State v. Kurtz

Decision Date20 October 2004
Docket NumberNo. 1397-03.,1397-03.
Citation152 S.W.3d 72
PartiesThe STATE of Texas v. Matthew Wayne KURTZ, Appellee.
CourtTexas Court of Criminal Appeals

Lloyd D. Odle, Lewisville, for Appellant.

Emily Johnson-Liu, Asst. District Atty., McKinney, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

WOMACK, J., delivered the opinion of the Court, in which MEYERS, PRICE, JOHNSON, KEASLER, HERVEY, and COCHRAN, JJ., joined.

The question in this appeal is whether an officer of the police department of a city has authority to stop a person for committing a traffic offense when the officer is in another city within the same county. We hold that the officer does not have such authority.

Facts

On August 12, 2001, Steven Boyd, a police officer of the City of Plano, noticed a vehicle that was going west on a multi-lane, divided highway (State Highway 121). He saw the vehicle cross from the right lane onto the improved shoulder of the highway, where it traveled for several seconds. Then it moved unsteadily, from the shoulder to the right lane and back to the shoulder, several times. When the vehicle ultimately returned to the right lane of the highway, the officer stopped the vehicle and spoke to the driver, Matthew Kurtz. The officer saw and smelled evidence of intoxication, so he arrested the driver for driving while intoxicated. He took Kurtz to the Plano City Jail.

Procedural History

The Collin County Attorney charged Kurtz with DWI. Kurtz moved to suppress the evidence that the officer had obtained after the stop on the ground that it was obtained by illegal acts.1

The trial court concluded, "The only possible offenses Boyd may have initially observed Kurtz commit ... were traffic offenses, i.e., failure to maintain a single lane and driving on the improved shoulder of a highway. TEX. TRANSP. CODE ... §§ 545.060 and ... 545.058."

The court also found that the Plano officer stopped and arrested Kurtz in the City of Frisco.

The City of Plano and the City of Frisco are home-rule cities, each of which is located in both Collin and Denton Counties. Plano is south of Frisco. For a distance of less than a mile, the cities are contiguous. The trial court found that the boundary line of the cities is the center line of the highway on which Kurtz was driving. Although the east-bound lanes of the highway are in Plano, the west-bound lanes of the highway, where Kurtz was driving and where he was stopped, are in Frisco.

The trial court granted the appellee's motion to suppress evidence, and the State appealed. A divided panel of the Fifth Court of Appeals affirmed.2 We granted review.

Relevant Statutes

The general authority (and, in some circumstances, the duty) of peace officers to arrest without warrant are set out in Article 14.03 of the Code of Criminal Procedure. The portions of Article 14.03 that are most relevant to this particular case are:

14.03. Authority of Peace Officers

(a) Any peace officer may arrest, without warrant:

(1) persons found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony, violation of Title 9, Chapter 42, Penal Code, breach of the peace, or offense under Section 49.02, Penal Code, or threaten, or are about to commit some offense against the laws; .....

...

(d) A peace officer who is outside his jurisdiction may arrest, without warrant, a person who commits an offense within the officer's presence or view, if the offense is a felony, a violation of Chapter 42 or 49, Penal Code, or a breach of the peace. A peace officer making an arrest under this subsection shall, as soon as practicable after making the arrest, notify a law enforcement agency having jurisdiction where the arrest was made. The law enforcement agency shall then take custody of the person committing the offense and take the person before a magistrate in compliance with Article 14.06 of this code.

...

(g) A peace officer listed in Subdivision (1), (2), (3), (4), or (5), Article 2.12, who is licensed under Chapter 415, Government Code, and 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, except that an officer who is outside the officer's jurisdiction may arrest a person for a violation of Subtitle C, Title 7, Transportation Code, only if the officer is listed in Subdivision (4), Article 2.12. A peace officer making an arrest under this subsection shall as soon as practicable after making the arrest notify a law enforcement agency having jurisdiction where the arrest was made. The law enforcement agency shall then take custody of the person committing the offense and take the person before a magistrate in compliance with Article 14.06.

These portions of Article 14.03 refer to several other statutes. One is Article 2.12 of the Code of Criminal Procedure which, at the time that Officer Boyd stopped Kurtz, read, in part:

Art. 2.12. Who Are Peace Officers

The following are peace officers:

(1) sheriffs, their deputies, and those reserve deputies who hold a permanent peace officer license issued under Chapter 415, Government Code;3

(2) constables, deputy constables, and those reserve deputy constables who hold a permanent peace officer license issued under Chapter 415, Government Code;

(3) marshals or police officers of an incorporated city, town, or village, and those reserve municipal police officers who hold a permanent peace officer license issued under Chapter 415, Government Code;

(4) rangers and officers commissioned by the Public Safety Commission and the Director of the Department of Public Safety;

(5) investigators of the district attorneys', criminal district attorneys', and county attorneys' offices; .....

Another statute to which Article 14.03 refers is Article 14.06 of the Code of Criminal Procedure, which at the time the appellee was stopped, read:

Art. 14.06. Must take offender before magistrate

(a) Except as provided by Subsection (b), in each case enumerated in this Code, the person making the arrest shall take the person arrested or have him taken without unnecessary delay, but not later than 48 hours after the person is arrested, before the magistrate who may have ordered the arrest, before some magistrate of the county where the arrest was made without an order, or, if necessary to provide more expeditiously to the person arrested the warnings described by Article 15.17 of this Code, before a magistrate in a county bordering the county in which the arrest was made. The magistrate shall immediately perform the duties described in Article 15.17 of this Code.

(b) A peace officer who is charging a person, including a child, with committing an offense that is a Class C misdemeanor, other than an offense under Section 49.02, Penal Code, may, instead of taking the person before a magistrate, issue a citation to the person that contains written notice of the time and place the person must appear before a magistrate, the name and address of the person charged, and the offense charged.4

Article 14.03 also refers to "Subtitle C, Title 7, Transportation Code." The subject of Title 7 of the Transportation Code is "Vehicles and Traffic," and the subject of Subtitle C is "Rules of the Road." In Subtitle C are the sections that the trial court cited in its conclusions: Section 545.058 ("Driving on Improved Shoulder")5 and Section 545.060 ("Driving on Roadway Laned for Traffic").6

Discussion

The authority of a peace officer to arrest without warrant for an offense committed within the officer's presence or view when the officer is outside the officer's jurisdiction was significantly altered in 1995 by the act of the legislature that added Subdivision (g) to Article 14.03 of the Code of Criminal Procedure. The act limited the authority of peace officers to arrest without warrant in two ways:

(1) The act gave only five categories of peace officers the general authority to arrest without warrant for any offense committed within their presence or view when they were outside their jurisdictions. All other categories of peace officers were not given such extra-territorial authority to arrest without warrant. At this time, there appear to be thirty-three categories of peace officers who are not given such authority to arrest without warrant when they are outside their jurisdictions: three categories of "reserve" officers (reserve deputy sheriffs, reserve deputy constables, and reserve municipal police officers) if they do not hold a permanent peace officers license,7 and the thirty other categories of peace officers who are listed in Subdivisions (6) through (34) of Article 2.12.8

(2) From four of the five categories of peace officers who were given general authority to arrest without warrant for offenses committed within their presence or view when they were outside their jurisdictions, the act took away the authority to arrest for the traffic offenses that are violations of the Rules of the Road in the Transportation Code. Only rangers and officers of the Department of Public Safety were given authority to make an extra-territorial arrest without warrant for such offenses.

This act was very specific and clear in not giving police officers and marshals of cities, towns, and villages the authority to arrest without warrant for violations of the Rules of the Road that are committed in their presence or view when they are outside their jurisdictions. There is no room in Article 14.03(g) for us to find any authority for Officer Boyd of the Police Department of the City to Plano to arrest without warrant for a violation of the Rules of the Road when he was outside the city.

The State's argument on the issue of the officer's authority to arrest is that our decision in Angel v. State, 740 S.W.2d 727 (Tex.Cr.App.1987), "held that a city police officer's jurisdiction is county-wide."9 The 1995 statute says something...

To continue reading

Request your trial
88 cases
  • In re H.V.
    • United States
    • Texas Supreme Court
    • 11 April 2008
    ...State v. Cullen, 195 S.W.3d 696 (Tex.Crim.App.2006); Kothe v. State, 152 S.W.3d 54 (Tex.Crim.App. 2004); State v. Kurtz, 152 S.W.3d 72 (Tex. Crim.App.2004); State v. Steelman, 93 S.W.3d 102 (Tex.Crim.App.2002); Martinez v. State, 91 S.W.3d 331 (Tex.Crim.App.2002); State v. Perez, 85 S.W.3d ......
  • Kniatt v. State
    • United States
    • Texas Court of Appeals
    • 5 December 2007
    ...failure by a trial court to analyze or apply the law correctly will constitute an abuse of discretion." State v. Kurtz, 152 S.W.3d 72, 81 (Tex.Crim.App. 2004) (Holcomb, J., dissenting) (citing (State v. Ballard, 987 S.W.2d 889, 891 (Tex.Crim. 3. An extrajudicial source has typically been co......
  • York v. State
    • United States
    • Texas Court of Criminal Appeals
    • 29 June 2011
    ...to “arrests,” but with respect to a different part of the statute, we have held that “arrest” includes “detention.” State v. Kurtz, 152 S.W.3d 72, 79–80 (Tex.Crim.App.2004). 18. Tex.Code Crim. Proc. art. 2.12(3) (peace officers include “police officers of an incorporated city, town, or vill......
  • Brock v. State
    • United States
    • Texas Court of Appeals
    • 7 January 2016
    ...J., concurring). But a trial court has no discretion in determining what the law is or applying the law to the facts. State v. Kurtz, 152 S.W.3d 72, 81 (Tex.Crim.App.2004).C. DiscussionThe application portion of the jury charge instructed that the jury could find Brock guilty of the charged......
  • Request a trial to view additional results
10 books & journal articles
  • Arrests
    • United States
    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 1 - 2018 Contents
    • 17 August 2018
    ...police officer does not have authority to stop a person for a traffic offense in another city, even in the same county. State v. Kurtz, 152 S.W.3d 72 (Tex. Crim. App. 2004) (this also applies to most other peace officers under Art. 2.12 C.C.P.). Legislative amendment has now given a peace o......
  • Arrests
    • United States
    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 1 - 2019 Contents
    • 16 August 2019
    ...police officer does not have authority to stop a person for a traffic offense in another city, even in the same county. State v. Kurtz, 152 S.W.3d 72 (Tex. Crim. App. 2004) (this also applies to most other peace officers under Art. 2.12 C.C.P.). Legislative amendment has now given a peace o......
  • Arrests
    • United States
    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 1 - 2017 Contents
    • 17 August 2017
    ...police officer does not have authority to stop a person for a traffic offense in another city, even in the same county. State v. Kurtz, 152 S.W.3d 72 (Tex. Crim. App. 2004) (this also applies to most other peace officers under Art. 2.12 C.C.P.). Legislative amendment has now given a peace o......
  • Arrests
    • United States
    • James Publishing Practical Law Books Archive Texas Criminal Lawyer's Handbook. Volume 1 - 2014 Contents
    • 17 August 2014
    ...police officer does not have authority to stop a person for a traffic offense in another city, even in the same county. State v. Kurtz, 152 S.W.3d 72 (Tex. Crim. App. 2004) (this also applies to most other peace officers under Art. 2.12 C.C.P.). Legislative amendment has now given a peace o......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT