Untitled Texas Attorney General Opinion

GREG ABBOTT

March 13,2008

The Honorable Susan D. Reed Opinion No. GA-0608

Bexar County Criminal District Attorney

Cadena-Reeves Justice Center Re: Whether article 2.122(a)(6) of the Code of

300 Dolorosa, Fifth Floor Criminal Procedure, which grants certain state felony

San Antonio, Texas 78205-3030 law enforcement authority to inspectors of the United

States Postal Service, applies to inspectors of both

the United States Postal Inspection Service and the

United States Postal Service, Office of Inspector

General (RQ-0628-GA)

Dear Ms. Reed:

You ask whether article 2.122(a)(6) of the Code of Criminal Procedure, which grants certain

state felony law enforcement authority to inspectors of the United States Postal Service (the "Postal

Service"), applies both to inspectors of the United States Postal Inspection Service (the "USPIS")

and to inspectors of the United States Postal Service, Office of Inspector General (the

"USPS-OIG).

Postal inspectors' federal authority to enforce postal criminal laws does not authorize them

to enforce state criminal laws. See Santoni v. Potter, 369 F.3d 594,599 (1st Cir. 2004) (holding that

"[plostal inspectors are not authorized under federal law to execute a warrant or make an arrest for

a state law offense"). State law may grant powers to enforce its laws to federal officials, however.

See id."

Article 2.122(a) of the Code grants to "named criminal investigators of the United States,"

some of the powers of a state peace officer-"the powers of arrest, search and seizure as to felony

'See Letter from Honorable Susan D. Reed, Bexar County Criminal District Attorney, to Honorable Greg

Abbott, Attorney General of Texas, at 2 (Sept. 19,2007) (on file with the Opinion Committee, also available at http://

www.oag.state.tx.us) [hereinafter Request Letter].

'Also 4 Unitedstates. v. Sealed Juvenile 1, 255 F.3d 213,217 (5th Cir. 2001) (holding that arrest by federal

customs agent for a state offense must be authorized by state law). In that case the Fifth Circuit determined that the

customs agent was not a state peace officer according to article 2.122 of the Code of Criminal Procedure and hence did

not have the authority to arrest for state traffic offenses. Id. The court hrther held, however, that state law granted the

customs agent the authority to effect a "citizen's arrest" for a breach of the peace committed in the agent's presence.

Id.

The Honorable Susan D. Reed - Page 2 (GA-0608)

offenses only under the laws of the State of Texas." TEX.CODECFUM.PROC.ANN. art. 2.122(a)

(Vernon Supp. 2007).3 "Inspectors of the United States Postal Service" were added to the statute's

list of authorized federal officers in 1985. Id. art. 2.122(a)(6); see also Act of May 26, 1985,69th

Leg., R.S., ch. 543, 5 1, 1985 Tex. Gen. Laws 2148,2148. Due to the later establishment of the

USPS-OIG as an independent unit within the Postal Service, you wish to know whether postal

inspectors of both the USPS-OIG and the USPIS possess the law enforcement authority Texas has

granted the "Inspectors of the United States Postal Service" in article 2.122(a)(6) of the Code of

Criminal Procedure. Request Letter, supra note 1, at 2-3.

I. Background

The USPIS and USPS-OIG derive their federal investigative authority from 18U.S.C. fj 3061

(2000) (granting investigative and other law enforcement powers to "Postal Inspectors and other

agents of the United States Postal Service designated by the Board of Governors to investigate

criminal matters related to the Postal Service and the mail^").^ That grant of authority is limited to

"the enforcement of laws regarding property in the custody of the Postal Service, property of the

Postal Service, the use of the mails, and other postal offenses" and the enforcement of certain other

federal laws determined to "have a detrimental effect upon the operations of the Postal Service." Id.

6 3061(b)(l)-(2).

Historically, postal inspectors' law enforcement authority included the investigation and

suppression of certain offenses without distinction as to whether the offense was committed by a

Postal Service employee or by a member of the general public. See, e.g., United States v. Gillyard,

726 F.2d 1426 (9th Cir. 1984) (investigation and arrest of postal employee for embezzlement from

the mail); United States v. Brown, 716 F.2d 457 (7th Cir. 1983) (investigation leading to indictment

of postal service clerk for conversion of postal funds); Ward v. United States, 3 16 F.2d 113 (9th

Cir.), cert. denied, 375 U.S. 862 (1963) (investigation and arrest of railroad terminal employee for

possession of stolen mail). The USPS-OIG was established in 1997 to, among other things:

"[plrovide an independent and objective unit to conduct and supervise audits and investigations

relating to programs and operations of the Postal Service." 39 C.F.R. 5 221.3(b)(l) (2008); see also

5 U.S.C. app. 3 5 8G(f) (2000). To that end, the USPS-OIG is responsible for "detecting and

preventing fraud, waste, and abuse in the programs and operations of the Postal Service, [and]

investigating all allegations of violations of postal laws or misconduct by postal employees,

including mail theft." 39 C.F.R. 5 230.1(d) (2008). The USPS-OIG and its inspector general have

"oversight responsibilities for all activities of the Postal Inspection Service." Id. $5 221.3(b)(4),

230.1 (e).

3Article2.122(a) clarifies that while the named federal investigators have the state powers specified, they "shall

not be deemed [state] peace officers." TEX.CODECRIM.PROC. ANN.art. 2.122(a) (Vernon Supp. 2007). See State v.

Garza, 783 S.W,2d 198, 199-200 & n.2 (Tex. 1989) (holding that article 2.122 gives designated federal agents the

authority to seize property in connection with a state law felony, but are not "peace officers" under the forfeiture statute).

4Seealso Brief from Elizabeth P. Martin, General Counsel, Office of Inspector General, United States Postal

Service, For Consideration By The Attorney General For The State Of Texas, at 1 (Oct. 22, 2007) (on file with the

Opinion Committee) [hereinafier OIG Brief].

The Honorable Susan D. Reed - Page 3 (GA-0608)

Title 39, section 233.1 of the Code of Federal Regulations, entitled "Arrest and investigative

powers of Postal Inspectors," sets forth certain authority of inspectors of the USPIS and inspectors

of the USPS-OIG, referring to both as "Postal Inspectors." Id. 5 233.1(a). While recognizing their

common authority to enforce laws related to the mails, the section circumscribes the primary

responsibility of the USPS-OIG and the USPIS:

(b) Limitations. The powers granted by paragraph (a) of this section

shall be exercised only--

(1) In the enforcement of laws regarding property in the custody of

the Postal Service, property of the Postal Service, the use of the mails,

and other postal offenses. With the exception of enforcing laws

related to the mails:

(i) The Office of Inspector General will investigate all

allegations of violations of postal laws or misconduct by postal

employees, including mail theft; and

(ii) The Inspection Service will investigate all allegations of

violations of postal laws or misconduct by all other persons.

Id. 5 233.l(b).

11. Analysis

The goal of statutory construction is to ascertain and give effect to legislative intent. See Tex.

Natural Res. Conservation Comm 'n v. Lakeshore Util. Co., 164 S.W.3d 368,378 (Tex. 2005). We

derive the Legislature's intent primarily from the statute's plain language. Id. Generally, a statute's

words are given their common meaning. TEX.GOV'TCODEANN. 5 3 11.011(a) (Vernon 2005).

Article 2.122(a)(6) of the Code of Criminal Procedure grants certain law enforcement authority to

"Inspectors of the United States Postal Service" without regard to the internal department or unit of

the Postal Service employing such inspectors. See TEX.CODEC m . PROC.ANN. 5 2.122(a)(6)

(Vernon Supp. 2007). Although USPS-OIG did not exist in 1985 when article 2.122(a)(6) was

promulgated, the statute's plain language applies to an inspector of USPS-OIG as well as to an

inspector of USPIS because they are both "Inspectors of the United States Postal Service." Id. And

as the USPS-OIG has informed us, and as reflected in Postal Service rules, USPS-OIG and USPIS

inspectors exercise law enforcement functions held by postal inspectors generally in 1985. See OIG

Brief, supra note 4, at 1; see also 39 C.F.R. 5 233.l(b)(l)(i)-(ii) (2008). Accordingly, we conclude

that article 2.122(a)(6) of the Code of Criminal Procedure grants certain state powers of arrest,

search, and seizure to both the inspectors of the USPIS and the inspectors of the USPS-OIG.

The Honorable Susan D. Reed - Page 4 (GA-0608)

S U M M A R Y

Article 2.122(a)(6) of the Texas Code of Criminal Procedure

grants certain state powers of arrest, search, and seizure to inspectors

of the United States Postal Inspection Service and to inspectors of the

United States Postal Service, Office of the Inspector General.

Very truly yours,

VREG

ABBOTT

Attorney General of Texas

KENT C. SULLIVAN

First Assistant Attorney General

ANDREW WEBER

Deputy Attorney General for Legal Counsel

NANCY S. FULLER

Chair, Opinion Committee

William A. Hill

Assistant Attorney General, Opinion Committee