Does a Texas peace officer have a legal duty to step in and stop another officer who is using unlawful force?

Plain-English summary

This opinion came out in late 2020, when many police departments were adopting "duty to intervene" policies requiring officers to stop colleagues who use unreasonable force. Representative James White, chair of the House Committee on Corrections, asked the Attorney General a focused question: does Texas law already impose such a duty? He pointed to an assumption that, because no Texas statute spells out one officer's obligation to check another, there is no requirement at all. He asked the AG to look at two specific statutes and decide whether they might indirectly create a duty to intervene, and the AG limited the opinion to those two.

The first was Code of Criminal Procedure article 2.13. It makes it "the duty of every peace officer to preserve the peace within the officer's jurisdiction," and says an officer "shall . . . interfere without warrant to prevent or suppress crime" when authorized. Because the Legislature's use of "shall" generally imposes a duty, the AG reasoned that an officer who observes a crime in progress, whether the person committing it is a member of the public or another officer, has a duty to prevent or suppress that crime. The AG cited the Texas Supreme Court's statement in Garza v. Harrison that peace officers "are also expected to stop crime whenever it occurs." The second statute was Penal Code section 39.03, the official-oppression offense. It makes it a crime for a public servant acting under color of office to intentionally subject another to unlawful mistreatment, arrest, detention, search, or seizure, or to intentionally deny or impede another's rights knowing the conduct is unlawful. Peace officers count as public servants for this purpose and can be prosecuted for official oppression.

But the AG stopped short of declaring an absolute duty to intervene. Whether either statute actually creates a duty in a given encounter depends on the particular facts, and the AG has long held that whether a crime occurred in a specific situation, or whether someone acted with the required mental state, is a fact question an attorney general opinion cannot resolve. On top of that, the AG found no court decision, and the request cited none, applying article 2.13 or section 39.03 to impose civil or criminal liability on an officer for failing to intervene. Given all that, the AG concluded it could not say there was an absolute duty for an officer to intervene under the circumstances described. The opinion neither created such a duty nor ruled one out; it identified the two statutes that could be in play and left the rest to the facts and the courts.

Currency note

This opinion was issued in 2020. 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. Texas enacted significant police-conduct legislation after 2020, so anyone relying on this should confirm the current state of the law.

What the opinion meant for those who asked

The opinion was written for a legislator examining whether existing Texas law already required officers to intervene. For the Legislature, the takeaway was that the two statutes it asked about, article 2.13 and section 39.03, could reach officer conduct but did not clearly establish a stand-alone duty to intervene, which left room for the Legislature to act if it wanted a clear rule. For police departments, the opinion neither endorsed nor undercut their internal duty-to-intervene policies; it spoke only to what these two state statutes did, not to what a department could require as a matter of policy. For officers, the opinion noted that an officer who watches a crime unfold, including one committed by a fellow officer, already has a statutory duty to prevent or suppress crime, and that an officer's own unlawful conduct under color of office can be prosecuted as official oppression, while declining to say a failure to intervene was itself an absolute statutory violation.

Common questions

Q: Did the AG say Texas officers must intervene to stop another officer's excessive force?
A: Not as an absolute rule. The AG concluded it could not say there is an absolute duty to intervene under the statutes asked about, because whether a duty arises depends on the facts and no court had applied those statutes that way.

Q: So do the statutes mean nothing here?
A: No. The AG said article 2.13 gives every peace officer a duty to preserve the peace and to interfere to prevent or suppress crime, so an officer who sees a crime in progress, even by another officer, has a duty to act on that crime. The limit was on declaring a categorical "duty to intervene."

Q: Can an officer be prosecuted for abusing someone under color of the badge?
A: Yes. The AG noted that Penal Code section 39.03 makes official oppression a crime, and peace officers, as public servants, can be prosecuted if they intentionally subject someone to unlawful treatment or knowingly deny a person's rights.

Q: Why didn't the AG just give a yes-or-no answer?
A: Because whether a duty exists in a specific encounter is a fact question, and attorney general opinions resolve questions of law, not disputed facts. The AG also found no court decision applying these statutes to a failure-to-intervene situation.

Background and statutory framework

The question sat at the intersection of two long-standing Texas statutes and the limits of the AG opinion process. Code of Criminal Procedure article 2.13 defines the core duties of a peace officer (preserving the peace and interfering without a warrant to prevent or suppress crime), and article 2.12 lists who qualifies as a peace officer. Government Code section 311.016(2) supplies the interpretive rule that "shall" generally creates a duty. The Texas Supreme Court's decision in Garza v. Harrison supports the broad proposition that officers are expected to stop crime whenever it occurs. On the criminal-liability side, Penal Code section 39.03 defines official oppression by a public servant acting under color of office, and a line of cases (Ryser v. State, Carriere v. State, Bryson v. State, and McCoy v. State) confirms that police officers are public servants subject to that offense. The reason the AG declined to find an absolute duty traces to its consistent practice, reflected in prior opinions like GA-0956 and GA-0774, that whether a crime occurred or whether a person had the required culpable mental state in a particular situation is a fact question outside the scope of an attorney general opinion. The opinion therefore mapped the relevant law without resolving the fact-bound question of when a duty to intervene actually attaches.

Citations and references

Statutory provisions:

• Tex. Code Crim. Proc. art. 2.13 (duty to preserve the peace; interfere to prevent or suppress crime); art. 2.12 (who is a peace officer)
• Tex. Penal Code § 39.03 (official oppression)
• Tex. Gov't Code § 311.016 ("shall" imposes a duty)

Key cases:

• Garza v. Harrison, 574 S.W.3d 389 (Tex. 2019) (peace officers are expected to stop crime whenever it occurs)
• Ryser v. State, 453 S.W.3d 17 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd) (official oppression prosecution of an officer)
• Carriere v. State, 84 S.W.3d 753 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd) (police officer is a public servant)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0343
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2020/kp-0343.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

December 7, 2020

The Honorable James White
Chair, House Committee on Corrections
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. KP-0343

Re: Whether a peace officer has a duty to intervene to prevent another peace officer from violating the rights of a citizen (RQ-0357-KP)

Dear Representative White:

You ask about the duties of Texas peace officers.¹ You describe the policy approach of some police departments requiring "law enforcement officers to intervene to stop colleagues from using unreasonable force, i.e., violating a citizen's constitutional and civil rights." Request Letter at 1. You tell us "there seems to be an assumption that since there is not specific state statutory guidance for one Texas peace officer to ascertain if another peace officer is violating the rights of a detainee . . . there is not a requirement of any Texas peace officer to guarantee any constitutional protections." Id. at 1–2. You ask specifically about two state statutes and question whether they may indirectly create a duty to intervene, and we limit the opinion accordingly. See id. at 2.

You first ask about Code of Criminal Procedure article 2.13, which establishes "the duty of every peace officer to preserve the peace within the officer's jurisdiction." TEX. CODE CRIM. PROC. art. 2.13(a); see also id. art. 2.12 (listing the various officers that are "peace officers"). Pursuant to that duty, a peace officer "shall . . . interfere without warrant to prevent or suppress crime" when authorized. Id. art. 2.13(b)(1); see also TEX. GOV'T CODE § 311.016(2) (explaining that "shall" generally imposes a duty when used by the Legislature). Thus, if a peace officer observes a crime in progress, whether committed by a member of the public or another officer, the peace officer has a duty to prevent or suppress that crime. See Garza v. Harrison, 574 S.W.3d 389, 403 (Tex. 2019) ("Peace officers are also expected to stop crime whenever it occurs.").

You also ask about Penal Code section 39.03. Request Letter at 2. Section 39.03 provides, in relevant part:

(a) A public servant acting under color of his office or employment commits an offense if he:

(1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful;

(2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful . . . .

TEX. PENAL CODE § 39.03(a). Peace officers, like any other public servants, are subject to prosecution for official oppression if they violate this provision.² See, e.g., Ryser v. State, 453 S.W.3d 17, 27 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd).

While the two provisions about which you ask could apply to peace officers generally, whether they create a duty in a specific situation will involve fact questions beyond the scope of an attorney general opinion. See Tex. Att'y Gen. Op. No. GA-0956 (2012) at 3 ("Whether a person has committed a crime in any particular circumstance is a question of fact that cannot be resolved in an attorney general opinion."); see also Tex. Att'y Gen. Op. Nos. GA-0774 (2010) at 7 (stating that proof of a person's culpable mental state under section 39.02 of the Penal Code is a fact question that cannot be resolved in an attorney general opinion), GA-0326 (2005) at 6, JC-0020 (1999) at 2, DM-98 (1992) at 3, H-56 (1973) at 3. Moreover, you do not cite to any judicial opinion, and we find none, in which a court applied Code of Criminal Procedure article 2.13 or Penal Code section 39.03 to seek civil or criminal redress against a peace officer for failure to intervene. Thus, we cannot conclude that there is an absolute duty for an officer to intervene under the circumstances you describe.

² "Although not explicitly included in the Penal Code definition of a 'public servant,' courts have interpreted public servant to include a police officer." Carriere v. State, 84 S.W.3d 753, 757 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd) (citing Bryson v. State, 807 S.W.2d 742, 745–46 (Tex. Crim. App. 1991), and McCoy v. State, 932 S.W.2d 720, 723 (Tex. App.—Fort Worth 1996, pet. ref'd)).

S U M M A R Y

Article 2.13(a) of the Code of Criminal Procedure makes it "the duty of every peace officer to preserve the peace within the officer's jurisdiction." Section 39.03 of the Penal Code makes it a criminal offense for a public servant to deny or impede "another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful." You do not cite to any judicial opinion, and we find none, in which a court applied Code of Criminal Procedure article 2.13 or Penal Code section 39.03 to seek civil or criminal redress against a peace officer for failure to intervene. Thus, we cannot conclude that there is an absolute duty for an officer to intervene under the circumstances you describe.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff
Acting Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee