulting from and the danger attending the unlawful speeding of automobiles upon the highway. Under the law, if the writer understands it, the absolute duty is imposed upon no peace officer to arrest offenders for violating the speed law. It is permissible that he arrest them provided he wear the uniform described in the statute. There is nothing, however, in the statute which requires him to wear a uniform, and without a uniform he can make no such arrest. The right and duty of arrest, therefore, depends not upon the mandate of the law but upon the option of the officer. The enactment of Chap. 47, supra, reflects a meritorious effort of the makers of the law to shield the individual from abuses arising from the privilege of arresting without warrant persons violating the speed law. Confidence is expressed in the ability of the law-makers to find means of protecting the public from the evil mentioned. The present statute, however, is regarded as in conflict with the ifundamental law, and for that reason and those advanced in the original ^opinion the motions for rehearing are overruled. Overruled. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3975611. Public record. Not legal advice.