Do Federal Protective Service officers still have arrest powers under Texas law after Congress repealed the old federal statute they were appointed under?

Plain-English summary

The Federal Protective Service provides security and law enforcement for federal property. Back in 1993, the Texas Legislature gave certain Service personnel limited Texas arrest and search-and-seizure powers through article 2.122(b) of the Code of Criminal Procedure. The catch is how that statute is worded: it grants the powers to a person designated as a "special policeman" by the Service "under 40 U.S.C. Section 318 or 318d," the federal appointment statute. An El Paso district attorney asked the AG what happens to that Texas authority now that Congress has repealed sections 318 and 318d.

The AG worked through the rules for a statute that incorporates another statute by reference when the referenced statute later changes. The Texas Supreme Court draws a line: if the referenced statute is flat-out repealed, the referencing statute's meaning does not change absent clear legislative intent otherwise; but if the referenced statute is amended or revised, the referencing statute picks up the amendments. Section 311.027 of the Government Code (part of the Code Construction Act) reinforces this, providing that, unless expressly stated otherwise, a reference to a statute applies to all reenactments, revisions, or amendments. Courts also avoid reading a statute in a way that makes it meaningless.

Tracing the federal history, the AG found that Congress did not simply abolish the Service's authority. In a 2002 nonsubstantive recodification of title 40, Congress repealed sections 318 through 318d and effectively replaced them with section 1315, and the Homeland Security Act moved the Service to the Department of Homeland Security and renamed its officers from "special police" to "officers and agents." The function of protecting federal property stayed the same. The AG concluded a court would likely treat section 1315 as a revision or amendment of the old sections for Texas-law purposes, so under section 311.027 the reference in article 2.122(b) to the repealed statutes must be read as a reference to their replacement. The bottom line: a court would likely conclude that article 2.122(b)'s grant of authority applies to Service officers and agents appointed under section 1315.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG 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

Prosecutors and courts handling cases involving FPS officers: At the time of the opinion, the AG read article 2.122(b) to still confer Texas arrest and search-and-seizure authority on Federal Protective Service officers and agents appointed under section 1315, despite the repeal of the older sections 318 and 318d it named.

Federal Protective Service officers and agents: The opinion concluded the change in their statutory title and supervising agency did not strip the Texas-law authority article 2.122(b) granted.

Defendants and defense counsel questioning an FPS officer's authority: The opinion explained why the AG expected a court to reject the argument that the repeal of section 318 left the Service personnel without arrest authority under Texas law, calling it an issue of first impression but a likely outcome.

Common questions

Did the repeal of 40 U.S.C. section 318 take away Federal Protective Service officers' Texas arrest powers?
The AG concluded a court would likely say no. The reference in article 2.122(b) to the repealed sections is construed as pointing to their replacement, section 1315, so the authority continues.

Why doesn't a repeal just end the Texas authority?
The AG explained that Congress did not abolish the Service's authority; it recodified it, moving the substance from sections 318-318d to section 1315. Under Government Code section 311.027, a reference to a statute applies to its reenactments and revisions, and courts avoid reading article 2.122(b) in a way that makes it meaningless.

Does the officers' new title ("officers and agents" instead of "special police") matter?
The AG concluded it did not change the result. The supervising agency and statutory title changed, but the officers' function of protecting federal property remained the same, and the Texas grant of authority follows the replacement statute.

Was this a settled question?
No. The AG called it an issue of first impression but concluded a court would likely reach this result based on the statutory-construction rules and the Code Construction Act.

Background and statutory framework

The Federal Protective Service provides physical security and law enforcement for federal property (40 U.S.C. § 1315(a), (b)(1); United States v. House). Article 2.122 of the Code of Criminal Procedure grants specified federal officers limited Texas enforcement authority, and subsection (b) gives certain Service personnel designated as "special policemen" under 40 U.S.C. § 318 or 318d the powers of arrest and search and seizure as to any Texas offense, while providing they are not peace officers (art. 2.122, 2.122(b)). The requester noted that, after Congress repealed sections 318 and 318d, some questioned whether the Service personnel still held that authority.

The AG applied the Texas Supreme Court's rule for referenced statutes that later change: a repeal does not alter the referencing statute's meaning absent clear contrary intent, but an amendment or revision is incorporated (In re R.J.J.). Section 311.027 of the Government Code, part of the Code Construction Act, provides that a reference to a statute applies to all reenactments, revisions, or amendments unless expressly provided otherwise. Courts construe a statute incorporating another by reference as borrowing that language (Kahn v. Harris, Upham & Co.) and avoid constructions that render a statute meaningless (Harris Cty. Dist. Attorney's Office v. J.T.S., where a reference to repealed article 42.13 was read as referring to the amended article 42.12; and Garcia v. State, reading a reference to a repealed statute as pointing to its replacement under section 311.027).

Tracing the federal changes, the AG noted that when article 2.122(b) was enacted in 1993, section 318 let the General Services Administration appoint "special policemen" (Pub. L. No. 100-678, § 8(a)-(b), 102 Stat. 4049 (1988); Act of May 29, 1993, 73d Leg., R.S., ch. 927, § 1, 1993 Tex. Gen. Laws 3942). In 2002, Congress recodified title 40, repealing sections 318-318d and replacing them with section 1315 (Pub. L. No. 107-217, 116 Stat. 1140 (2002)), and the Homeland Security Act transferred the Service to the Department of Homeland Security and renamed its officers (Pub. L. No. 107-296, § 403(3), 116 Stat. 2178 (2002); 6 U.S.C. § 203; 40 U.S.C. § 1315(a), (b)). Because Congress revised rather than abolished the authority, the AG concluded a court would likely treat section 1315 as a revision of the old sections, so article 2.122(b)'s grant applies to officers and agents appointed under section 1315.

Citations

Statutory provisions and session laws:

• 40 U.S.C. § 318; § 318d; §§ 318-318d; § 1315; § 1315(a), (b); § 1315(a), (b)(1)
• 6 U.S.C. § 203
• Tex. Code Crim. Proc. art. 2.122; art. 2.122(b); art. 42.12; art. 42.13
• Tex. Gov't Code § 311.027
• Pub. L. No. 100-678, § 8(a)-(b), 102 Stat. 4049 (1988)
• Act of May 29, 1993, 73d Leg., R.S., ch. 927, § 1, 1993 Tex. Gen. Laws 3942
• Pub. L. No. 107-217, 116 Stat. 1140 (2002)
• Pub. L. No. 107-296, § 403(3), 116 Stat. 2178 (2002)

Cases:

• United States v. House, 684 F.3d 1173, 1184 (11th Cir. 2012)
• In re R.J.J., 959 S.W.2d 185, 186 (Tex. 1998)
• Kahn v. Harris, Upham & Co., 253 S.W.2d 647, 650 (Tex. 1952)
• Harris Cty. Dist. Attorney's Office v. J.T.S., 807 S.W.2d 572, 574 (Tex. 1991)
• Garcia v. State, 112 S.W.3d 839, 845 & n.2 (Tex. App.-Houston [14th Dist.] 2003, no pet.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0248
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2019/kp-0248.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

April 29, 2019

The Honorable Jaime Esparza Opinion No. KP-0248
District Attorney
34th Judicial District Re: Whether the repeal of 40 U.S.C. § 318
El Paso County Courthouse, 2nd Floor affects the authority the Legislature granted to
500 East San Antonio Street Federal Protective Service officers under
El Paso, Texas 79901-2420 article 2.122(b) of the Texas Code of Criminal
Procedure (RQ-0254-KP)

Dear Mr. Esparza:

    You ask whether Congress's repeal of 40 U.S.C. § 318 affects the authority the Legislature

granted to Federal Protective Service officers under article 2.122(b) of the Texas Code of Criminal
Procedure. [1] The Federal Protective Service ("the Service") provides physical security and law
enforcement services for all federal property owned or occupied by the federal government and
persons on the property. See 40 U.S.C. § 1315(a), (b)(1) (stating that the Secretary of the
Department of Homeland Security may appoint employees of the Service to protect federal
government property); see also United States v. House, 684 F.3d 1173, 1184 (11th Cir. 2012)
("The Federal Protective Service is a law enforcement agency with jurisdiction over properties
owned and operated by the General Services Administration ...."). Article 2.122 of the Texas
Code of Criminal Procedure grants specified federal officers and special agents limited
enforcement authority under Texas law. TEX. CODE CRIM. PROC. art. 2.122. Subsection (b) grants
certain personnel of the Service the powers of arrest and search and seizure:

            A person designated as a special policeman by the Federal
            Protective Services division of the General Services Administration
            under 40 U.S.C. Section 318 or 318d is not a peace officer but has
            the powers of arrest and search and seizure as to any offense under
            the laws of this state.

Id. art. 2.122(b). You inform us that, following changes in federal law that repealed 40 U.S.C.
§§ 318 and 318d, some question whether the designated Service personnel still possess arrest and
search and seizure authority under article 2.122(b) of the Code of Criminal Procedure. Request
Letter at 1.

    The Texas Supreme Court explains the rules for construing a statute that incorporates

another statute by reference when the referenced statute subsequently is repealed, amended, or
otherwise changed:

             When one statute references another statute, one must look to the
             referenced statute to understand the referencing statute. This
             becomes problematic when the Legislature repeals or modifies the
             referenced statute; different rules of construction apply when the
             referenced statute is repealed as opposed to when it is amended or
             revised. When the referenced statute is repealed, the meaning and
             scope of the referencing statute do not change, absent clear
             legislative intent to the contrary. On the other hand, when the
             referenced statute is amended or revised, the referencing statute
             incorporates the amendments or revisions.

In re R.J.J., 959 S.W.2d 185, 186 (Tex. 1998) (citations omitted). As section 311.027 of the Code
Construction Act instructs, "[u]nless expressly provided otherwise, a reference to any portion of a
statute or rule applies to all reenactments, revisions, or amendments of the statute or rule." TEX.
GOV'T CODE § 311.027.

    Courts generally construe a statute that incorporates another statute by reference as

incorporating the language of the referenced statute. See Kahn v. Harris, Upham & Co., 253
S.W.2d 647, 650 (Tex. 1952) ("A statute can incorporate by reference other legislation if the
Legislature so intended, but when it does so it is generally considered as a borrowing of 'outside'
language."). Moreover, courts avoid a construction that renders a statute meaningless. See Harris
Cty. Dist. Attorney's Office v. J.T.S., 807 S.W.2d 572, 574 (Tex. 1991). For example, in J.T.S.,
the court considered the meaning of an expunction statute that referred to court-ordered
supervision under article 42.13 of the Code of Criminal Procedure. Id. at 573. However, the
Legislature had repealed article 42.13 and amended article 42.12 to consolidate provisions
concerning court-ordered supervision. Id. To give the expunction statute some meaning, the court
concluded that the statute's reference to repealed article 42.13 must be construed as referring to
the amended article 42.12. Id. at 574. Similarly, in Garcia v. State, the court considered a statutory
reference to another statute that had been repealed as part of revision and codification. 112 S.W.3d
839, 845 & n.2 (Tex. App.-Houston [14th Dist.] 2003, no pet.). Relying on section 311.027 of
the Code Construction Act, the court held that the statute referring to the repealed statute must be
construed as referring to the replacement statute. Id. at 847. Thus, we must examine Congress's
statutory changes with respect to the Service's authority granted in 40 U.S.C. § 318 after the
enactment of article 2.122(b) of the Texas Code of Criminal Procedure.

    In 1993, when the Texas Legislature enacted article 2.122(b), 40 U.S.C. § 318 provided for

the administrator of the General Services Administration (the "Administrator") to appoint persons
as "special policemen" to enforce laws for protection of buildings and areas owned or occupied by
the United States and under the control of the Administrator and persons on such property. See
Pub. L. No. 100-678, § 8(a)-(b), 102 Stat. 4049 (1988); see also Act of May 29, 1993, 73d Leg.,
R.S., ch. 927, § 1, 1993 Tex. Gen. Laws 3942, 3942 (codified as TEX. CODE CRIM. PROC. art.
2.122(b)). In 2002, Congress enacted a nonsubstantive recodification of title 40 of the
United States Code, repealing 40 U.S.C. §§ 318-318d and effectively replacing those statutes with
40 U.S.C. § 1315. See Pub. L. No. 107-217, 116 Stat. 1140 (2002). Subsequently, Congress
enacted the Homeland Security Act (the "Act"), which transferred to the Secretary of the
Department of Homeland Security "the functions, personnel, assets, and liabilities of . . . the
Federal Protective Service of the General Services Administration, including the functions of the
Administrator of General Services relating thereto." Pub. L. No. 107-296, § 403(3), 116 Stat. 2178
(2002); 6 U.S.C. § 203; 40 U.S.C. § 1315. The Act also revised section 1315 to change the
designation of the Service's law enforcement officers from "special police" to "officers and
agents." See 40 U.S.C. § 1315(a), (b).

    Thus, while Congress transferred the supervision and appointment of officers of the Service

from the General Services Administration to the Department of Homeland Security, and changed
the officer's statutory title, the officers' function of protecting property of the federal government
remains the same. Congress revised the law enforcement authority of the Service set out in 40
U.S.C. §§ 318 and 318d, but did not repeal it outright. If article 2.122(b) does not refer to the
replacement codification of the Service's authority, then the article becomes meaningless. While
it is an issue of first impression, a court would likely determine that 40 U.S.C. § 1315 constitutes
a revision or amendment of 40 U.S.C. §§ 318 and 318d for purposes of Texas law. Under section
311.027 of the Government Code, the reference in article 2.122(b) to the repealed statutes must be
construed as a reference to their replacement. Accordingly, a court would likely conclude that the
authority granted by article 2.122(b) of the Texas Code of Criminal Procedure to special policemen
of the Service applies to officers and agents of the Service appointed under 40 U.S.C. § 1315.

                                SUMMARY

                  A court would likely conclude that the law enforcement
          authority granted by article 2.122(b) of the Texas Code of Criminal
          Procedure applies to officers and agents of the Federal Protective
          Service appointed under 40 U.S.C. § 1315.

                                        Very truly yours,

                                        KEN PAXTON
                                        Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Jaime Esparza, Dist. Att'y, 34th Judicial Dist., to Honorable Ken Paxton, Tex. Att'y Gen. at 2 (Oct. 26, 2018) ("Request Letter"), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinions-rqs.