Untitled Texas Attorney General Opinion

OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

JOHN CORNYN

February 2 1,2002

The Honorable Jeri Yenne Opinion No. JC-0466

Brazoria County Criminal District Attorney

Brazoria County Courthouse Re: Whether peace officers serving as off-duty

111 East Locust Street, Suite 408A security guards on casino boats have authority to

Angleton, Texas 775 15 make arrests and related questions

(RQ-0422-JC)

Dear Ms. Yenne:

You ask several questions about the authority of Texas peace officers serving as off-duty

security guards on casino boats that sail from a port in your county to waters beyond the territorial

jurisdiction of the State of Texas. 1 You ask, among other things, about these peace officers’

authority to make arrests both within the state’s territorial waters and on the seas outside the

territorial boundaries of the state. Your questions raise complex issues of first impression. In

answering them, we focus primarily upon state rather than federal or international law. In addition,

your questions are quite general and we address them in only general terms. We conclude that Texas

peace officers have the authority to make arrests under state law within the state’s territorial waters, .

although the extent of that authority depends upon the type of peace officer and whether he or she

is within his or her jurisdiction. Once a casino boat sails beyond the state’s territorial waters,

however, an officer does not have authority to keep the peace and arrest passengers under Texas law.

Federal law, the law of the ship’s flag state, and international law may provide authority to keep

order on the ship outside the state’s territorial waters, but are beyond the scope of this opinion.

I. LEGAL FRAMEWORK

Before addressing your specific questions, we briefly outline the relevant legal framework.

You ask about casino boats that convey passengers from a port in your county into the Gulf of

Mexico for the purpose of gambling, returning to the same port after a number of hours. State and

federal law generally prohibit gambling and other gambling related activities, see, e.g., 18 U.S.C.

$5 1081-84 (1994) (federal gambling offenses), 15 U.S.C. 99 1171-78 (1994 & Supp. V 1999)

(federal restrictions on transporting gambling devices); TEX. PEN. CODE ANN. ch. 47 (Vernon 1994

‘Letter from Honorable Jeri Yenne, Brazoria County Criminal District Attorney, to Honorable John Comyn,

Texas Attorney General (Aug. 23, 2001) (on file with Opinion Committee) [hereinafter Request Letter].

The Honorable Jeri Yenne - Page 2 (JC-0466)

& Supp. 2002) (state gambling offenses), but make certain exceptions for the activities of boats that

make trips out of United States ports. Under federal law, these boats may not conduct gambling

operations except beyond the territorial waters of the United States. See 18 U.S.C. 55 1081, 1082

(1994) (Federal Gambling Ship Act); 26 U.S.C. 9 4472 (1994) (definition of “covered voyage”); 26

C.F.R. 5 43.4472-l(e) (2001) (definition of “territorial waters”). Similarly, state law prohibits

gambling and other gambling-related activities, see TEX. PEN. CODE ANN. ch. 47 (Vernon 1994 &

Supp. 2002) (gambling offenses), but provides a defense for certain gambling-related offenses for

vessels equipped with gambling devices provided that the devices are not operated within the state’s

territorial waters, see id. 8 47.09(b) (V emon Supp. 2002); see also id. 5 47.10 (Vernon 1994)

(limitation on defense); TEX. OCC. CODE ANN. ch. 2003 (Vernon 2002) (state inspection and

municipal inspection and regulation of gambling vessels).

The State of Texas’ territorial waters extend three marine leagues (nine nautical or

geographical miles)* into the Gulf of Mexico. The territorial waters of most states extend only three

geographical miles from the coastline. See 43 U.S.C. 8 13 12 (1994) (“The seaward boundary of each

original coastal State is approved and confirmed as a line three geographical miles distant from its

coast line . . . . Any State admitted subsequent to the formation of the Union which has not already

done so may extend its seaward boundaries to a line three geographical miles distant from its coast

line . . . .“). The United States Supreme Court has held, however, that the State of Texas is entitled

to extend its seaward boundary three marine leagues into the Gulf of Mexico. See United States v.

La., 363 U.S. 1, 84 (1960) (under Federal Submerged Lands Act, 43 U.S.C. @j 1301-15, State of

Texas entitled to extend its seaward boundary three marine leagues from its coastline into the Gulf

of Mexico).

Consistent with this case law, section 11.012(a) of the Texas Natural Resources Code

provides that “[tlhe gulf%vard boundary of the State of Texas is the boundary determined in and

pursuant to the decision of the United States Supreme Court in Texas v. Louisiana, 426 U.S. 465

(1976),” a later case recognizing Texas’ seaward boundary at the three marine league line, see 426

U.S. at 466 n. 1, and establishing the lateral seaward boundary between Texas and Louisiana and

between Texas and the United States. In 1998, the Supreme Court entered a supplemental decree

in the Texas boundary case of United States v. Louisiana. That decree changed the federal-state

boundary from an ambulatory line of three marine leagues from Texas’ coastline to an irnmobile

boundary of three marine leagues as specified by fixed coordinates. See United States v. La. (Texas

Boundary Case), 525 U.S. 1 (1998).

Similarly, section 11 .013 of the Natural Resources Code expressly provides that “[t]he

gultiard boundary of each county located on the coastline of the Gulf of Mexico is the Three Marine

*One English, statute, or land mile equals approximately .87 geographical, marine, or nautical mile. A marine

league is equal to the distance of three nautical miles. See United States v. Cal., 38 1 U.S. 139, 148 n.8, 179 n.4 (1965).

The Honorable Jeri Yenne - Page 3 (JC-0466)

League line as determined by the United States Supreme Court.” TEX. NAT. RES. CODE ANN.

8 11.013(a) (V emon 2001). The Land Commissioner is charged with platting the sea boundaries

between the coastal counties. See id. 8 3 1.063.

For purposes of criminal jurisdiction, Congress has extended the United States’ seaward

boundary twelve nautical miles from the coast. See Pub. L. No. 104-l 32,s 901 (a) (1996), reprinted

in 18 U.S.C. 5 7, Notes (Supp. V 1999). The Federal Gambling Ship Act, however, excepts

gambling on vessels that is conducted more than three nautical miles from the United States

coastline. See United States v. One Big Six Wheel, 166 F.3d 498 (2d Cir. 1999) (holding that 12-mile

territorial limit established by the Federal Antiterrorism and Effective Death Penalty Act of 19960

does not affect Gambling Ship Act, 18 U.S.C. 5 1082, and concluding that for purposes of Gambling

Ship Act “‘territorial waters’ extend three nautical miles from the U.S. coastline”). On the other

hand, the State of Texas’ prohibition against gambling extends three marine leagues, or nine nautical

miles, into the Gulf of Mexico. See TEX. PEN. CODEANN. 9 47.09(b) (Vernon Supp. 2002) (defense

against gambling offenses for gambling boats applies only if gambling devices are disabled and not

used for gambling while the vessel is “in the territorial waters of this state”). As you inform us that

the casino boats that dock in your county conduct gambling only in international waters, beyond the

territorial waters of both the United States and the State of Texas, see Request Letter, supra note 1,

at 1, we need not address the significance, if any, in the differences between state and federal law.

Peace officers from your county and others in Texas are employed on these casino boats as

off-duty security guards. Under the Code of Criminal Procedure and the Penal Code, the term

“peace officer” is specifically defined to include a long list of law enforcement officers. See TEX.

CODE CFUM.PROC. ANN. art. 2.12 (Vernon Supp. 2002); TEX. PEN. CODEANN. § 1.07(36) (Vernon

1994) (defining “peace officer” in reference to, among other things, TEX. CODE CRIM. PROC. ANN.

art. 2.12). We assume that you ask about peace officers who fall within these statutory definitions.

The Private Security Act, TEX. OCC. CODE ANN. ch. 1702 (Vernon 2002), generally requires that

private security officers have a commission from the Texas Commission on Private Security, see id.

§ 9 1702.16 1-. 17 1, but excepts certain peace officers who work off-duty from this requirement, see

id. 5 1702.322( 1). For purposes of this opinion, we will assume that the peace officers at issue are

working as security guards under this exception to the Private Security Act.

II. ANALYSIS

You ask a variety of questions about Texas peace officers’ authority to maintain order and

make arrests on the casino boats both within and beyond the territorial waters of the state. We take

your ten questions somewhat out of order and first respond to your questions pertaining to peace

officers’ authority within the territorial waters of the State of Texas. In order to address these

questions, we examine, first, the geographical scope of Texas and its coastal counties for purposes

of criminal jurisdiction and, second, the nature of peace officers’ authority within state territorial

waters.

The Honorable Jeri Yenne - Page 4 (JC-0466)

A. Peace Officers’ Authority within the Territorial Waters of the State of Texas

1. Criminal Jurisdiction of the State of Texas in the Gulf of Mexico

The criminal jurisdiction of the State of Texas and its coastal counties extends to the three

marine league line. Although the United States Constitution grants federal courts exclusive

admiralty and maritime jurisdiction, states may exercise concurrent criminal jurisdiction within their

territorial waters provided that there is no conflict with federal law or the rights of foreign nations.

See Skiriotes v. Florida, 3 13 U.S. 69,75 (1941) (“Florida has an interest in the proper maintenance

of the sponge fishery and . . . the [sponge fishery] statute so far as applied to conduct within the

territorial waters of Florida, in the absence of conflicting federal legislation, is within the police

power of the State.“); State v. Stepansky, 761 So. 2d 1027,1033 (Fla. 2000) (“federal constitution’s

grant of power to federal courts to hear ‘all Cases of admiralty and maritime Jurisdiction,’ U.S.

CONST., art. III, 9 2, cl. 1, . . . does not preclude a state’s exercise of concurrent jurisdiction with the

federal government within the state’s territorial waters”) (citing Askew v. Am. Waterways Operators,

Inc., 411 U.S. 325,341 (1973); Hoopengarner v. United States, 270 F.2d 465,471 (6th Cir. 1959)).

Within its territorial waters, the State of Texas has asserted

full sovereignty over the water, the beds and shores, and the arms of

the Gulf of Mexico within its boundaries . . . , subject only to the

right of the United States to regulate foreign and interstate commerce

under Article I, Section 8 of the United States Constitution, and the

power of the United States over admiralty and maritime jurisdiction

under Article III, Section 2 of the United States Constitution.

TEX. NAT. F&S. CODE ANN. 8 11 .012(b) (Vernon 2001). Additionally, under the Penal Code, the

State of Texas has extended its criminal jurisdiction to “the land and water and air space above the

land and water over which the state has power to define offenses.” TEX. PEN. CODEANN. 8 1.04(d)

(Vernon 1994). These provisions and section 11.013 of the Natural Resources Code, which

expressly provides that “[t]he g&ward boundary of each county located on the coastline of the Gulf

of Mexico is the Three Marine League line,” TEX. NAT. RES. CODEANN. 5 11 .013(a) (Vernon 2001),

extend the criminal jurisdiction of the State of Texas and its coastal counties to the three marine

league line.

2. Peace Officers’ Authority on Casino Boats on the State’s Territorial Waters

As you are interested in peace officers’ authority to make arrests on casino boats upon seeing

crimes in progress, we focus on their authority to make arrests without a warrant. The authority of

a peace officer in this state depends in part upon whether the officer is physically located within his

or her jurisdiction, such as, for example, the county or city that he or she serves. The Code of

Criminal Procedure charges peace officers with “preserv[ing] the peace within the officer’s

The Honorable Jeri Yenne - Page 5 (JC-0466)

jurisdiction.” TEX. CODEGRIM.PROC.ANN. art. 2.13(a) (Vernon Supp. 2002). Within an officer’s

jurisdiction, the officer “shall use all lawful means” to, among other things, “in every case authorized

by the provisions of this Code, interfere without warrant to prevent or suppress crime,” and “arrest

offenders without warrant in every case where the officer is authorized by law, in order that they may

be taken before the proper magistrate or court and be tried,” id. art. 2.13(b)( 1), (4).

Chapter 14 of the Code of Criminal Procedure governs warrantless arrests. Under article

14.01(b), a peace officer may “arrest an offender without a warrant for any offense committed in his

presence or within his view,” see id. art. 14.01 (b) (Vernon 1977)’ but this authority is limited to the

officer’s geographic jurisdiction, see Angel v. State, 740 S.W.2d 727,732 (Tex. Crim. App. 1987)

(under section 14.01 (b) a peace officer can make a warrantless arrest only within his geographic or

territorial jurisdiction).

A peace officer also has authority to make certain arrests outside of his or her jurisdiction.

Under article 14.01 (a) of the Code of Criminal Procedure, a peace officer, like any other citizen,

may, without a warrant, “arrest an offender when the offense is committed in his presence or within

his view, if the offense is one classed as a felony or as an offense against the public peace.” TEX.

CODECRIM. PROC.ANN. art. 14.01(a) (Vernon 1977). This authority under article 14.01(a) to make

a warrantless arrest for a felony or an offense against the public peace committed in the officer’s

presence extends statewide and is not limited to acts that take place within the officer’s jurisdiction.

See Romo v. State, 577 S.W.2d 25 1,253 (Tex. Crim. App. [Panel Op.] 1979).

Significantly, another more recent addition to chapter 14, article 14.03(d), gives peace

officers specific authority to make warrantless arrests for certain offenses anywhere in the state. See

Yeager v. State, 23 S.W.3d 566’571-72 (Tex. App.-Waco 2000, pet. filed) (holding that subsections

(d) and (g) of article 14.03 extend peace officers’ geographic authority). It specifically authorizes

a peace officer “who is outside his jurisdiction” to arrest without a warrant a person who commits

an offense within the officer’s presence or view “if the offense is a felony, a violation of Title 9,

Chapter 42, Penal Code [disorderly conduct], a breach of the peace, or an offense under Section

49.02, Penal Code [public intoxication].” TEX. CODECRIM.PROC.ANN. art. 14.03(d) (Vernon Supp.

2002).

In addition, article 14.03(g) gives certain officers greater authority outside their jurisdictions

-the authority to arrest without a warrant a person who commits any offense within the officer’s

presence or view, with the exception of certain traffic offenses that are not relevant here. See id. art.

14.03(g) (“A peace officer listed in Subdivision (1)’(2)’ (3)’ (4)’ or (5)’ Article 2.12, who is licensed

under Chapter 415, Government Code [now chapter 1701 of the Occupations Code], and is outside

of the officer’s jurisdiction may arrest without a warrant a person who commits any offense within

the officer’s presence or view, except that an officer who is outside the officer’s jurisdiction may

arrest a person for a violation of Subtitle C, Title 7, Transportation Code, only if the officer is listed

in Subdivision (4)’ Article 2.12.“) (footnote omitted). The officers granted this additional authority

The Honorable Jeri Yenne - Page 6 (JC-0466)

by article 14.03(g) include sheriffs and constables (and their deputies and reserve deputies) and

municipal marshals and police officers (and reserve municipal police officers) who hold a permanent

peace officer license issued under chapter 1701 of the Occupations Code; rangers and officers

commissioned by the Department of Public Safety; and investigators of the district attorneys’,

criminal district attorneys’, and county attorneys’ offices. See id. art. 2.12(l)-(5) (Vernon Supp.

2002).

These provisions have been construed to authorize officers to make arrests outside their

jurisdictions but not to make investigative detentions. See Yeager, 23 S.W.3d at 572 (“We do not

believe that article 14.03 itself grants a peace officer the right to conduct an investigative detention

outside of her jurisdiction.“). An officer who is outside his or her jurisdiction must have probable

cause to make an arrest under article 14.03. See id. at 568 (“an officer must have probable cause to

arrest before he can detain a citizen under article 14.03 when outside ofhis geographic jurisdiction”).

In addition, Texas courts recognize the common law “hot pursuit” doctrine. Under this

principle, Texas peace officers who are drawn outside of their jurisdiction into another Texas

jurisdiction while in “hot pursuit” of a fleeing suspect do not lose their authority to detain and arrest

the suspect. See id. at 575 (citing Preston v. State, 700 S.W.2d 227,229 (Tex. Crim. App. 1985);

Duenez v. State, 735 S.W.2d 563, 565 (Tex. App.-Houston [lst Dist.] 1987, pet. ref d)). The test

for hot pursuit “focuses on the imrnediate and continuous nature of the pursuit, and it applies to

situations involving a continuous pursuit where there is no break in the police effort to apprehend

or in the subject’s effort to escape.” Id.; see also TEX. CODECRIM.PROC.ANN. art. 14.05 1 (Vernon

Supp. 2002) (“A peace officer commissioned and authorized by another state to make arrests for

felonies who is in fresh pursuit of a person for the purpose of arresting that person for a felony may

continue the pursuit into this state and arrest the person.“). The authority of a Texas peace officer

to make an arrest after pursuing a felon from the state into another jurisdiction will depend upon the

law of that jurisdiction. See, e.g., Jimenez v. State, 750 S.W.2d 798,803 (Tex. App.-El Paso 1988,

pet. ref d) (citing Minor v. State, 219 S.W.2d 467,469 (Tex. Crim. App. 1949)).

With these provisions in mind, we address your questions about the authority of peace

officers working as off-duty security guards on casino boats within the territorial waters of the state.

Because the criminal jurisdiction of the State of Texas and its coastal counties extends to the three

marine league line, a Texas peace officer has the same authority on the state’s territorial waters that

she or he has on land within the state, provided that there is no conflict with federal law or the rights

of foreign nations. The extent of that authority at any particular location on the state’s territorial

waters will depend upon the type of peace officer and whether he or she is within his or her

jurisdiction.

First, you ask when a peace officer who is outside his jurisdiction may arrest without a

warrant someone who commits within his presence an offense that is not a felony, breach of the

peace, or an offense under section 49.02 of the Penal Code. See Request Letter, supra note 1, at 2

The Honorable Jeri Yenne - Page 7 (JC-0466)

(question 7). Again, under article 14.03(g) of the Code of Criminal Procedure, certain officers

(including any sheriff, constable or municipal marshal or police officer) outside of their jurisdiction

may arrest without a warrant a person who commits any (non-traffic related) offense within the

officer’s presence or view. See TEX. CODE CRIM. PROC. ANN. art. 14.03(g) (Vernon Supp. 2002).

Other officers are limited to making warrantless arrests outside theirjurisdictions only as specifically

authorized by other provisions in chapter 14, such as article 14.01(a) and article 14.03(d), which

authorize warrantless arrests only for specific offenses, or as authorized by the con-u-non-law doctrine

of hot pursuit.

In a related question, you ask, “What law enforcement entity has jurisdiction outside the

boundaries of the county but within the boundaries of the state, i.e. the territorial waters of Texas?”

Request Letter, supra note 1, at 3 (question 8). You appear to be concerned that there may be some

area of the state’s territorial waters outside the territory of any county. See id. at 3’4. Because the

coastal counties’ boundaries extend to the three marine league line that is also the state’s seaward

boundary in the Gulf of Mexico, see TEX. NAT. RES. CODE ANN. $4 11.012(a), .013(a) (Vernon

2001)’ any point within the state’s territorial waters will also be within a coastal county. As on land,

county, state, and federal law enforcement authorities exercise concurrent criminal jurisdiction over

the state’s territorial waters. See, e.g., 14 U.S.C. 8 89(a) (1994) (“The Coast Guard may make

inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas and waters

over which the United States has jurisdiction, for the prevention, detection, and suppression of

violations of laws of the United States.“); United States v. Collins, 523 F. Supp. 239 (S.D. Fla.

198 1), afrd, 667 F.2d 97 (11 th Cir. 1982) (holding that U. S. Coast Guard and Florida Marine Patrol

exercise concurrent jurisdiction within the State of Florida’s territorial waters).

You also ask which law enforcement agency would have jurisdiction over an arrest made

under section 14.03. See Request Letter, supra note 1, at 2 (question 7). Again, section 14.03(g)

authorizes certain peace officers to make arrests anywhere in the state. It specifically requires the

arresting officer to “as soon as practicable after making the arrest notify a law enforcement agency

having jurisdiction where the arrest was made. The law enforcement agency shall then take custody

of the person committing the offense and take the person before a magistrate in compliance with

Article 14.06.” TEX. CODECRIM. PROC.ANN. art. 14.03(g) (Vernon Supp. 2002). Section 14.03(d)

contains a similar requirement. See id. art. 14.03(d); see also id. art. 14.06(a) (providing that an

officer making an arrest without a warrant take the person “before some magistrate of the county

where the arrest was made” or “if necessary” to more promptly inform the person of his or her rights

“before a magistrate of a county bordering the county in which the arrest was made”). Thus, an

officer outside his or her territorial jurisdiction and within the state’s territorial waters who arrests

a person under the authority of 14.03(g) would transfer custody of the person to the “law

enforcement agency having jurisdiction where the arrest was made.” Id. art. 14.03(g). Again, the

Land Commissioner is charged with platting sea boundaries between the coastal counties under

section 3 1.063 of the Natural Resources Code.

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You also ask if the answers to any of these questions would change “if the peace officer is

engaged in off-duty status for the casino boat and not under the supervisory control of any law

enforcement agency.” Request Letter, supra note 1, at 3 (question 10). They would not. Numerous

court decisions hold that a Texas peace officer remains a peace officer twenty-four hours a day and

possesses the full powers of a peace officer in the presence of criminal activity. See, e.g., Wood v.

State, 486 S.W.2d 771 (Tex. Crim. App. 1972) (“It is the law in this state that a police officer’s

‘off-duty’ status is not a limitation upon the discharge of police authority in the presence of criminal

activity.“); Simms v. State, 3 19 S.W.2d 717 (Tex. Crim. App. 1958); City of Dallas v. Half Price

Books, Records, Magazines, Inc., 883 S.W.2d 374, 377 (Tex. App.-Dallas 1994, no writ) (“An

off-duty police officer who observes a crime immediately becomes an on-duty police officer.“)

(citing Hafdahl v. State, 805 S.W.2d 396,401 (Tex. Crim. App. 1990)); see also Tex. Att’y Gen. Op.

No. M-140 (1984) (p eace officer employed in a private capacity was acting as a peace officer when

he apprehended suspect). Thus, an off-duty peace officer engaged as a security guard on a casino

boat who observes a crime becomes an on-duty police officer in the eyes of the law. As we have

noted, however, a peace officer’s power to act may be more limited outside the boundaries of his or

her geographical jurisdiction than within them. See discussion supra pp. 4-6.

With respect to the authority of a peace officer working off-duty as a security guard, you also

ask if such an officer may “wear his uniform and badge as a symbol of authority when [] outside his

jurisdiction” in the state. See Request Letter, supra note 1, at 2 (question 3). We are not aware of

any statute precluding a properly commissioned peace officer from wearing his or her uniform and

badge while working off-duty outside his jurisdiction. But see TEX. PEN. CODE ANN. $ 37.12

(Vernon Supp. 2002) (false identification as a peace officer). We suggest, however, that a peace

officer consult his or her employer’s regulations regarding officers’ off-duty employment. See, e.g.,

TEX. GOV’T CODE ANN. 8 411.0078(c) (Vernon 1998) (providing that Texas Department of Public

Safety shall adopt reasonable regulations regarding types of off-duty law enforcement services for

which officer commissioned by department may wear department uniform).

B. Peace Officers’ Authority Beyond the State of Texas’ Territorial Waters

Next, we address the authority of Texas peace officers outside the state’s territorial waters.

You ask, among other things, if “a peace officer maintain[s] his status as a peace officer when

outside the jurisdiction of the state/nation”; whether a peace officer may make a lawful arrest on the

high seas; and, more generally, “What is a peace officer’s statutory authority outside the jurisdiction

of the state.” Request Letter, supra note 1, at 3 (questions 1’2, 5). As we will explain, we agree

with your assessment that once a boat leaves Texas’ territorial waters, peace officers of this state

have no authority to act under Texas law. See id. at 3.

The United States exerts special maritime criminal jurisdiction over United States vessels

and, in some cases, vessels of other nations on the high seas outside its territorial jurisdiction, see

18 U.S.C. 5 7(l), (8) (1994) (extending special maritime jurisdiction “[t]o the extent permitted by

The Honorable Jeri Yenne - Page 9 (JC-0466)

international law, [over] any foreign vessel during a voyage having a scheduled departure from or

arrival in the United States with respect to an offense committed by or against a national of the

United States”), as does the State of Florida, see FLA. STAT. ANN. 8 9 10.006 (West 2001) (extending

special maritime criminal jurisdiction of the State of Florida to certain acts on board a ship outside

the state); Stepansky, 761 So. 2d 1027 (upholding FLA. STAT. ANN. 5 910.006 against claims that

state assertion of jurisdiction over crime that occurred on the high seas violated Supremacy Clause

of the United States Constitution). By contrast, the State of Texas has exerted no such special

maritime criminal jurisdiction and, as a general matter, the Penal Code and the Code of Criminal

Procedure apply only within the state. Chapter 14 of the Code of Criminal Procedure, for example,

authorizes Texas peace officers to make warrantless arrests only within the state. C$ United States

v. Hernandez, 715 F.2d 548’550-5 1 (11 th Cir. 1983)’ cert. denied, 465 U.S. 1009 (1984) (holding

that Florida law authorizing warrantless arrests “can only be applied to acts that occur within the

boundaries of the State of Florida, which with regard to the west coast of Florida, extends three

marine leagues or approximately nine geographical miles seaward of the Gulf of Mexico coastline”);

Tex. Atty. Gen. Op. No. DM-77 (1992) (“Since the authority of a sheriff to investigate crime is

generally limited to his county, it is clear that he can exercise no such authority outside the State of

Texas.“). Thus, once a casino boat sails beyond the state’s seaward boundary, any authority an

officer may have to keep the peace and detain passengers would not be based on the law of the State

of Texas.

You ask, “if the officer cannot arrest the individual, can they be detained, [and] if so by

whom, and to what extent can an individual be held until the ship re-enters the State or docks at a

port within the county ?” Request Letter, supra note 1, at 2 (question 7). As discussed above, see

supra p. 3, the criminal jurisdiction of the United States extends beyond the State of Texas’ seaward

boundary. See 18 U.S.C. 5 7 (1994) (special maritime criminal jurisdiction of the United States);

Pub. L. No. 104-132’8 901(a) (1996)’ reprinted in 18 U.S.C. 8 7, Notes (Supp. V 1999) (extending

the United States’ seaward boundary for purposes of criminal jurisdiction to twelve nautical miles

from the coast). Within the jurisdiction of the United States, federal law may authorize a Texas

peace officer to act. For example, federal common law may authorize a peace officer to make a

citizen’s arrest for a felony committed within his or her view. See Hernandez, 715 F.2d at 550

(applying federal common law of citizen’s arrest to uphold Florida marine officers’ arrest beyond

that state’s territorial waters); see also 18 U.S.C. 8 13 (1994) (’ incorporating state criminal law for

areas within federal jurisdiction); id. $0 3041(1994) (“F or any offense against the United States, the

offender may, by any. . . chancellor, judge of a supreme or superior court, chief or first judge of the

common pleas, mayor of a city, justice of the peace, or other magistrate, of any state where the

offender may be found . . . be arrested . . . .”); 3238 (venue for trial of offenses begun or committed

upon the high seas). Federal authorities may be able to provide more specific counsel regarding the

extent to which federal law might empower state peace officers to make arrests and keep order

within the jurisdiction of the United States but outside the jurisdiction of the State of Texas.

The Honorable Jeri Yenne - Page 10 (JC-0466)

On the high seas, beyond the jurisdiction of both the State of Texas and the United States,

the law of the ship’s flag state3 and international law may be relevant to the authority to keep order.

See supra note 3, RESTATEMENT OF FOREIGN RELATIONS LAW: THE LAW OF THE SEA 5 502(2)

(Rights and Duties of Flag State) (“The flag state may exercise jurisdiction to prescribe, to

adjudicate, and to enforce, with respect to the ship or any conduct that takes place on the ship.“).

For example, an officer may have authority to detain passengers as an agent of the ship’s captain.

As you have not asked about any particular ship or situation, we will not speculate on that authority

here.

We note, however, the State of Texas has extended its criminal jurisdiction in limited

circumstances to conduct that occurs outside the state, if, for example, the conduct is an element of

an offense that occurs inside the state or it constitutes an attempt to commit an offense inside the

state. See TEX. PEN. CODEANN. 5 1.04(a)-(c) (V emon 1994); see also TEX. CODEGRIM.PROC. ANN.

art. 13.01 (Vernon 1977) (governing venue for offenses committed wholly or partly outside the

state). Thus, the State of Texas may have jurisdiction to prosecute a person for acts committed on

a casino boat while it is sailing beyond the state’s territorial waters, even though a Texas peace

officer does not have the authority to arrest the person at the time the acts are committed. See, e.g.,

Lyons v. State, 711 So. 2d 71 (Fla. App. 1998) (Florida had jurisdiction over theft that occurred on

casino ship outside state’s territorial waters because intent element of offense occurred within state;

by boarding casino ship with cheating device, defendant boarded ship with intent to steal from

casino). In certain circumstances, a peace officer, who does not have the authority to arrest a person

under Texas law at the time an offense is committed beyond the state’s territorial jurisdiction, may

be authorized to arrest that person under the laws of the state once the casino boat reaches the state’s

territorial waters. See, e.g., TEX. CODE GRIM. PROC. ANN. art. 14.04 (Vernon 1977) (“Where it is

shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a

felony has been committed, and that the offender is about to escape, so that there is no time to

procure a warrant, such peace officer may, without warrant, pursue and arrest the accused.“); id. ch.

15 (Vernon 1977 & Supp. 2002) (Arrest under Warrant); id. art. 15.06 (Vernon Supp. 2002) (warrant

of arrest “shall extend to any part of the State”).

You ask if a peace officer is “entitled to qualified immunity when he is outside the

jurisdiction of the state/nation.” Request Letter, supra note 1, at 2 (question 6). Your conclusion

that a Texas peace officer would not be entitled to qualified immunity as a peace officer under Texas

law for acts committed on the high seas outside the state’s jurisdiction, see id. at 4, is consistent with

our analysis that Texas law does not authorize a Texas peace officer to act beyond the state’s

‘Under international law, “[slhips have the nationality of the State whose flag they are entitled to fly.”

Convention on the High Seas, Apr. 29, 1958, art. 5(l), 13 U.S.T. 2312, T.I.A.S. No. 5200; see also, e.g., RESTATEMENT

(THIRD) OFTHEFOREIGNRELATIONSLAW OF THE UNITED STATES: THE LAW OFTHJZSEA 6 501 (1986) (Nationality of Ships)

(“A ship has the nationality of the state that registered it and authorized it to fly the state’s flag . . . .“) [hereinafter

RESTATEMENTOF FOREIGNRELATIONSLAW].

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seaward boundary. To establish qualified immunity, an officer must show that the disputed incident

occurred while he was (1) performing discretionary duties, (2) in good faith, and (3) was acting

within the scope of his authority. See City of Lancaster v. Chambers, 883 S.W.2d 650,653 (Tex.

1994). While a peace officer may be able to establish that he or she was acting within the scope of

his or her official duties while performing acts as an off-duty security guard, see discussion

regarding authority of off-duty peace officer supra p. 8, an officer would have great difficulty

establishing that he or she was acting within the scope of his or her official authority on the high seas

beyond the jurisdiction of the State of Texas. What immunity, if any, might be available to a peace

officer in a suit for acts committed on the high seas would depend upon the factual circumstances

and choice of law issues involving federal law, international law, and the law of the ship’s flag state

that are beyond the scope of this opinion. See, e.g., Saucier v. Players Lake Charles, L.L. C., 75 1 So.

2d 3 12 (La. App. 1999) (holding federal maritime law applicable to false arrest claim arising from

incident on gaming boat).

With respect to the high seas, you also ask about the authority of a peace officer working off-

duty to carry a weapon “in a place where alcoholic beverages are sold if (1) that boat is outside the

State? (2) that boat is outside the country ?” Request Letter, supra note 1, at 2 (question 4). The

Penal Code generally prohibits the carrying of weapons within the state, see TEX. PEN. CODEANN.

$5 46.02, .03 (V emon Supp. 2002), and provides an enhanced penalty for carrying a weapon “on any

premises licensed or issued a permit by this state for the sale of alcoholic beverages,” id. 0 46.02(c),

but under section 46.15 these provisions do not prohibit “a peace officer from carrying a weapon in

this state, regardless of whether the officer is engaged in the actual discharge of the officer’s duties

while carrying the weapon,” id. 8 46.15(a)( 1) (emphasis added). We assume that, because the casino

boats serve alcohol within the state, the casino boats have obtained alcoholic beverage permits issued

by the State of Texas that apply to all or some of the vessels’ premises.

Texas peace officers are affirmatively authorized to carry weapons on the licensed premises

within the state. See id. You appear concerned that the premises at issue here move outside the

state’s jurisdiction, and perhaps beyond the ambit of the section 46.15 exception for peace officers.

As the Penal Code’s prohibition against carrying weapons applies only within the state, however,

see id. 9 1.03 (Vernon 1994) (establishing state’s territorial jurisdiction for Penal Code offenses),

it does not apply to a peace officer carrying a weapon on a ship outside the state’s territorial waters,

even on premises licensed by the state.

Also relevant is a federal statute prohibiting the carrying of a weapon on a vessel “registered,

enrolled, or licensed under the laws of the United States.” 18 U.S.C. 5 2277(a) (1994). This

prohibition does not apply to state peace officers “while acting in the performance of their duties,

who are authorized by law or by rules or regulations to own or possess any such weapon.” Id.

5 2277(b). Nor does it apply if the person “previously obtain[ed] the permission of the owner or the

master of such vessel.” Id. 5 2277(a).

The Honorable Jeri Yenne - Page 12 (JC-0466)

In sum, Texas law does not prohibit a peace officer from carrying a weapon in licensed

premises on a ship beyond the state’s territorial waters and does not apply to an officer’s authority

to carry a weapon outside the state’s jurisdiction. Federal law permits a peace officer to carry a

weapon on a United States vessel within the state’s territorial waters on the basis of his or her status

as a peace officer of the State of Texas and on the seas outside the state’s territorial waters with the

consent of the ship’s captain. See id. The authority of a peace officer to carry a weapon on a vessel

of another nation outside the State of Texas’ jurisdiction may depend upon international law and the

law of the vessel’s flag state. See supra note 3, RESTATEMENT OF FOREIGNRELATIONS LAW: THE

LAW OF THE SEA 5 8 501, 502. A peace officer should also consult his or her employer regarding

the employer’s policies governing off-duty employment.

You are also concerned about the authority of a Texas peace officer to wear his or her

uniform and badge outside the state and outside the country. See Request Letter, supra note 1, at

2 (question 3). We are not aware of any state or federal law prohibiting a peace officer from wearing

his or her uniform and badge on the seas outside the state or outside the United States. The authority

of a peace officer to wear a uniform and badge on a vessel of another nation outside the state’s

jurisdiction may depend upon international law and the law of the vessel’s flag state. See supra note

3, RESTATEMENT OF FOREIGN RELATIONS LAW: THE LAW OFTHE SEA §§ 501,502. Again, we also

suggest that a peace officer consult his or her employer regarding the employer’s policies governing

off-duty employment.

C. Relevance of Ship’s Registry in the United States

Finally, you ask if “the answer to any of these questions [would] change if the ship is

registered in the United States.” Request Letter, supra note 1, at 3 (question 9). This question raises

the issue of whether the affirmative defense to Texas gambling offenses provided in section 47.09

of the Penal Code applies to vessels that are not registered in the United States. See TEX. PEN. CODE

ANN. 8 47.10 (Vernon 1994) (“If 18 U.S.C. Section 1082 is repealed, the affirmative defenses

provided by Section 47.09(b) apply only if the vessel is documented under the laws of the United

States.“). If the defense does not apply to vessels that are not registered in the United States, then

vessels registered in other countries would not be permitted to conduct gambling trips out of your

county. You do not ask this question, however, and we do not resolve it here.

As you do not provide information regarding the registry of the ships at issue, we address

your final question only in very general terms. With the caveat regarding Penal Code section 47.10,

we do not believe that the nationality of the vessel is significant to the state law issues we have

considered.

As we have said, the State of Texas has concurrent criminal jurisdiction over acts committed

within its territorial waters, provided that there is no conflict with federal law or the rights of foreign

nations. See id. 8 1.04(d); TEX. NAT. RES. CODEANN. 8 11.012(b) (Vernon 2001); Skiriotes, 313

The Honorable Jeri Yenne - Page 13 (JC-0466)

U.S. 69; Stepansky, 761 So. 2d at 1033. As a matter of general international law, a foreign ship that

sails into the territorial waters of a coastal state is subject to local criminal jurisdiction, see supra

note 3, RESTATEMENT OF FOREIGN RELATIONSLAW: THE LAW OFTHE SEA 8 502 cmt. d (Rights and

Duties of Flag State) (“The flag state has jurisdiction to prescribe with respect to any activity aboard

the ship [], but such jurisdiction is not exclusive when the ship is in a port or internal waters of

another state. The flag state’s jurisdiction also overlaps in some respects with the jurisdiction of the

coastal state when the ship is in the territorial sea.“); see also id. 8 5 13 cmt. e (Passage Through

Territorial Sea, Straits, and Archipelagic Waters) (no innocent right of passage where vessel

“disturb[s] the peace of the coastal state or the good order of the territorial sea”; assertion of local

criminal jurisdiction over foreign vessel appropriate where the assistance of local authorities has

been requested by the captain of the ship); Exparte Ponzi, 290 S.W. 170, 172 (Tex. Crim. App.

1926) (when “a merchant vessel of one country enters the ports of another for the purposes of trade,

it subjects itself to the law of the place to which it goes, unless by treaty or otherwise the two

countries have come to some different understanding or agreement. As the owner has voluntarily

taken his vessel for his own private purposes to a place within the dominion of a government other

than his own, and from which he seeks protection during his stay, he owes that government such

allegiance for the time being as is due for the protection to which he becomes entitled.“); Tex. Att’y

Gen. Op. No. V-229 (1947) at 4-5 (same). Furthermore, the casino boats at issue have hired Texas

peace officers to act as security guards during gambling cruises, invoking the protection of Texas

law. Presumably the majority of the boats’ gambling patrons are United States citizens. In these

circumstances, we do not believe that the nationality of the ship would affect Texas peace officers’

authority within the state’s territorial waters.

With respect to the effect of the ship’s nationality outside the state’s territorial waters, the

authority of Texas peace officers to make arrests under state law does not extend beyond the state’s

seaward boundary. As we have said, the law of the ship’s flag state may be relevant to a

Texas peace officer’s authority to keep order on the ship and to detain passengers. The fact that

a ship is registered in the United States may be relevant to federal jurisdiction, see, e.g., 18 U.S.C.

8 7 (1994), but would not operate to extend a Texas peace officer’s authority under state law beyond

the state’s territorial waters. We emphasize, however, that a Texas peace officer may have the

authority to keep the peace and detain passengers on the high seas under other law and, under certain

circumstances, may have authority to arrest a person under state law once the ship sails back into

the state’s territorial waters. See discussion supra pp. 9-10. In addition, federal law may authorize

a peace officer to make an arrest on a United States vessel under certain circumstances. See

discussion supra p. 9.

The Honorable Jeri Yenne - Page 14 (JC-0466)

SUMMARY

The seaward boundary of the State of Texas and its coastal

counties extends three marine leagues into the Gulf of Mexico. The

state and its coastal counties may exercise criminal jurisdiction on the

state’s territorial waters, provided that there is no conflict with federal

law or the rights of foreign nations. Texas peace officers acting as

security guards on casino boats have the authority to make arrests

under state law within the state’s territorial waters. The extent of that

authority depends upon the type of peace officer and whether he or

she is within his or her jurisdiction.

Once a casino boat sails beyond the state’s seaward boundary,

a Texas peace officer no longer has the authority to make arrests

under the law of the State of Texas. Within the jurisdiction of the

United States, federal law may authorize a peace officer to make an

arrest under certain circumstances. On the high seas, beyond the

jurisdiction of both the State of Texas and the United States, the law

of the ship’s flag state and international law may be relevant to a

Texas peace officer’s authority to keep order on the ship and to detain

passengers.

Yo rs ve trul ,

4JlT

JO&N CORNYN

Attorney General of Texas

HOWARD G. BALDWIN, JR.

First Assistant Attorney General

NANCY FULLER

Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY

Chair, Opinion Committee

Mary R. Crouter

Assistant Attorney General, Opinion Committee