# Angel v. State

> Court of Criminal Appeals of Texas · October 7, 1987 · 740 S.W.2d 727

URL: https://www.frixlaw.com/law-library/cases/9664785

## Case

- **Full name:** Silas Owendoff ANGEL, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** October 7, 1987
- **Citations:** 740 S.W.2d 727; 1987 Tex. Crim. App. LEXIS 659; 1987 WL 905
- **Precedential status:** Published
- **Opinion:** Dissent by Clinton
- **Judges:** Campbell, McCormick, Clinton, Miller, White, Teague, Duncan, Onion, Davis
- **Cited by:** 89 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by State v. Kurtz, 2004 Tex. Crim. App. LEXIS 1752 (2004).
- Negative treatments: 6
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9664785

## How later opinions describe it (automated extraction)

- holding that V.T.C.S. articles 998, 999, now sections 341.001(e)(1) and 341.021(e) of the Local Government Code, give city police officers and city marshalls county-wide jurisdiction for warrantless arrests
- holding that jurisdiction is a restriction on the geographic scope of a city police officer’s power, rights, and authority

## Opinion text

CLINTON, Judge,
dissenting.
Whether the construction given Articles 998 and 999, V.A.C.S., by the majority is correct is a moot point until it is determined that they are applicable to a Tomball police officer. That determination, in turn, depends upon the legal authority under which Tomball was organized and exists. But on that point the record is silent.
All this record shows is that the arrest of appellant was made by a “Police Officer with the City of Tomball,” outside city limits. Nothing else informs us of the corporate status of Tomball and of any authority it has granted to its police officers.
By their very context and specific terms, Articles 998 and 999 are not applicable to every policeman and marshal in the State, and the broad assertion that “the Legislature has endowed” each such peace officer with the same jurisdiction, right, power and authority as a sheriff in his capacity as a conservator of the peace is not justified by the superficial examination of the matter made below, Angel v. State, 694 S.W.2d 164, 170 (Tex.App.-Houston [1st] 1985), nor by the majority opinion of this Court. In an appendix to this opinion there is a comprehensive survey of developing law regarding cities, towns and villages, taken primarily from Gammel’s Laws of Texas (Gammel’s). It demonstrates that all their peace officers do not have the same jurisdiction, rights, power and authority and that identifying the jurisdiction, rights, power and authority of a given peace officer requires more study than reading what is thought to be an applicable statute, and may depend on a showing of many relevant matters. Yet, just such analysis is required by Preston v. State, 700 S.W.2d 227 (Tex.Cr.App.1985). One must first find the particular source of a grant and then ascertain what was delegated. It is evident that in Newburn v. Durham, 88 Tex. 288 , 31 S.W. 195 (1895), perhaps because it was answering certified questions and was thus without any underlying facts, the Supreme Court was not sufficiently informed of facts implicating many provisions of law then extant, before coming to the conclusion upon which the majority now relies.
In the first place, when incorporated as a town Palestine provided for a “constable,” as they were then called. Acts 1871, 12th Leg., 1st Sess., Ch. 117, p. 203, § 18, at 205; 6 Gammel’s 1343. 1 There were certain amendments made in 1873, but Palestine remained a town. 7 Gammel’s 1171. Gammel lists no more amendments made through 1902, but since in 1893, B.A. Durham was a “town Marshal,” Newburn v. Durham, 10 Tex.Civ.App. 655 , 32 S.W. 112 (1895), we may assume that the mayor and aldermen decided to change the name of the office from constable to marshal, just as then article 534, R.C.S. 1879, had done. That is a small matter, however, because even under article 534, R.C.S. 1879 the marshal of a town had only “the same power within the town that constables [had] within their precincts.” See Appendix, note 7. Meanwhile, the Legislature had provided for incorporation of an existing city, along with officers including a city marshal. Appendix, p. 5; 8 Gammel’s 485, 494-495. B.A. Newburn was a town marshal, however. So in 1895, article 363, R.C.S. 1879 is not shown by the opinion to have any application to his office. Newburn v. Durham, supra, was thus wrongly decided, and the discussion of article 363 and its meaning is pure dicta.
The opinion in Newburn v. Durham is correct about the common law in one particular, viz: “Independent of statute, the *740 authority or jurisdiction of the marshal would not extend beyond the city limits.” Id., at 195. 2 Accord: Weeks v. State, 132 Tex.Cr.R. 524 , 106 S.W.2d 275 (1937); Minor v. State, 153 Tex.Cr.R. 242 , 219 S.W.2d 467, 470 (1949) (Hawkins dissenting). As shown in Appendix, for some forty years the people of Texas, first through the Congress of the Republic, then the Legislature of the State and in its cities, town and villages, uniformly accepted and implemented the common law. Not until 1895 did an appellate court suggest otherwise, and its decision has been cited only twice by judges of the Court: once in a leading opinion by a single judge and once by a dissenting judge — in the same case! — but not so much as alluded to by the third judge writing on rehearing. See Minor, supra.
In those circumstances to attach any significance to the fact “that the Legislature has met numerous times without amending Articles 998 or 999” to limit “jurisdiction” of city police officers to city limits is spurious. In 1895 a procedure for certifying questions to the Supreme Court was relatively new, having been included in an act to organize courts of civil appeals and to prescribe mode of procedure therein, Acts 1892, 22nd Leg., Ch. 15, p. 25, 31, § 35, 10 Gammel’s 395, amended the following year by Acts 1893, 23rd Leg., Ch. 76, p. 100, 10 Gammel’s 530. In providing for certification of “the very question to be decided” and that “during the pendency of the decision by the Supreme Court the cause in which the issue is raised shall be retained [by the court of civil appeals] for final adjudication in accordance with the decision of the Supreme Court upon the issue submitted,” the Legislature deemed the latter decision to be no more than the “law of the case.” That is precisely how the court of civil appeals treated the opinion of the Supreme Court on rehearing in Newburn v. Durham, 32 S.W., at 116 .
Not until 1899 did the Legislature express concern about the fact that “conflicts of opinions on questions of law are now occurring” with courts of civil appeals and attempt to remove such conflicts through the certification procedure, declaring that an opinion of the Supreme Court “shall be final and shall be the law of the question involved, until said opinion shall have been overturned by the said Supreme Court, or abrogated by legislative enactment, and the Courts of Civil Appeals shall be governed thereby.” Acts 1899, 26th Leg., Ch. 98, p. 170, 11 Gammel’s. Of course, there was no conflict of opinions certified to the Supreme Court in Newburn v. Durham, so the Legislature was not obliged to act; needless to say this Court is not included among those courts “governed thereby.”
The majority says that Article 998 and 999 combine to provide the statutory authority and jurisdiction, but it has made no visible effort to find any facts that show that they are applicable to Tomball; assuming they are, the majority finds it necessary to examine hypercritically and then overrule at least four decisions of the Court contrary to its construction of Article 999 in order to give vitality to an incorrect interpretation in Newburn v. Durham, supra.
To say that in Weeks v. State, 132 Tex.Cr.R. 524 , 106 S.W.2d 275 (1937), the Court “provided a gratuitous discussion” of jurisdiction of police officers is to misread the opinion. Cleburne police officers received a radio call to look for a red car going in a certain direction gn a particular street; upon spotting such a car they followed it and saw in it what they thought were several cartons of beer. They continued to follow the car beyond corporate limits and stopped it, searched it, found much whisky and beer, arrested appellant, seized the contraband and turned it over to the sheriff. Appellant objected to their testimony on several grounds, one of which was “that the arrest by said policemen beyond the corporate limits of said city and the search of her car was illegal. ” Id., 106 S.W.2d at 275 .
Addressing the issues thus raised the Court first pointed out an indisputable proposition, viz:
*741 “Under the common law a policeman’s authority is confined to the limits of the city unless such authority is extended by legislative act.”
Accord: Newbum v. Durham, supra. It then set out verbatim Articles 212 and 213, C.C.P. 1925, providing authority to arrest in prescribed circumstances, and a section of an article in the Texas Liquor Control Act, declaring it the duty of a peace officer who discovers a person in the act of unlawfully transporting liquor to seize the liquor. The Court found none of those articles authorized a city policeman, though a peace officer, to arrest without a warrant one transporting liquor, since unlawful transportation of liquor was no longer a felony nor an offense against the public peace, unless by virtue of the quoted section 44 of the liquor law; however, nothing therein conferred such authority, and except the Court by implication extended the meaning of that statute, “no such authority exists.”
“In view of articles 212 and 213, C.C.P., we must assume that the Legislature, when it enacted section 44 of Article 1 of the Texas Liquor Control Act, took cognizance of said articles which are a limitation upon the legal authority of peace officers. If the Legislature desired to extend the authority therein granted, they would have said so. Not having done so, the presumption prevails that they did not intend to do so, and, therefore, we would not be authorized by implication to extend it. Article 999, R.C.S. 1925, seems to limit the legal authority of peace officers to their own bailiwick. In considering the foregoing articles of the statute together and giving effect to each, it occurs to us that the policemen of the city of Cleburne exceeded their legal authority in making the arrest of the appellant without a warrant and in making the search beyond the corporate limits of said city. Therefore the testimony showing what the policemen found as a result of the search was inadmissible as evidence against her.”
Id., 106 S.W.2d at 276 .
It would later be said in Minor v. State, 153 Tex.Cr.R. 242 , 219 S.W.2d 467 (1949), that this opinion “makes the statement that the authority to arrest terminated at the city’s boundary,” id., at 471. I have not found such statement, nor is that my reading of the opinion: having searched for and found no statutory authority for a peace officer to make a warrantless arrest for unlawful transportation of liquor, the Court was unwilling to extend section 44 to authorize that; thus, the warrantless arrest was in excess of authority. And so was the search because it was made beyond the city limits. In any event, the Court was ruling directly on one contention made by Weeks; its statements were far from “gratuitous.”
Moreover, the Court should not be faulted for failing “[to] discuss the precedential value of Newbum, supra,” since at that time the decision had not even been cited by any other appellate court in this State, and the Court was not governed by it anyway. And just because the opinion fails to discuss “the effect of the ‘power, authority and jurisdiction clause’ in Article 999, supra,” does not mean that the judges failed to consider it. Indeed, the opinion makes manifest they did.
Although the majority skips over it, next in order of delivery is Irwin v. State, 147 Tex.Cr.R. 6 , 177 S.W.2d 970 (1944). Search warrants addressed to “Sheriff or any Constable of Harris County” were executed at the home and automobile of Irwin located outside the City of Houston by police officers of the City of Houston, including two who claimed to be acting under authority of a commission as a special deputy sheriff of Harris County. They seized materials used in operating a policy game. The return was made in the name of the Chief of Police of the City of Houston by two deputy policemen of the City of Houston. Objections to admitting testimony of searches and seizure outside the city included that the officers were not authorized by law to make them. Irwin contended that the two officers holding special commissions could not constitutionally be both policemen of the City of Houston and special deputies sheriff. The State did not contend Houston police officers were authorized to act outside the city. Rather, it asserted that *742 if they were not deputies sheriff de jure, that were such officers de facto and as such their acts were binding on Irwin and the public and were not subject to collateral attack. Id., 177 S.W.2d at 971-972 .
Addressing the constitutional issue, the Court found that “the named officers could not at the same time be both policemen and deputies sheriff de jure or de facto.” Id., at 973. The significance of the latter status was explained by the Court, viz:
“In order for the searches to be legal, Officers Eubanks and Martindale, or either of them, were required to be deputies sheriff, because they could not have executed the warrants or made the searches thereunder, as policemen, outside the limits of the City of Houston, their territorial jurisdiction as policemen being restricted to the confines of that city. [Citing inter alia Weeks v. State, supra].”
Id., at 973. Finding they were not deputies sheriff de facto and that “their purported acts as such were without authority of law,” the Court concluded that the search of Irwin’s residence was illegal. Id., at 974.
As to the search of his automobile, while, the Court did not discuss it under the purported warrant because it found that a search of an automobile for gambling instruments was permissible without a warrant, it refused to uphold the search, viz:
“However, the search of the automobile in the instant case cannot be justified as being a search upon probable cause, because of the lack of territorial jurisdiction of the officers making the search, as we have heretofore pointed out. Henson v. State, 120 Tex.Cr.R. 176 , 49 S.W.2d 463 .”
Id., 177 S.W.2d at 975 .
The gambit used by the majority to attack holdings of both Weeks and Irwin is to show that in Minor v. State, 152 Tex.Cr.R. 242 , 219 S.W.2d 467 (1949), the Court “criticized part of its own holding in Weeks ” and since Irwin cited Weeks “the precedential value of Irwin must be questioned.” Majority opinion, at p. 735. 3 However, the Minor court never questions Irwin .
The holding of the lead opinion is not the “doctrine” laid down by the Supreme Court in Newman. Rather, it is founded in the doctrine of “hot pursuit.” See id., 219 S.W.2d at 469, 470 . The opinion itself sets out the question and later answers it, viz:
“The crucial point herein is, Did the arresting peace officers, being policemen, have authority to finally complete the arrest at a point where the fleeing parties had passed out of the city and over its boundary, or, in other words, does the ancient ecclesiastical doctrine of sanctuary apply to such actions on their part? [S.W. at 469]
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What we are holding herein is that where a police officer has the right to arrest without warrant for an offense committed within the confines of his city and initiates a pursuit of the malefactor, being in immediate pursuit, he can continue such pursuit, although such continuance leads him outside the corporate limits of the city, if necessary, his rights being the same as those of the sheriff in such event.
Therefore, we hold that the peace officer had the same power as the sheriff relative to his jurisdiction and could carry out his intended arrest of a person whom he was directly pursuing for an infraction of the law in such officer’s presence.”
*743 Id., at 470. 4 The concurring opinion could not “subscribe to the implication that a city policeman has authority equal to that of the sheriff co-extensive with the bounds of the county.” But Judge Beauchamp did agree that he has “a right to continue the pursuit regardless of county lines.... ” Still, he opined:
“The statute giving the policeman a right similar to that of the sheriff must be limited to the confines of the city boundary lines. He cannot go beyond the city limits to initiate an arrest.”
Id., at 470. In dissent, Presiding Judge Hawkins called attention to a general rule that peace officers have no “official power” to apprehend offenders beyond their venue, citing, e.g., Irwin , remained “doubtful” about “legality of an arrest consummated beyond the city limits,” and called on the Legislature to “clear up” the matter. Id., at 471.
Therefore, however the lead opinion regarded Newburn v. Durham is beside the point, for clearly the other two judges expressly disavowed its “doctrine.”
On rehearing Judge Beauchamp, who had concurred because the policemen had a right to make an arrest within the city and “pursued this right” to arrest outside the city, confronted a contention by Minor that the right of the policemen to arrest without a warrant terminated at the city limits, relying on Weeks, supra. The majority here correctly says that his opinion “criticized” a part of the Weeks holding, but what the majority sets out in its opinion at page 735, bracketed below, does not demonstrate the basis for and consequence of his criticism, viz:
“[The opinion (in Weeks)_ makes the statement that the authority to make the arrest terminated at the city’s boundary line. This general statement was not necessary to a decision of the case. We think it was an erroneous statement and should not be followed.] The officers never had a right to arrest Mrs. Weeks without a warrant within the city, under the information which led them to pursue her. The opinion should have so stated and it would necessarily have followed that they had no right to do so beyond the city limits.”
Id., at 471. While I believe its criticism is misplaced, see ante at p. 741, that treatment of Weeks clearly accepts the general proposition that territorial jurisdiction of city policemen is restricted to confines of his city; it goes on to explain that in order to make a valid warrantless arrest outside his city a policemen must have had a right to arrest for an offense committed within the city and then pursued the offender beyond limits of the city to effectuate an arrest. Indeed the exception, as they say, proves the rule.
Returning to the motion for rehearing, Judge Beauchamp notes that in discussing article 37, C.C.P. (now 2.13), the motion called attention to the fact that it makes it “the duty of a policeman to ‘preserve the peace within his jurisdiction.’ ” He points out that “is in accord with the statement made in the original opinion and the concurring opinion,” and reiterates the idea that because they had the right to arrest Minor within the city they also were entitled to pursue him beyond city limits “to do that thing they are charged with the duty of doing.” Id., 471-472. Again, the majority on rehearing at this point does not rely on Newman, but the opinion does resort to Article 999, viz:
“Article 999 of the Revised Civil Statutes, in defining the territorial jurisdiction of a city marshal, may be further relied upon as authority for the policemen in the instant cause, because appellant was ‘offending against the peace of the city.’ As distinguished from the Weeks case, the act of the police in beginning the pursuit was lawful.... We cannot agree with the contention in *744 the motion that no part of the arrest took place within the city. The pursuit, continued beyond the bounds of the city, resulted in taking appellant into custody and all of their acts from the time the pursuit began until they had custody of their prisoner constitute part and parcel of the act of arrest. It did begin in the city and extended beyond it.”
Id., at 472. Whether one agrees with that stated rationale is irrelevant. The points are that on rehearing the Court never mentioned the language in Article 999 that the majority here insists gives a city policeman the same territorial jurisdiction as a sheriff, and the Court did not rely on Newburn v. Durham.
The plain implication of the conclusions reached is that authority of a city policeman to make a warrantless arrest of one “offending against the peace of the city” is limited to the territorial boundaries of his city except when that one flees beyond the limits of the city to avoid arrest. Minor merely extends the “hot pursuit” doctrine into areas outside city limits.
The majority also applies what it still calls the “rejection” of Weeks to question the precedential value of Buse v. State, 435 S.W.2d 530 (Tex.Cr.App.1968), in that it relied on Irwin : “However, given the earlier rejection of Weeks , which was the foundation of Irwin , the precedential value of Buse must be questioned.” Majority opinion, p. 736. As already indicated, to say that Weeks was “rejected” is not a fair interpretation of the opinion on rehearing in Minor. Nor is Weeks the “foundation” of Irwin . While the majority opinion is disdainful of early decisions of the Court, e.g., those cited in note 20 of its opinion, back then the starting point in nearly all such situations was the common law, and the authority usually cited is 2 Ruling Case Law 469, § 27. See Henson v. State, 120 Tex.Cr.R. 176 , 49 S.W.2d 463 (1932); Weeks v. State, supra; Irwin v. State, supra, 177 S.W.2d at 973 ; Minor v. State, supra, 219 S.W.2d at 470 (Hawkins dissenting). Some of the cases dealt with sheriffs, and the majority dismisses them on that account. However, the common law rule applied equally to any “public officer appointed as a conservator of the peace for a particular county or municipality” to deny him “official power to apprehend offenders beyond the boundaries of the county or district for which he has been appointed.” Henson, 49 S.W.2d at 465 . Thus the “foundation” of practically everything written on this matter is the common law, and the judicial inquiry is whether the common law has been modified and extended by statute. Henson, Weeks, et al.
By the time Buse v. State, supra, came before the Court the precedents had more or less incorporated and applied the common law, making its decisions themselves authoritative. In Buse , the Court had only to review them and follow pertinent authority. That is precisely what it did: Irwin was followed and Minor was distinguished. Buse, 435 S.W.2d at 532 .
Finally, the majority would have it that in Weeks and other decisions surveyed the Court “did not undertake a detailed examination of the source of a city police officer’s territorial jurisdiction,” so. “their legal underpinnings are weak.” But the main underpinning is common law, and the rule has always been stated in a single sentence. Newburn, Weeks, Irwin and Minor (Hawkins dissenting). The only other underpinning possible would be a legislative act extending authority, power, right or jurisdiction of a police officer beyond limits of his city. Weeks looked at relevant legislative acts, including Article 999, and said, “We find no extension here.” 5
The opinion in Irwin cited, e.g., Weeks for the proposition that for purposes of executing search warrants and . making *745 searches outside the limits of the City of Houston, “territorial jurisdiction as policemen [was] restricted to the confines of that city.” Irwin, 177 S.W.2d at 973 . Commissioner Davidson, having been the sole representative of the State in that cause, surely well understood that Weeks so held with respect to searches without a warrant; when the Judges examined his opinion and the Court unanimously approved it, Presiding Judge Hawkins, having been the third Judge in Weeks , certainly would be expected to approve it — as did Judges Harry N. Graves and Tom L. Beauchamp. In Minor, through separate opinions Judge Graves, Judge Beauchamp and Presiding Judge Hawkins again probed all germane aspects of the problem, including Article 999, New-bum v. Durham, “hot pursuit,” the general rule stated in Ruling Case Law, prior decisions of the Court in Henson, Weeks and Irwin , all supra; a majority of the Court ultimately adopted a “hot pursuit” rule rather than “the original construction of Article 999 by the Supreme Court [in Newbum ] in 1895.” By 1968 the Court had five Judges, none of whom had participated in the prior decisions; in Buse a unanimous Court, including Presiding Judge Onion, former Presiding Judge K.K. Woodley, the late W.A. Morrison, and the late Leon Douglas, followed Irwin to hold that “the arrest and search of appellant [in the city of Bellaire] by [two Houston] city officers outside the jurisdictional limits of the city of Houston was unlawful.” Id., 435 S.W.2d at 532 .
Given that decisions of the Court from Weeks to Buse represent more than thirty years of stare decisis, supported by hundreds of years of common law, the majority should provide more justification than merely saying a 1895 opinion of the Supreme Court in a civil case — one that has never been followed by the Court of Criminal Appeals or any other appellate court in this State — “remains persuasive.”
I dissent.
TEAGUE, J., joins.
APPENDIX
Early on towns and cities were incorporated by special acts of the Congress of the Republic of Texas, often several in a single enactment. The mayor, aldermen and principal officers, ordinarily including a marshal, were elected. Although certain duties were mandated, e.g., “from time to time to pass such rules and ordinances for the regulation of the police and preservation of order, within the corporation limits as may be necessary....,” essentially they were selfgoverning, admonished however that their rules and ordinances “shall not be contrary to the constitution and laws of this republic.” 1 See, e.g., Acts of June 5, 1837 and of December 29, 1837; 1 Gam-mers Laws of Texas (Gammel’s) 1298 and 1459, incorporating among others the city of Houston.
Then the Legislature began to incorporate a town or city by specific enactment, such as Acts 1846, 1st Leg. p. 285, 2 Gam-mel’s 1591, declaring the city of Austin “a body politic and corporate, by the name and title of the ‘Corporation of the City of Austin.’ ” Along with other officers, including a mayor and recorder to hold court, the marshal continued to be elected; the city council was given more particularized power and direction to pass by-laws and ordinances; the marshal and his deputies were enjoined “to act as police officers, to preserve the quiet of the city, and to inform the mayor or recorder of all breaches committed against city ordinances.” Id., §§ 4, 7 and 19.
In time, charters of incorporation “continued to grow in length and the powers of the city governing board were spelled out in greater detail,” Interpretive Commentary following Article XI, § 4. See, e.g., “An Act to incorporate the City of San Antonio,” Acts 1856, 6th Leg. Special Laws, Ch. 86, p. 4; 4 Gammel’s 550.
While it was incorporating by special laws, the Legislature also provided for incorporation of towns and cities in Acts 1858, 7th Legislature, Ch. 61, p. 69, §§ 1 and 36, respectively. 4 Gammel’s 941 ff. *746 Voters of an incorporated town elected a Constable, § 10, who “shall have the same power within the town as other Constables have within their precincts,” § 30. Voters of an incorporated city elected a city Marshal, § 38, who, as well as “the rights, powers and duties prescribed.... to town Constables,” had “such rights, powers [and] duties as shall be prescribed by.... the City Council, not inconsistent with the laws of this State,” § 41. Despite such enabling legislation “probably few” cities and towns took advantage of it for charters continued to be granted by special laws. Interpretive Commentary, supra. 2 Moreover, during Reconstruction elective city and town governments were abolished in favor of the governor’s appointing mayor and aldermen; not until 1873 did the Legislature repeal the law granting that power, and restore the original elective forms of government. Ibid. Also, the Legislature amended the basic Act of 1858, with respect to towns, primarily lowering the number of “free white inhabitants” from three hundred to “two hundred souls” and altering the scheme for incorporating and manner of elections. Acts 1873, 13th Leg., Ch. 65, p. 98; 7 Gammel’s 550. 3
Nevertheless, many cities and towns were again incorporated under a new charter, and apparently the Legislature left to local option a statement of powers and duties of a marshal or constable. See charters of named cities and towns in index to Special Laws enacted by the 13th Legislature in 1873. 7 Gammel’s 1521-1522; see also index to Special Laws of the Twelfth Legislature in 1871. 6 Gammel’s 1689-1650.
Austin, for example, was incorporated with a charter that was rather elaborate in many respects, Acts 1873, 13th Leg., Ch. 65, p. 215; 7 Gammel’s 915; but in pertinent part Article IX, § 1 merely provides: “The city marshal shall, within the city, possess the same powers, perform the same duties, and receive the same compensation, as a constable of Travis county.” Id., at 224, 7 Gammel’s 924. On the other hand, drafting from a common formulation much like that of article 809, reproduced in the Historical Note to Article 999, some cities expressed an understanding as to whether the marshal was restricted to city limits. 4 Others did not have a marshal at all, leaving such duties and functions to the mayor (as in Lampasas, Acts 1873, 13th Leg., Ch. 40, p. 288, at 290, § 5, 7 Gammel’s 990), or to a chief of police (Corpus Christi, Act 1873, 13th Leg., Ch. 193, p. 493, at 521, § 77, 7 Gammel’s 1221). In short, law enforcement was a matter for each specially chartered city and town to fashion according to its own lights — so long as it did not offend the Constitution and laws.
The direct progenitor of Article 999, supra, is in Acts 1875, 14th Leg., 2d. Sess., *747 Ch. 100, p. 113, § 20, at pp. 122-123; 8 Gammel’s 485, at 494-495. This act regulated incorporation of cities of one thousand or more inhabitants that accepted its provisions, in lieu of any existing charter, in the manner required by § 1; several articles were amended by Acts 1881, 17th Leg., Ch. 103, p. 115; 9 Gammel’s 207. Section 157 conditioned its application to any city upon “acceptance by the city council of such in accordance with the provisions of section one of this act.” Called “marshal of the city,” germane portions of § 20, supra, are quoted and underscored for context and flow of statements prescribing one’s functions, viz:
“ * * * He shall be active in quelling riots, disorder and disturbances of the peace within the limits of said city, and shall take into custody all persons so offending against the peace of the city, and shall have authority to take suitable and sufficient bail for the appearance before [city] courts, of any, person charged with an offense against the ordinances or laws of the city. It shall be his duty to arrest without a warrant all violators of the public peace and all who obstruct or interfere with him in the execution of the duties of his office, or who shall be guilty of disorderly conduct or disturbances whatever. To prevent a breach of the peace or preserve quiet and good order, he shall have authority to close any theatre, bar room, ball room, drinking house, or any other place or building of public resort; and in the prevention and suppression of crime and arrest of offenders he shall have, possess and execute like power, authority and jurisdiction as the sheriff of a county-under the laws of the State. The marshal shall give such bond for the faithful performance of his duties as the city council may require, and he shall perform such other duties and possess such other powers, rights and authority as the city council may by ordinance require and confer, not inconsistent with the Constitution and laws of this State.”
That is the article that was construed by the Supreme Court in Newburn v. Durham, 88 Tex. 288 , 31 S.W. 195 (1895). 5
Article 998 is rooted in Acts 1907, 30th Leg., Ch. 156, p. 299, 13 Gammel’s. At the time Title 18 of the Revised Civil Statutes of 1895 was entitled “Cities and Towns;” it contained Chapters 1-10, relating to cities, that were followings of Chapter C, Acts 1875, supra, and Chapter 11, relating to towns and villages, the precursor of which is the Act approved January 27, 1858, 4 Gammel’s 941, discussed ante, at pp. 745-746. 6
Section 1 of the 1907 Act amended Title 18, Chapter 4, by adding article 483b, R.C.S. 1895, providing in pertinent part:
“The city council or town council of any city or town_incorporated under the provisions of this title, may provide for the appointment ... of such police officer, or officers, as may by such city council be deemed necessary.... Such police officer or officers so appoint-ed_shall give such bond for the faithful performance of his duties as the city council may require and such police offi *748 cer or officers ... shall have powers, rights and authority as are by said title vested in city marshalls [sic].” 7
Again, none of the statutory provisions of the 1875 Act and its successors “apply to any [incorporated] city, town or village until such provisions have have been accepted by the council in accordance with [the requirements of its § 1],” now Article 961. That, of course, includes Articles 998 and 999. After the Constitution of 1876 provided in Article XI, § 4 that certain cities and town “may be chartered alone by general law,” the Legislature enacted Acts 1881, 17th Leg., Ch. 58, p. 63; 9 Gammel’s 155, to prescribe means and manner of a town or village and a city or town to be incorporated. See now Article 1133 and 966, respectively. 8
In 1909 the Constitution was amended to provide that cities and towns under five thousand population “may be chartered alone by general law.” Article XI, § 4, and Historical Note following. Adopted in 1876 to apply to cities of more than ten thousand inhabitants, Article XI, § 5 was also amended in 1909 to reduce to more than five thousand the population of cities whose charters may b'e granted or amended by special legislative acts; however, in 1912 § 5 was again amended to omit those provisions relating to special legislative acts, and to provide instead that such cities may adopt or amend charters converting to home rule form of government, subject to such limitations as may be prescribed by the Legislature. See Historical Note following § 5.
Initially enacted in 1913, the latter are generally prescribed in Chapter Thirteen, Title 28, Article 1165 et seq., V.A.C.S. Inter alia, the 1913 Act assured in what is now Article 1177: “All powers heretofore granted any city by general law or special charter are hereby preserved to each of said cities, and the power so conferred.... is hereby granted to such cities when embraced in and made a part of the charter adopted by such city; and until the charter of such city as the same now exists is amended and adopted, it shall be and remain in full force and effect.” See Board of Equalization v. McDonald, 133 Tex. 521 , 129 S.W.2d 1137 , 1141 (1939). The advent of home rule government marks the last creation of any significant class of municipal government.
. "That the constable, in addition to his powers and privileges as such, be and he is hereby vested with all the powers and privileges which are now, or may be by law, exercised by the constable of the beat in which said corporation is situated.”
. All emphasis is mine throughout unless otherwise indicated.
. It also notes that "the Court quoted approvingly from Newbum." That quote was in the lead opinion of only one judge; the concurrence expressly disagrees with the implication in the lead opinion that a city policeman has authority equal with a sheriff to county lines, thereby rejecting Newbum; the dissent is "doubtful about this construction,” and distinguishes Newburn id., 219 S.W.2d at 470-471 . In its opinion on rehearing the Court completely ignores New-bum, content to say that "the original opinion properly decided the case,” so it is “immaterial that the different judges of the Court did not agree on all the language used...” Id., at 472. Hardly an endorsement of Newbum, its opinion still has not been followed by the Court — until today.
. Because of its determination to have "jurisdiction” mean what it wants the word to mean, I call to the attention of the majority that in the critical parts of the opinion by which it puts much store Judge Graves writes in terms of “authority,” "rights” and "power” of the pursuing city policeman. If Judge Graves really believed Newburn v. Dunham controlled, he would have said so, instead of going through a lengthy exercise to reach twin holdings quoted above that are not the "doctrine” of and do not there cite Newburn.
. The Weeks court composed of Presiding Judge Wright C. Morrow, Judge Offa S. Lattimore and Judge Frank Lee Hawkins. For impressive credentials of Presiding Judge Morrow and Judge Lattimore, see Almanza v. State, 686 S.W.2d 157, 166, 171, n. 12 (Tex.Cr.App.1985); Judge Hawkins joined them on the Court February 8, 1921. Together they worked through the aftermath of Welchek v. State, writing scores of opinions on the law of arrest and search and seizure. See Brown v. State, 657 S.W.2d 797, 802-806 (Tex.Cr.App.1983). They are the Judges who approved the opinion written by Commissioner Krueger in Weeks .
. All emphasis is mine throughout unless otherwise indicated.
. Thus whether by a special law or general incorporation, we come to understand why Article 44, C.C.P. 1879 listed “constable" twice as peace officers: “The sheriff and his deputies, constable, the marshal, constable or policeman of an incorporated town or city_”
. Later it would authorize towns and villages previously incorporated by the Congress of the Republic or the Legislature of the State by resolution of aldermen and vote of the people to amend their charters “in any particular not in conflict with the constitution of the State or the Revised Statutes.” Acts 1881, 17th Leg., Ch. 77, p. 83, 9 Gammel’s 175.
. Thus San Antonio provided that its city marshal inter alia “shall have powers, and execute like power, authority and jurisdiction as the sheriff of a county, under the laws of the State, within the city limits." Acts 1870, 12th Leg., Ch. 123, p. 244, § 131, at 263; 6 Gammel’s 781; similarly, El Paso provided, he shall have powers, and execute like powers, authority and jurisdiction, as the sheriff of a county under the law of the State within the city limits, Acts 1873, 13th Leg., Ch. 181, p. 438, § 101, at 457; 7 Gammel’s 1157; Columbus provided that "the duties and powers of [its] marshal shall be coextensive with the limits of said city, and similar to those of the sheriff or constables of [Colorado County], but also granted him” power to go beyond the limits of the city to arrest offenders against the law or ordinances of the city or State, Act 1873, 13th Leg, Ch. 57, p. 906, § 12, at 910; 7 Gammel’s 910; Fort Worth authorized its marshal to execute process “anywhere,” but "only for offenses committed within [its] corporate limits,” and granted its police force "the right, in the city limits, to arrest without a warrant, for offenses against the penal ordinances of the city.” Acts, 1873, 13th Leg., Ch. 7, p. 47, at 71; 7 Gammel’s 771.
. When codified, § 20 became article 363, R.C. S. 1879; then article 407, R.C.S. 1895; article 808, R.C.S. 1911; finally Article 999, R.C.S. 1925. By Acts 1901, 27th Leg., Ch. 122, p. 291, Article 407 was amended to provide for council approval of appointment of deputies; otherwise it remained as originally enacted. See 11 Gam-mel’s. In 1895 the Legislature provided that cities and towns with fewer than three thousand inhabitants may dispense with a marshal on grounds that the office was "unnecessary and expensive.” Acts 1895, 24th.Leg., Ch. 41, p. 49; 10 Gammel’s 779. That Act was codified as article 483a, R.C.S. 1895; soon the Legislature partially recanted, and by Acts 1903, 28th Leg., ch. 87, p. 114, § 1; 12 Gammel’s, it amended the act to provide that if the office of marshal be abolished the same ordinance may confer its duties upon "any peace officer of the county;” as thus amended it became article 809a, R.C.S. 1911. See Alexander v. City of Lampasas, 275 S.W. 614 (Tex.Civ.App.-Austin 1925), no writ history. Article 999 has a similar provision. Since 1949, however, Article 999a, V.A.C.S., has provided that the office may be abolished in cities and towns with fewer than five thousand inhabitants by ordinance conferring its duties upon a city police officer.
. In R.C.S. 1911, the title was renumbered 22; presently it is Title 28, and contains many chapters added since 1895.
. To be recalled is that a town constable had the same power within the town as other constables possessed in their precincts, see ante, at page 745-746; somewhere along the way (probably in the 1879 revising process) the title was changed to marshal, and so appears in article 534, R.C.S. 1879; article 607, R.C.S. 1895; article 1056, R.C.S. 1911. As in Article 1147, R.C.S. 1925, he is still a marshal with the same power within a town that constables have in their precincts.
. Remembering the Republic of Texas had incorporated cities, towns and villages, the Legislature provided in Acts 1917, 35th Leg., Ch. 48, p. 85, they were authorized to accept the first ten chapters of the title in the manner therein prescribed. See now Articles 967, 968, 969 and 970.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9664785. Public record. Not legal advice.