Can a Texas city police officer make traffic stops in the county under a mutual aid agreement?

Plain-English summary

The Lamar County Attorney asked about a proposed mutual assistance agreement between the Lamar County Sheriff's Department and the Reno, Texas Police Department, and how sections 362.002 and 362.003 of the Local Government Code applied. The Attorney General noted at the outset that the opinion process does not interpret particular contracts, but it could address the parties' authority to enter such an agreement and the jurisdictional effects.

The opinion's first point was that the two parts of section 362.002 operate independently. Subsection (a) allows a county, municipality, or joint airport, by resolution or order of its governing body, to provide its officers to assist another, but only where the other jurisdiction's mayor or authorized officer has declared a state of civil emergency because of disaster, riot, threat of concealed explosives, or unlawful assembly. Subsection (b) is different: it lets neighboring governments enter into an agreement to form a mutual aid law enforcement task force to cooperate in criminal investigations and law enforcement. The opinion held that subsection (b) is not conditioned on any civil emergency. Because the Legislature put no such restriction in subsection (b), the opinion declined to read one in. The opinion also noted such an agreement must be made by the governing bodies; a sheriff cannot enter one without the commissioners court's express authorization.

The second point concerned traffic enforcement. Under article 14.03(g) of the Code of Criminal Procedure, a municipal officer outside his jurisdiction generally may make a warrantless arrest for offenses committed in his presence, but for traffic offenses only certain Department of Public Safety officers may do so. The opinion explained that this limit did not apply here, because an officer acting under a section 362.002 agreement is not outside his jurisdiction. Section 362.003(a) provides that while an officer of one jurisdiction is in the service of another under the chapter, he is a peace officer of that other jurisdiction with all the powers of its regular officers. So a city officer working in the county under a section 362.002(b) agreement is, for the purpose of the agreement, a county officer acting within his jurisdiction and may make traffic arrests. The opinion drew on a recent companion opinion reaching the same result for a city officer acting as a drainage district peace officer. Where a stop is merely investigative, however, the officer's authority is limited to what the agreement specifies.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The county attorney and the contracting governments (what the opinion held): The opinion held that a section 362.002(b) mutual aid task force agreement does not depend on any civil emergency, must be approved by the governing bodies (not a sheriff acting alone), and may define the scope of the task force's work. It held that a city officer acting in the county under such an agreement is, by virtue of section 362.003, a county peace officer within his jurisdiction when enforcing traffic laws there, while investigative authority is limited to what the agreement sets out.

Peace officers working under the agreement (what the opinion held): The opinion held that such an officer carries all the powers of a regular officer of the jurisdiction he is serving, including the power to make traffic arrests within the area covered by the agreement, and is treated as acting within his own jurisdiction rather than as an extrajurisdictional officer.

Common questions

Does a mutual aid policing agreement require a declared emergency?
Not under subsection (b). The opinion held that section 362.002(b) agreements to form a mutual aid task force carry no civil-emergency requirement. The emergency requirement applies only to subsection (a), which covers one government unilaterally sending officers to another.

Can a city officer write traffic tickets in the county under the agreement?
Yes. The opinion concluded that under section 362.003 the city officer becomes a county peace officer for the agreement's purposes and is within his jurisdiction in enforcing traffic laws in the county.

Who has to approve the agreement?
The governing bodies of the participating governments. The opinion noted a sheriff cannot enter such an agreement without express authorization from the commissioners court.

Is there any limit on what the officer can do?
Yes, for investigative work. The opinion said the officer's investigative authority is limited to what is "set forth in the agreement," while the traffic-arrest power flows from sections 362.002 and 362.003.

Background and statutory framework

Section 362.002(a) of the Local Government Code permits a county, municipality, or joint airport, by resolution or order of its governing body, to provide its regularly employed law enforcement officers to assist another such entity, but only when that entity's mayor or other authorized officer declares a state of civil emergency because of disaster, riot, threat of concealed explosives, or unlawful assembly characterized by force and violence. Tex. Loc. Gov't Code Ann. § 362.002(a) (Vernon 1999). Section 362.002(b) instead permits neighboring entities to enter into an agreement to form a mutual aid law enforcement task force to cooperate in criminal investigations and law enforcement, with no emergency requirement. Tex. Loc. Gov't Code Ann. § 362.002(b) (Vernon 1999). The opinion declined to read the subsection (a) emergency limit into subsection (b). Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 867 (Tex. 1999) (words added only in extraordinary situations to effect clear legislative intent).

On jurisdiction, section 362.002(c) lets an officer make an arrest outside the entity in which he is employed but within the area covered by the agreement, and section 362.003(a) provides that an officer serving another entity under the chapter is a peace officer of that entity with all the powers of its regular officers. Tex. Loc. Gov't Code Ann. § 362.002(c) (Vernon 1999); § 362.003(a). The opinion contrasted article 14.03(g) of the Code of Criminal Procedure, under which an officer outside his jurisdiction generally may make warrantless arrests for offenses in his presence but, for traffic offenses, only certain Department of Public Safety officers listed in Subdivision 4 of article 2.12 may do so; that limit did not apply because the agreement placed the officer within his jurisdiction. Tex. Code Crim. Proc. Ann. art. 14.03(g) (Vernon 2002); Chavez v. State, 970 S.W.2d 679, 681 (Tex. App.-Eastland 1998, pet. granted), aff'd 9 S.W.3d 817 (Tex. Crim. App. 2000) (officers have the same authority within the area covered by the agreement as in their home jurisdiction). The opinion analogized to a companion opinion involving a city officer contracted to serve as a drainage district peace officer under section 49.216 of the Water Code. Tex. Water Code Ann. § 49.216(a) (Vernon 2000).

Citations

Statutes:

• Tex. Loc. Gov't Code Ann. § 362.002(a), § 362.002(b), § 362.002(c) (Vernon 1999); § 362.003(a)
• Tex. Code Crim. Proc. Ann. art. 14.03(g) (Vernon 2002); art. 2.12 (Subdivision 4)
• Tex. Water Code Ann. § 49.216(a) (Vernon 2000)

Cases:

• Chavez v. State, 970 S.W.2d 679, 681 (Tex. App.-Eastland 1998, pet. granted), aff'd 9 S.W.3d 817 (Tex. Crim. App. 2000)
• Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 867 (Tex. 1999)

Prior Attorney General materials referenced: Tex. Att'y Gen. Op. Nos. JC-0355 (2001), JC-0032 (1999), JC-0263 (2000), JM-0160 (1984), DM-77 (1992), JC-0530 (2002).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0532
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2002/jc0532.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS
JOHN CORNYN

July 26, 2002

The Honorable Mark Burtner Opinion No. JC-0532
Lamar County Attorney
119 North Main Street Re: Validity of a mutual assistance agreement
Paris, Texas 75460 that would permit a municipal police officer to
answer calls in the county and outside municipal
jurisdiction (RQ-0499-JC)

Dear Mr. Burtner:

You have asked this office a series of questions concerning the interpretation of sections 362.002 and 362.003 of the Local Government Code and the effect of those provisions on a proposed mutual assistance agreement between the Sheriff's Department of Lamar County and the Reno, Texas Police Department.[1] This office does not construe contracts in the opinion process, and accordingly would not be able to advise on the interpretation of such a document.[2] Your questions, however, concern the authority of the parties to enter into such an agreement and its jurisdictional effects, matters upon which we can opine. In our view, subsections 362.002(a) and 362.002(b) function independently, and subsection (b) is not conditioned, as subsection (a) is, on the existence of "a state of civil emergency . . . because of disaster, riot, threat of concealed explosives, or unlawful assembly." TEX. LOC. GOV'T CODE ANN. § 362.002(a) (Vernon 1999). A peace officer of one jurisdiction acting under the authority of an agreement pursuant to section 362.002 who "is in the service of [the other contracting jurisdiction] . . . is a peace officer of the latter [jurisdiction] . . . [and] has all the powers of a regular law enforcement officer of [that jurisdiction]," including the power to make traffic arrests. Id. § 362.003(a).

Subsection (a) of section 362.002 permits a county, municipality, or joint airport "by resolution or order of its governing body" to provide "its regularly employed law enforcement officers to assist another county, municipality, or joint airport." Id. § 362.002(a). The provision of such officers, for the purpose of subsection (a) is limited to situations in which "the mayor or other officer authorized to declare a state of civil emergency [in the other jurisdiction] considers [such] officers necessary to protect health, life, and property . . . because of disaster, riot, threat of concealed explosives, or unlawful assembly characterized by force and violence." Id. Thus, a county, municipality, or joint airport may unilaterally send officers to another jurisdiction under subsection (a) only in the event of such a state of emergency as described.

Subsection (b), on the other hand, permits a county, municipality, or joint airport to "enter into an agreement with a neighboring [jurisdiction] to form a mutual aid law enforcement task force to cooperate in criminal investigations and law enforcement." Id. § 362.002(b). This subsection, then, permits a mutual agreement between the jurisdictions, not the unilateral provision of aid by one to another. Such an agreement must be made by the relevant governing bodies; the provision does not authorize a sheriff to enter into such an agreement without the express authorization of the commissioners court. See Tex. Att'y Gen. Op. No. JC-0263 (2000) at 6. The precise nature of the "task force" is not defined by the statute, nor does the legislative history offer such a definition. The Oxford English Dictionary defines "task force" as "any group of persons organized for a special task." XVII OXFORD ENGLISH DICTIONARY 656 (2d ed. 1989). This office has liberally construed the provision in the past. See Tex. Att'y Gen. Op. No. JM-0160 (1984) at 1 (statute "authorizes one county or municipality to provide law enforcement officers to another county or municipality in case the latter finds itself in need of additional officers"); see also Tex. Att'y Gen. Op. No. DM-77 (1992) at 3 (section generally "provides a mechanism for a governmental body, including a county, to offer the assistance of its law enforcement officers to other jurisdictions"). As we further noted in Attorney General Opinion No. JC-0263, the authority in chapter 362, which requires authorization by a local government's governing body, may confer "law enforcement authority . . . upon a peace officer" additional to that conferred by article 14.03 of the Code of Criminal Procedure governing extrajurisdictional powers. See Tex. Att'y Gen. Op. No. JC-0263 (2000) at 6. "The statute . . . ensure[s] and make[s] clear that peace officers are to have the same authority within the area covered by the agreement as in the officer's home jurisdiction." Chavez v. State, 970 S.W.2d 679, 681 (Tex. App.-Eastland 1998, pet. granted), aff'd 9 S.W.3d 817 (Tex. Crim. App. 2000). The duties of these peace officers under the agreement are a matter for the contracting parties to decide.

There is no restriction in subsection (b) comparable to the "state of emergency" restriction in subsection (a); accordingly, we cannot insert one. See Fitzgerald v. Advanced Spine Fixation Sys. Inc., 996 S.W.2d 864, 867 (Tex. 1999) (words may be added only in extraordinary situations to effect clear legislative intent). Subsections (a) and (b) describe two different kinds of situations, and operate independently of each other.

You ask further whether the proposed agreement grants a "city officer, operating in the county pursuant to the agreement, authority to make traffic stops and conduct traffic enforcement." Request Letter, supra note 1, at 3. Given that the parties to an agreement under section 362.002 are in the best position to know the particular law enforcement needs to be addressed by a mutual aid task force in their jurisdictions, the statute allows them to decide the scope of a task force agreement, and the duties of peace officers under the agreement are consequently a matter for the contracting parties to decide. Authority to make traffic arrests may be validly exercised by the officer under sections 362.002 and 362.003; the investigative authority of the officer is limited to that "set forth in the agreement." See TEX. LOC. GOV'T CODE ANN. § 362.002(b) (Vernon 1999).

You note that, under article 14.03(g) of the Code of Criminal Procedure, the statute that ordinarily governs extrajurisdictional arrests, while a municipal peace officer "who . . . 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," with regard to traffic offenses only an "officer . . . listed in Subdivision 4, Article 2.12 [of the Code of Criminal Procedure]"-that is, only Department of Public Safety ("D.P.S.") commissioned rangers or officers-may make such an arrest. TEX. CODE CRIM. PROC. ANN. art. 14.03(g) (Vernon 2002) (emphasis added). While only D.P.S. rangers or officers may make traffic arrests outside their jurisdiction pursuant to article 14.03(g), under the terms of section 362.002(c) and particularly of section 362.003(a), the officer in your hypothetical is not, in fact, outside of his or her jurisdiction. Section 362.002(c) permits such an officer to "make an arrest outside the county, municipality, or joint airport in which the officer is employed but within the area covered by the agreement." TEX. LOC. GOV'T CODE ANN. § 362.002(c) (Vernon 1999). Section 362.003(a) makes yet clearer the authority under which the officer does so:

            While a law enforcement officer regularly employed by one county, municipality, or joint airport is in the service of another county, municipality, or joint airport according to this chapter, the officer is a peace officer of the latter [political subdivision] and is under the command of the law enforcement officer who is in charge in that [political subdivision]. The officer has all the powers of a regular law enforcement officer of that [political subdivision] as fully as if the officer were in the [political subdivision] where regularly employed.

Id. § 362.003(a) (emphasis added). Thus, the city police officer in your hypothetical, for the purpose of the agreement, is a county peace officer in making a traffic arrest, and does so within his jurisdiction as defined by section 362.003(a). If the stop is merely investigative, however, his power is limited to that "set forth in the agreement." See id. § 362.002(b).

This office recently considered an analogous situation in Tex. Att'y Gen. Op. No. JC-0530 (2002). In that opinion, we were asked whether a city police officer acting as a drainage district peace officer could make warrantless arrests within the drainage district. The relevant statutory provision, section 49.216 of the Water Code, permitted the drainage district to "contract for or employ its own peace officers." See TEX. WATER CODE ANN. § 49.216(a) (Vernon 2000). The district in question had contracted under the Interlocal Cooperation Act with a city to provide such peace officers. Attorney General Opinion JC-0530 held that such officers were, in fact, drainage district peace officers and were within their jurisdiction in making such arrests. See Tex. Att'y Gen. Op. No. JC-0530 (2002) at 1. Here, too, the city police officers are, under section 362.003, officers of the county in making these traffic arrests. Accordingly, the reasoning of Attorney General Opinion JC-530 applies here, as well. A city police officer acting under the authority of the kind of contract contemplated by section 362.002(b) within the contracting county is, by virtue of section 362.003, a county officer for this purpose and is within his or her jurisdiction in enforcing traffic laws.

                                   SUMMARY

            The authority of certain local governments to enter into mutual assistance agreements pursuant to section 362.002(b) of the Local Government Code is not dependent on the existence of a state of civil emergency. A city police officer acting within a county on the basis of such an agreement is, under the terms of section 362.003 of the Local Government Code, within his or her jurisdiction when enforcing traffic laws in the county.

                                          JOHN 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

James E. Tourtelott
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Mark Burtner, Lamar County Attorney, to Honorable John Cornyn, Texas Attorney General (Jan. 11, 2002) (on file with Opinion Committee) [hereinafter Request Letter].

[2] See, e.g., Tex. Att'y Gen. Op. Nos. JC-0355 (2001) at 3 (contract interpretation beyond purview of an attorney general opinion); JC-0032 (1999) at 4 (contract interpretation beyond purview of this office).