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Crane v. State of Texas, 759 F.2d 412 (5th Cir.1985).
Conclusion: In sum, we hold that neither Dallas County nor its officials are protected by the immunity provided by the Eleventh Amendment and that both the County and its officials are "persons" within the meaning of 42 U.S.C. § 1983. We affirm the trial court's findings that the Dallas County system of issuing misdemeanor capias violated both Texas law and the United States Constitution. We reverse the findings of immunity from liability for money damages as to the County and the District Attorney, and hold the former liable for its official policy and the latter liable in his official capacity. We therefore reinstate the jury's award of money damages. We reverse the assessment of attorneys' fees against the State of Texas, and render judgment against the County for the fees.
It is so ORDERED.
July 16, 1987
Honorable Gary E. Kersey
Opinion No. JM-751
Re: Constitutionality of certain portions of article 14.03 of the Code of Criminal Procedure, regarding warrantless arrests in certain misdemeanor cases involving family violence
Dear Mr. Kersey:
You inquire about the constitutionality under the Fourteenth Amendment of the United States Constitution of portions of article 14.03 of the Texas Code of Criminal Procedure. Article 14.03 provides as follows:
(a) Any peace officer may arrest, without warrant:
(2) persons who the peace officer has probable cause to believe have committed an assault resulting in bodily injury to another person and the peace officer has probable cause to believe that there is danger of further bodily injury to that person; or
(3) persons who the peace officer has probable cause to believe have committed the offense defined by Section 25.08, Penal Code (violation of Court Order), whether or not the offense is committed in the presence of the peace officer.
(b) If necessary to verify an allegation of a violation of a protective order, a peace officer shall follow the procedures established under Section 71.18, Family Code, without leaving the scene of the investigation if there is a possibility of the further commission of family violence. (Emphasis added).
Code Crim.Proc. art. 14.03. Article 14.03 subsections (a)(2) and (a)(3) refer to offenses which the Penal Code defines as misdemeanors. See Penal Code ss 22.01; 25.08.
Section 22.01 of the Penal Code, which defines the offense of assault, provides that a person commits an offense if he "intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse." Penal Code s 22.01(a)(1). Section 25.08(a) of the Penal Code defines as an offense certain knowing or intentional conduct by a person which violates a protective order issued to restrain him from family violence. [FN1] The actions which constitute offenses under Penal Code section 25.08 if performed in violation of such a court order include committing family violence, communicating directly with a member of the family or household in a threatening or harassing manner, or going to or near the residence or place of employment of a member of the family or household specifically described in the protective order. Penal Code s 25.08(a). You question the constitutionality of subsections (a)(2) and (a)(3), of article 14.03 of the Code of Criminal Procedure, which allow a peace officer to make a warrantless arrest of a person who has committed one of the enumerated offenses, even though the offense was not committed in the presence of the peace officer. Compare Code Crim.Proc. art. 14.01 with art. 14.03. You state in your letter that article 14.03(a)(3) of the Code of Criminal Procedure allows a misdemeanor arrest without warrant for an offense committed under section 25.08(a) of the Penal Code even when there is no danger to the party protected by the court order. You suggest that article 14.03 of the Code of Criminal Procedure would allow a warrantless arrest based upon the protected party's report that the order was being violated, since this report would probably be legally sufficient to give the officer probable cause. You do not question the constitutionality of the underlying provision, subsection 25.08(a) of the Penal Code. Your concerns are directed at the arrest procedure which article 14.03 of the Code of Criminal Procedure authorizes when the officer has probable cause to believe that a person has violated section 25.08 of the Penal Code.
You argue that subsections (a)(2) and (a)(3) of article 14.03 are invalid under the Fourth Amendment of the United States Constitution, which is applicable to the states through the Fourteenth Amendment. The Fourth Amendment provides as follows:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const. amend. 4. Article I, section 9, of the Texas Constitution provides a similar protection against unreasonable searches and seizures.
Subsections (a)(2) and (a)(3) of article 14.03 of the Code of Criminal Procedure depart from the common law rule that a peace officer has no power to arrest for a misdemeanor without a warrant unless it has been committed in his presence or involves a breach of the peace. See, e.g., Crane v. State of Texas, 759 F.2d 412 (5th Cir.1985). Neither subsection (a)(2) or (a)(3) of article 14.03 rest upon any widely recognized exceptions to this common law rule. See 2 LaFave, Search and Seizure s 5.1, at 222-24 (1978).
The common law rule on searches and seizures has provided a starting point for interpreting the Fourth Amendment, but the meaning of this constitutional provision is not controlled by the common law rule. See, e.g., Welsh v. Wisconsin, 466 U.S. 740 (1984); Payton v. New York, 445 U.S. 573, 579-81 (1980); United States v. Watson, 423 U.S. 411, 418 (1976); Carroll v. United States, 267 U.S. 132, 157 (1925); Crane v. State of Texas, 759 F.2d 412 (5th Cir.1985); Street v. Surdyka, 492 F.2d 368 (4th Cir.1974). In Welsh v. Wisconsin, supra, the Supreme Court held that the Fourth Amendment prohibited the warrantless, nighttime entry into an individual's home to arrest him for a noncriminal traffic offense, absent exigent circumstances.
A dissent by Justice White pointed out that the common law requirement "that a misdemeanor must have occurred in the officer's presence to justify a warrantless arrest is not grounded in the Fourth Amendment." 466 U.S. at 747. It further noted that the Supreme Court has never held "that a warrant is constitutionally required to arrest for nonfelony offenses occurring out of the officer's presence." Id.
In United States v. Watson, 423 U.S. 411 (1976) the Supreme Court held that the Fourth Amendment permits a law enforcement officer to make a warrantless arrest for a felony offense in a public place, even though he had adequate opportunity to get a warrant. The court relied in part on the fact that the ancient common law rule was codified in the statute authorizing such arrests. 423 U.S. at 418. It also noted that the American Law Institute (ALI) had incorporated the common law standard for felony arrests in its model statute governing warrantless arrests. 423 U.S. at 422, n. 11. The model statute reads as follows:
(1) Authority to Arrest Without a Warrant. A law enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed
(a) a felony;
(b) a misdemeanor, and the officer has reasonable cause to believe that such person
(i) will not be apprehended unless immediately arrested; or
(ii) may cause injury to himself or others or damage to property unless immediately arrested; or
(c) a misdemeanor or petty misdemeanor in the officer's presence. (Emphasis in original).
ALI, Model Code of Pre-arraignment Procedure s 120.1 (1975). The Supreme Court did not comment on subsection (b) of the model code provision, which expands the common law authority for warrantless arrests in misdemeanor cases. But see Dawson, State-Created Exclusionary Rules in Search and Seizure: A Study of the Texas Experience, 59 Tex.L.Rev. 191, 221-22 (1981) (U.S. v. Watson makes clear that the sole requirement of the Fourth Amendment respecting arrests in public places is that the officer act upon probable cause).
In Street v. Surdyka, 492 F.2d 368 (4th Cir.1974), a federal court of appeals presented reasons why the Fourth Amendment does not incorporate common law restrictions on warrantless arrests for misdemeanors:
[T]he Supreme Court has never given constitutional force to this element of the common law rule. In Bad Elk v. United States, 177 U.S. 529, 20 S.Ct. 729, 44 L.Ed. 874 (1900), the Court applied the common law rule but hinted that its restrictions could be relaxed by statute. Subsequent cases have focused entirely on the requirement of probable cause. See Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). We do not think the fourth amendment should now be interpreted to prohibit warrantless arrests for misdemeanors committed outside an officer's presence. The difference between felonies and misdemeanors is no longer as significant as it was at common law.... Maryland courts have criticized the continued use of the common law rule as impractical and illogical, and have invited the state legislature to adopt new rules. Robinson v. State, 4 Md.App. 515, 243 A.2d 870 (1968).... We are most reluctant to adopt a constitutional interpretation that would impede reform in this area. The fourth amendment protects individuals from unfounded arrests by requiring reasonable grounds to believe a crime has been committed. (Footnotes omitted).
492 F.2d at 371-72.
A number of states have enacted statutes authorizing peace officers to make warrantless arrests for misdemeanors committed outside their presence. See, e.g., D.C.Code Ann. s 23-581; Fla.Stat. s 901.15(6) (warrantless arrest if there is probable cause to believe the person has committed an act of domestic violence in violation of injunction); Kan.Code Crim.Proc. s 22-2401; Md.Code Ann. s 27.594 (B); Ohio Code Ann. s 2935.03; Wash.Rev.Code Ann. 10.31.100. The courts of some states have dealt with the validity of a warrantless arrest of an individual by a peace officer for a misdemeanor committed outside of his presence. See, e.g., State v. Presley, 458 So.2d 847 (Fla.Dist.Ct.App.1984) (test for warrantless arrest in misdemeanor is whether the officer has a substantial reason to believe arrestee is guilty of a crime); LeBlanc v. State, 382 So.2d 299 (Fla.1980) (provision for warrantless arrest for battery committed upon spouse does not violate equal protection clause); Wilson v. Hunk, 367 N.E.2d 478 (Ill.App.Ct.1977) (warrantless arrest for misdemeanor not committed in officer's presence is not illegal arrest); Lurie v. District Attorney of Kings County, 288 N.Y.S.2d 256 (Sup.Ct.Special Term 1968) (arrest for a misdemeanor not committed in officer's presence violates no state or federal constitutional standard); City of Columbus v. Herrell, 247 N.E.2d 770 (Ohio Ct.App.1969) (statute authorizing peace officer to arrest without a warrant any person he has reasonable cause to believe is guilty of assault and battery, a misdemeanor, does not violate Fourth Amendment); State v. Bryant, 678 S.W.2d 480 (Tenn.Crim.App.1984), cert. denied, 469 U.S. 1192 (1985) (the rule that a police officer has no authority to make misdemeanor arrest for offense committed outside his presence is a common law rule and not constitutionally required). In Kelley v. State, 676 S.W.2d 646 (Tex.App.--Houston [1st Dist.] 1984, pet. ref'd) the court determined that a search was invalid because it was made pursuant to an invalid arrest for a felony. The court stated that the Fourth Amendment of the United States Constitution requires the police to have probable cause to arrest a suspect, and since there was probable cause the federal constitution was not violated in this case. 676 S.W.2d at 648. However, since Texas has imposed greater restraints on police conduct than the federal constitution requires, the arrest was invalid because it violated Texas law. The court reviewed statutes authorizing warrantless arrest, including the provision now codified as article 14.03(a)(2) of the Code of Criminal Procedure, but did not comment on its validity. 676 S.W.2d at 649.
Finally, in Gonzales v. City of Peoria, 722 F.2d 468 (9th Cir.1983), the court determined that Arizona law enforcement officers could arrest for violations of the Immigration and Nationality Act under the following state provision:
A peace officer may, without a warrant, arrest a person:
4. When he has probable cause to believe a misdemeanor has been committed and probable cause to believe the person to be arrested has committed the offense....
Ariz.Rev.Stat.Ann. s 13-3883 (1978).
Thus, there is federal and state case law, as well as legal scholarship, which supports the constitutionality of the arrest provisions you inquire about. We should moreover presume that this legislation is constitutional. See United States v. Watson, supra. We therefore do not believe subsections (a)(2) or (a)(3) of article 14.03 are facially unconstitutional.
Article 14.03 of the Code of Criminal Procedure does not expressly authorize an unconsented entry into a suspect's home to arrest him. A warrantless, unconsented entry into a suspect's home to make a routine felony arrest violates the Fourth Amendment. Payton v. New York, 445 U.S. 573 (1980). The Supreme Court has held that a warrantless nighttime entry into an individual's home to arrest him for a civil, nonjailable traffic offense was, in the absence of exigent circumstances, prohibited by the Fourth Amendment. Welsh v. Wisconsin, 466 U.S. 740 (1984). Although the petitioner's step-daughter opened the door for the police, the trial court did not decide whether there was consent to enter and the Supreme Court assumed there was no valid consent to enter the petitioner's home. 466 U.S. at 743, n. 1. In Welsh v. Wisconsin, the Supreme Court stated as follows:
Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries.
466 U.S. at 750. The court enumerated the few emergency conditions which it has recognized as justifying warrantless searches or arrests: United States v. Santana, 427 U.S. 38, 42-43 (1976) (hot pursuit of a fleeing felon); Schmerber v. California, 384 U.S. 757, 770-71 (1966) (destruction of evidence); Michigan v. Tyler, 436 U.S. 499, 509 (1978) (ongoing fire). Welsh v. Wisconsin, 466 U.S. at 750.
Article 14.03 of the Code of Criminal Procedure cannot be constitutionally applied to effect a warrantless entry to an individual's home to arrest him, unless consent is given to the entry by a person with authority to consent, or exigent circumstances exist. Whether consent is given or exigent circumstances exist must be decided on the facts of each case.
Subsections (a)(2) and (a)(3) of article 14.03 of the Texas Code of Criminal Procedure, which authorize warrantless arrests of persons who the peace officer has probable cause to believe have committed certain misdemeanors whether or not in the peace officers presence, are not facially unconstitutional. These provisions cannot be used to effect a warrantless entry to an individual's home to arrest him, unless the facts show that consent to the entry has been given or that exigent circumstances exist which justify the entry.
Very truly yours,
Attorney General of Texas
Executive Assistant Attorney General
Judge Zollie Steakley
Special Assistant Attorney General
Susan L. Garrison
Assistant Attorney General
FN1. Section 25.08 of the Penal Code has been amended by Senate Bill Nos. 887 and 1111 of the 70th Legislature, effective September 1, 1987. These amendments do not render your questions moot nor do they change our answer.
HB 823 Clarifies Right to Carry Handgun in Vehicle
NRA-ILA August 30, 2005
The following press release was issued today by State Representative Terry Keel regarding HB 823. TO: Media FROM: Terry Keel, State Representative, Austin
RE: FIB 823 by Keel, Effective 9/1/05 Clarifies Right to Carry Handgun in Vehicle While Traveling
PRESS RELEASE DATE: August 30, 2005
It is well established in Texas that a person who is traveling has a right to possess a handgun for personal protection. The practical problem with this right has historically been that courts have disagreed on the definition of "traveling". The legislature has likewise never defined "traveling" because a definition invariably has the unintended effect of unfairly limiting the term to a narrow set of circumstances.
FIB 823 becomes effective September 1, 2005, shoring up the right of citizens to carry a concealed handgun while traveling. There have been many inquiries to my office from citizens and media regarding the upcoming change in the law and what it means.
HB 823 provides for a legal presumption in favor of citizens that they are travelers if they are in a private vehicle with a handgun that is not in plain view, they are not otherwise engaged in unlawful activity nor otherwise prohibited by law from possessing a firearm, and they are not a member of a criminal street gang.
In plain terms, a law-abiding person should not fear arrest if they are transporting a concealed pistol in a motor vehicle. There is no longer the need for a law enforcement officer to apply a subjective definition of what constitutes "traveling" where the citizen is cloaked with the presumption per the terms of the new statute. Under those circumstances the citizen should be allowed to proceed on their way.
HB 823 represents the first time a presumption has been crafted in favor of a defendant in the modern penal code of Texas. The presumption applies unless the prosecution proves beyond a reasonable doubt that the facts giving rise to the presumption do not exist. If the state fails to prove beyond a reasonable doubt that the facts giving rise to the presumption do not exist, the jury must find that the presumed fact exists. By enacting this evidentiary standard in conjunction with the presumption, the legislation is intended to have the practical effect of preventing in the first place the arrest of citizens who meet the newly specified prerequisites of being a presumed traveler.
It should be noted that the very real problem of citizens having to prove their innocence after arrest by the assertion of their right to carry a firearm while traveling was the reason for a 1997 legislative change which replaced the "defense" of traveling with a classification of the statute of UCW as instead entirely "inapplicable" to a traveler. This change was well-intentioned but did not have the intended effect of protecting honest citizens from potential arrest because the term "traveling" was still left to individual police or judicial officials to define on a case-by-case basis. As a consequence, law-abiding citizens who availed themselves of their right to have a handgun white traveling continued to face arrest and often later prevailed only in a court of law after proving that they were indeed traveling.
In enacting HB 823, the 79th legislature, like all previous legislatures, declined to define traveling as a narrow set of particular circumstances. For example, to require someone to have an overnight stay in a journey in order to be classified as a traveler would be unfair to persons traveling great distances in one day. Likewise, a requirement that a citizen be "crossing county lines" may make no sense, such as in areas of Texas where travelers drive hundreds of miles without leaving a single county. Moreover, the ability of police to elicit such evidence and consistently apply its subjective terms on the street in a traffic stop has not proven practical, at all. The new statute instead focuses on a defined set of relevant, objective facts that are capable of being determined on the spot by law officers.
There are several additional important points that should he made in regard to the enactment of FIB 823 and its interface with current law. HB 823 does not give "everyone the right to carry a gun in a car". State and federal laws applicable to firearms must he noted in conjunction with the new statute's terms, particularly the limitation of the presumption to persons who are "not otherwise prohibited by law from possessing a firearm." For example, persons subject to an active protective order are not covered by the presumption, nor are persons with any felony conviction or even some misdemeanor convictions for offenses, e.g., family violence. The presumption is likewise inapplicable to persons associated with a criminal street gang, even if they have no conviction for any offense. These as well as all other existing limitations on firearm ownership and/or possession make the new statute inapplicable to persons covered by such prohibitions.
Furthermore, as stated in the statute, the presumption will not apply to persons who are otherwise engaged in any criminal conduct. This would include persons who are driving while intoxicated, driving recklessly. committing criminal mischief, or committing any other criminal offense outside that of a minor traffic infraction.
The presumption also does not apply where the gun is openly displayed.
The enactment of HB 823 was the culmination of study, committee hearings and debate by the House Committee on Criminal Jurisprudence. I am confident that the new law will assist law enforcement in doing its job while at the same time protecting law-abiding citizens from the threat of arrest for merely exercising their right to arm themselves while traveling----a right to which they are already entitled.
For anyone wishing to get rid of their SS#.
1-Fill out two copies of the withdrawal Form. http://www.ssa.gov/online/ssa-521.pdf
2- Take them to a SS office or mail Certified and get a clerk to stamp as received. They will try everything to talk you out of this. Don't let them. Leave one Copy for them.
3- Make two copies of the stamped received copy and make you an Affidavit of what you have done to this point.
4- Take two original Affidavits with attached SS withdrawal form to your County Recorders office and get both stamped as recorded into the County Records.
5- Send one copy to the Secretary of State or PERSON over the UNITED STATES SS Department and request your Recorded Documents be recorded into their records. Send this Registered Mail with Signature required.
6- After 30 days your unrebutted Recordings are now law and will stand where ever you need them.
7- Then if they or anyone claims you can't quit Charge them criminally with political rights violations and involuntary servitude.
You are converted to a corporation using Texas Rule of Civil Procedure 52
TRCP 52 ALLEGING A CORPORATION
An allegation that a corporation is incorporated shall be taken as true, unless denied by the affidavit of the adverse party, his agent or attorney, whether such corporation is a public or private corporation and however created.
Then your held responsible using Texas Penal Code Title 2 Chapter 7
Criminal Responsibility for Conduct of Another
7.23. Criminal Responsibility of Person for Conduct in Behalf of Corporation or Association
An individual is criminally responsible for conduct that he performs in the name of or in behalf of a corporation or association to the same extent as if the conduct were performed in his own name or behalf.
The Executive Order Above All Executive Orders by Paula Demers
On June 5, 1994, Clinton signed EO 12919 which gives the president executive (dictatorial) control over, well, everything. Once you understand that there is nothing which is being done on Capitol Hill for the benefit of the American people, you begin to understand that everything is being done to the detriment of the American people. Once all of the detrimental things which are being done to the American people from Capitol Hill reach critical mass, EO 12919 gives the president the powers of absolute rule.
According to the United States Constitution, Article 1, only Congress shall make federal law. However, since the "War and Emergency Powers Act" of 1933, every president has usurped lawmaking powers. Their "laws" are called Executive Orders (EOs). These EOs, not our Constitution, are what is governing America today. The "War and Emergency Powers Act" enables that the president to declare a national emergency, and thereby become a dictator. Presidents can also carefully choose their words and declare a "war" on anything, in order to give them dictatorial control. For example, the "War on Drugs" makes it possible to use federal authorities, such as FBI, FEMA, BATF, and the military against American citizens. A well-known example is Waco. Another example is Hurricane Opal.
After Florida was declared a nation emergency, the Federal Emergency Management Agency (FEMA) arrived on the scene and residents were placed under marshal law (restricted to the point of not going outside their door). When the federal government does this, it is going against the Constitution.
The "War and Emergency Powers Act" is an unconstitutional act on the part of our government, created so that presidents can bypass Congress, and do whatever they choose. It also makes it possible to do away with posse comitatus in cases of "emergency." Posse comitatus is what protects American citizens from the military being used against them. In Germany, the military was used against the German citizens. The German government also had its Gestapo to enforce the dictates of Hitler. Now, in an American "emergency," the military can be used against American citizens and the federal government has its own Gestapo in the form of the BATF, FBI, and FEMA.
These EOs have not been widely publicized. If they were, 250 million Americans would not tolerate it. But you can get copies of them. They are all printed in the U.S. Federal Register and have the force of law when activated by a president. You can contact your congressman for information on how to get copies of these EOs, or check your local library.
Here are a few examples of some of the EOs and their purposes:
10995--Federal seizure of all communications media in the United States;
10997--Federal seizure of all electric power, fuels, minerals, public and private;
10998--Federal seizure of all food supplies and resources, public and private and all farms and equipment;
10999--Federal seizure of all means of transportation, including cars, trucks, or vehicles of any kind and total control over all highways, seaports and water ways;
11000--Federal seizure of American people for work forces under federal supervision, including the splitting up of families if the government so desires;
11001--Federal seizure of all health, education and welfare facilities, both public and private;
11002--Empowers the Postmaster General to register all men, women and children in the United States of America;
11003--Federal seizure of all airports and aircraft;
11004--Federal seizure of all housing and finances and authority to establish Forced Relocation. Authority to designate areas to be abandoned as "unsafe," establish new locations for the populations, relocate communities, build new housing with public funds;
11005--Seizure of all railroads, inland waterways and storage facilities, both public and private;
11051--Provides FEMA complete authorization to put above orders into effect in times of increased international tension of economic or financial crisis (FEMA will be in control in case of "National Emergency").
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