Angel v. State

740 S.W.2d 727, 1987 Tex. Crim. App. LEXIS 659, 1987 WL 905

• Court: Court of Criminal Appeals of Texas
• Decided: October 7, 1987
• Docket: 912-85
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant was convicted of theft of property valued between $200 and $10,000. V.T.C.A., Penal Code § 31.03(d)(4)(A) (1974). Punishment was assessed at confinement for five years in the Texas Department of Corrections. The Houston (14th) Court of Appeals affirmed, holding, inter alia, that city police officers have county-wide jurisdiction to make warrant-less arrests. Angel v. State, 694 S.W.2d 164, 170 (Tex.App.-Houston [1st Dist.] 1985).

We granted appellant’s petition for discretionary review to determine whether a Tomball city police officer, while patrolling outside the Tomball city limits, had authority and jurisdiction under Texas law¹ to make a warrantless arrest of appellant.² We will affirm.

I.

Shortly after 4:00 a.m. on August 29, 1983, Tomball City Police Officers Toombs and Vaughn were on routine patrol along the eastern edge of the Tomball city limits.³ While patrolling outside the city limits of Tomball but inside Harris County, they observed appellant driving a piece of heavy road paving equipment⁴ in the dark, without any lights and on a public road.

The officers stopped appellant and asked him for “some type of identification” and “what he was doing.” (R. IV-10). Appellant informed them “that he [appellant] worked for Bell Construction and that he was moving the vehicle or the backhoe to another job site.” (R. IV-10).⁵ The officers communicated with their dispatcher by radio and requested a check on appellant’s name and driver’s license number. Prior to receiving a response from the computer check, Officer Toombs completed questioning appellant and advised him to drive on the shoulder of the road because the vehicle had no lights. Appellant then resumed driving down the road.

As appellant drove away, the officers were informed by their dispatcher that the Department of Public Safety had an “open traffic warrant” on appellant. (R. IV-13). The officers again stopped appellant and waited for the dispatcher to confirm that the warrant was still valid. While waiting for confirmation, Officer Toombs “observed a red wire attached to the starter [of the tractor].” (R. IV-14). Based on his experience, Officer Toombs believed that the wire had been used to “hot wire” or “bypass the key switch” on the tractor. (R. IY-15). Meanwhile, the officers received confirmation that there were two warrants on appellant out of Walker County for speeding and failure to appear. Appellant was then placed under arrest “for the traffic warrants” and “for investigation of the possible theft.” (R. IV-16).

II.

Prior to trial, appellant filed a motion to suppress all evidence seized as a result of his detention, including the tractor and his oral statements.⁶ During a pre-trial hearing, appellant’s attorney argued that 1) the Tomball police officers were acting “outside the jurisdiction of [their] authority under [Article] 2.13 of the Code of Criminal Procedure,”⁷ 2) appellant was violating no laws when he was stopped, and 3) appellant’s oral statements following his arrest were not taken down “in compliance with Article 38.22 of the Code of Criminal Procedure.” (R. IV-34). The trial court suppressed all oral statements made by appellant at the time of his arrest. However, the trial court denied the motion to suppress insofar as it applied to the tractor.

III.

In its brief before this Court, the State challenges, for the first time,⁸ appellant’s standing to complain of his allegedly illegal arrest. We must first determine whether such a belated claim is possible.

In Wilson v. State, 692 S.W.2d 661 (Tex.Cr.App.1984), this Court held that the State could challenge, for the first time on appeal, a defendant’s standing to complain of an illegal search or seizure. Because the State raised the issue before the court of appeals in Wilson, supra, our holding must be understood to allow the State to challenge standing for the first time on direct appeal. Following the Supreme Court’s reasoning in Combs v. United States, 408 U.S. 224, 92 S.Ct. 2284, 33 L.Ed. 308 (1972), this Court recognized that standing was a substantive element of a defendant’s search and seizure claim, and the burden for establishing that element lies with the defendant. Wilson, supra, at 669. Therefore, we “no longer view[ed] the absence of a challenge to a defendant’s standing [on direct appeal] as a ‘failure’ of the government’s.” Id. However, different considerations apply on petition for discretionary review.

Our state constitution limits this Court’s discretionary appellate power to review of “a decision of a Court of Appeals in a criminal case as provided by law.” Tex. Const, art. V, § 5; see also Tex.R.App. Proc. 202(a). Our own rules of procedure further limit our review to those particular grounds raised in the petition and granted by this Court. Tex.R.App.Proc. 202(d)(4); see McCambridge v. State, 712 S.W.2d 499, 500 n. 2 (Tex.Cr.App.1986) (discretionary review strictly limited to ground raised and granted in petition); Eisenhauer v. State, 678 S.W.2d 947, 956 (Tex.Cr.App.1984) (Clinton, J., dissenting) (“Our grant of review was no broader than the ground presented_”). By doing so, we narrow our appellate focus to a particular issue, thus avoiding wholesale review of an entire case. See, e.g., McCambridge, supra, at 501 n. 6 (issue on voluntariness of consent not granted for review). Given these constitutional and procedural restrictions upon our review power, “our [discretionary] review is limited to those points of error decided by the courts of appeals, included in petitions for discretionary review and granted as grounds for review.” Arline v. State, 721 S.W.2d 348, 353 n. 9 (Tex.Cr.App.1986).

These principles require the parties to obtain a decision by a court of appeals on a particular issue before seeking review of that decision by this Court. By failing to present a court of appeals with an issue to decide, a party may waive the opportunity to litigate the same issue before this Court.

In the instant case, the State did not present the issue of standing to the Court of Appeals as an independent ground for upholding the trial court’s ruling on the motion to suppress. Consequently, the Court of Appeals did not decide whether appellant had standing to complain of any search or seizure violation. Without a decision by the Court of Appeals on that issue, this Court has nothing to accept for review regarding appellant’s standing. Therefore, we find that the State has waived the right to challenge appellant’s standing to complain of his detention, arrest and the subsequent seizure of the tractor.⁹

IV.

Returning to the ground for review granted by this Court, we begin by noting that appellant challenges the legality of his warrantless arrest on two distinct bases. First, he argues that Officer Toombs had no authority under state law to make a warrantless arrest. Second, he argues that even if Officer Toombs had authority for making a warrantless arrest, he acted outside his territorial jurisdiction by arresting appellant outside the Tomball city limits.¹⁰ We must first determine whether Officer Toombs had authority to make a warrant-less arrest.

A. Authority for Warrantless Arrest

The Court of Appeals held that Officer Toombs had no authority to make a war-rantless arrest of appellant for operating a tractor without lights because it did not constitute an offense under state law. Angel, supra, at 170. However, the Court of Appeals went on to find that “appellant was a ‘suspicious individual’ properly subjected to an investigatory stop.” Id. (relying upon Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). The Court of Appeals found that Officer Toombs, after releasing appellant, subsequently acquired cause for a second stop because of the discovery of traffic warrants, followed by the development of probable cause for a warrantless arrest upon discovering that the vehicle had been “hot-wired.” Id. The Court of Appeals also found that Officer Toombs had an independent basis for initially stopping appellant: to protect “public safety on the highways of Harris County,” regardless of the absence of any legal violation committed within Officer Toombs’ view. Id. at 170-71.

Appellant argues that the Court of Appeals correctly held that “it is not against the law to drive road-paving equipment without headlights.” Id. at 170. Relying upon that premise, appellant concludes that Officer Toombs’ subsequent discovery of evidence that the tractor was stolen was tainted by the initial unlawful stop.

The State argues that the Uniform Act Regulating Traffic on Highways, V.A.C.S., Art. 6701d, (hereinafter Uniform Act) provides that road-paving equipment must be operated with lights if operated at night. We agree.

Article XIV of the Uniform Act prescribes the equipment, including lighting, that must be installed on vehicles operating on public highways. V.A.C.S., Art. 6701d, §§ 108-139F (1977 & Supp.1986). “Road machinery” is excluded from those requirements, “except as herein made applicable.” Id. at § 108(c). Road machinery is thereafter included among those vehicles that must comply with the lighting requirements when such machinery is operated upon a state highway at any time from a half hour after sunset to a half hour before sunrise. Id. at §§ 109(a) & 122(e). Therefore, the Court of Appeals incorrectly held that “it is not against the law to drive road-paving equipment without headlights.” Id. at 170. Given the existence of such an offense, we must now determine whether Officer Toombs was authorized to make a warrantless arrest of appellant.

“Any peace officer is authorized to arrest without warrant any person found committing a violation of any provision of [the Uniform Act].” V.A.C.S., Art. 6701d, § 153 (1977). In addition, “[a] peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.” Art. 14.01, V.A. C.C.P. (1977) (emphasis added).¹¹ City police officers are peace officers. Art. 2.12(3), V.A.C.C.P. (Supp.1986).

In the instant case, Tomball City Police Officer Toombs observed appellant operate road machinery without proper lighting for more than one half hour prior to sunrise. Given these facts, Officer Toombs, as a peace officer, had probable cause to believe that a traffic offense had occurred in his presence or within his view. Therefore, under either Article 6701d, § 153, supra, or Article 14.01, supra, he was authorized to make a warrantless arrest of appellant.

After Officer Toombs stopped appellant, further probable cause developed with the discovery of traffic warrants and evidence that the tractor was stolen. However, we need not determine whether Officer Toombs was authorized to arrest appellant without a warrant upon these independent facts because the traffic offense alone was sufficient to authorize a warrantless arrest. See Vicknair v. State, No. 036-84 (Tex.Cr.App., Sept. 17, 1986, motion for reh’g pending) (not yet reported) (crack in tail light lens created probable cause to arrest); Williams v. State, 726 S.W.2d 99 (Tex.Cr.App.1986) (not yet reported) (parking on wrong side of street created probable cause to arrest).¹² Therefore, we hold that Officer Toombs had authority to make a war-rantless arrest of appellant. We express no opinion as to any alternative authority used by the Court of Appeals for upholding Officer Toombs’ warrantless arrest of appellant.

B. Jurisdiction

Article 6701d, § 153, supra, and Article 14.01, supra, seem to grant peace officers unlimited geographic jurisdiction for making warrantless arrests committed in their presence or within their view. Indeed, in the past, this Court has held that such statutes authorize a peace officer to make warrantless arrests for such offenses if committed anywhere in the State. See, e.g., Hurley v. State, 234 S.W.2d 1006, 1007, 155 Tex.Cr.R. 315 (1950). In fact, this Court has approved a city police officer’s warrantless arrest of a defendant under facts strikingly similar to the instant case. Winfield v. State, 163 Tex.Cr.R. 445, 293 S.W.2d 765 (1956) (approving arrest of defendant without warrant outside the city limits by city police officer for operating a motor vehicle upon a public highway at night without lights).

Applying Winfield, supra, it would seem that Officer Toombs acted within his territorial jurisdiction by arresting appellant in Texas for commission of a traffic offense in his presence or within his view. However, this Court has recently begun to reexamine the statutory basis for granting peace officers such broad territorial jurisdiction to make warrantless arrests. See Preston v. State, 700 S.W.2d 227 (Tex.Cr.App.1985).

In Preston, this Court analyzed the statutory origin of a campus peace officer's jurisdiction. Despite the existence of broad authority for peace officers to make warrantless arrests, see, e.g., Chapter 14, V.A.C.C.P. and Article 6701d, § 153, supra, we held that campus peace officers have authority to act only “while on the property under the control and jurisdiction of the institution of higher learning [which employed him] or otherwise in the performance of his duties.” Id. at 229 (quoting V.T.C.A., Education Code § 51.203 (1972)). That holding required this Court to recognize that statutes which confer upon a peace officer the authority to act may not necessarily define the geographic scope of that authority. That geographic scope, if absent from the statute granting authority to act, must find its source in some other statute.

In Article 6701d, § 153, supra, and Article 14.01, supra, the Legislature has obviously provided peace officers with authority to make warrantless arrests under certain circumstances. However, those statutes are silent as to the jurisdiction of a peace officer to make such warrantless arrests. Following our reasoning in Preston, the legislative expression of a peace officer’s jurisdiction must be found in some other statute or be controlled by common law. Therefore, to the extent that Hurley, supra, and its progeny hold that a peace officer can make warrantless arrests anywhere in the State, they are overruled.

After examining V.A.C.S., Arts. 998 & 999,¹³ the Court of Appeals found that those statutes controlled a police officer’s jurisdiction and held that city police officers have county-wide jurisdiction. Angel, supra, at 170. Because the city of Tomball is located within Harris County and Officer Toombs arrested appellant within Harris County, the Court of Appeals concluded that Officer Toombs acted within his jurisdiction. Id.

Appellant argues that the Court of Appeals in Love, supra, correctly decided that city police officers only have city-wide jurisdiction and thereby concludes that Officer Toombs exceeded his jurisdiction. The State argues that the Court of Appeals in the instant case correctly followed the statutory analysis in Lopez, supra, by holding that city police officers have county-wide jurisdiction.

The Legislature has provided that city police officers “shall have like powers, rights, authority and jurisdiction as are by said title vested in city marshals.” ¹⁴ V.A. C.S., Art. 998 (Supp.1986) (emphasis added). City marshals,¹⁵ “[i]n the ... arrest of offenders, ... shall have, possess and execute like power, authority, and jurisdiction as the sheriff.”¹⁶ V.A.C.S., Art. 999 (Supp.1986) (emphasis added). Therefore, at least in the “arrest of offenders,” city police officers have the same jurisdiction as sheriffs.

“Each sheriff shall be a conservator of the peace in his county...” Art. 2.17, V.A.C.C.P. (1977). A sheriffs jurisdiction, therefore, is county-wide. Because a city police officer’s jurisdiction for arresting offenders parallels a sheriff’s jurisdiction, see Arts. 998 & 999, supra, it appears that a city police officer’s jurisdiction is countywide.

In Love, the Court of Appeals rejected this construction, holding instead that “jurisdiction,” in the context of Articles 998 and 999, supra, only “refers to what the officer may do, not where he may do it.” 687 S.W.2d at 472 (citations omitted). We disagree.

Jurisdiction is a comprehensive term, covering a variety of legal principles. In that sense, a police officer’s jurisdiction can refer to either “the power, right or authority to interpret and apply the law” or “the limits or territory within which authority may be exercised.” Webster’s New Collegiate Dictionary 628 (5th ed. 1977). We must now determine which meaning the Legislature intended.

“[In the construction of all civil statutes,] words ... shall be given their ordinary meaning.” V.T.C.A., Government Code § 312.002(a) (Supp.1986). However, “[i]f a word is connected with and used with reference to a particular trade or subject matter or is used as a word of art, the word shall have the meaning given by experts in the particular trade, subject matter, or art.” Id. at § 312.002(b).

When speaking of a court’s “jurisdiction,” the term is quite broad and can have various definitions. See Black’s Law Dictionary 766 (5th ed. 1979) (listing various types of judicial jurisdiction, e.g., ancillary, pendant, subject-matter, in personam, diversity). However, when speaking of a peace officer’s “jurisdiction,” the term takes on a more specialized meaning, particularly when placed alongside the terms “power,” “rights” and “authority.” See Articles 998 & 999, supra. If this Court is to presume that the Legislature has used different terms to describe different acts, then jurisdiction must mean something other than “the power, right or authority to interpret and apply the law.” ¹⁷ In this sense, it is more logical that the Legislature included the term “jurisdiction” as a restriction on the geographic scope of a city marshal’s and city police officer’s power, rights and authority.¹⁸

This understanding of jurisdiction is also consistent with the context of its statutory use. See, e.g., Article 999, supra (“For the purpose of executing all writs and process issued from the corporation court, the jurisdiction of the marshal extends to the boundaries of the county in which the corporation court is situated.”) (emphasis added).¹⁹ Therefore, we hold that “jurisdiction,” in the context of Articles 998 and 999, supra, refers to the geographic scope of a peace officer’s power, rights and authority.

The Supreme Court reached this same conclusion in 1895 when construing the meaning of the term “jurisdiction” in Article 363, which preceded Article 999. Newburn v. Durham, 88 Tex. 288, 31 S.W. 195 (1895) (“jurisdiction” refers “to the territory in which such power or authority can be exercised”). Following the Supreme Court’s decision in Newburn, the Legislature has met numerous times without amending Articles 998 or 999 to include language expressly limiting a city police officer’s or city marshal’s jurisdiction for arresting offenders to the city limits.²⁰ Such inaction by the Legislature provides additional support for concluding that jurisdiction in Article 998 and 999 refers to geographic jurisdiction.

In Love, the Court of Appeals observed that the opinions of this Court have ignored the Supreme Court's holding in Newbum, supra, and have, instead, limited city police officers to city-wide jurisdiction. 687 S.W. 2d at 473. In particular, the Court of Appeals cited Buse v. State, 435 S.W.2d 530 (Tex.Cr.App.1968), Minor v. State, 153 Tex.Cr.R. 242, 219 S.W.2d 467 (1949), Irwin v. State, 147 Tex.Cr.R. 6, 177 S.W.2d 970 (1944), and Weeks v. State, 132 Tex.Cr.R. 524, 106 S.W.2d 275, 276 (1937). These cases do not support such a conclusion.

In Weeks, two city police officers stopped a driver after observing what “they thought were several cartons of beer.” 106 S.W.2d at 275. They stopped the car beyond the city limits, although they first observed the car within the city limits. Id. After finding that the Legislature had not given the officers any authority to make warrantless arrests for unlawful transportation of liquor, the Court also noted that “Article 999, R.C.S.1925, seems to limit the legal authority of peace officers to their own bailiwick.” Id. at 276. The Court based its reversal of the defendant’s conviction upon the dual conclusions that the policemen “exceeded their legal authority in making the arrest of the [defendant] without a warrant and in making the search of her car beyond the corporate limits of said city.” Id.

In Weeks, supra, the Court provided a gratuitous discussion of a peace officer’s jurisdiction under Article 999, supra, despite eventually deciding the case on an unrelated independent ground. The Court also did not discuss the precedential value of Newbum, supra, or the effect of the “power, authority and jurisdiction” clause in Article 999, supra. Furthermore, whatever persuasiveness that remained in Weeks, supra, on the issue of a police officer’s territorial jurisdiction was subsequently removed in Minor, supra.

In Minor, two city police officers observed a defendant speeding within the city limits. They pursued the defendant and caught him outside the city limits after his car slipped into a ditch. 219 S.W.2d at 467-68. The Court began with the premise that the officers acted legally while within the city limits. Id. at 469. As to their actions once outside the city limits, the Court held them likewise legal based upon the doctrine of hot pursuit. Id. at 470. However, the Court also quoted approvingly from Newbum, where the Supreme Court “therein laid down the doctrine that by virtue of our statutes the chief of police or city marshal has the same jurisdiction as the sheriff of the county in the prevention and suppression of crime.” Id.

More significantly, in responding to the defendant’s motion for rehearing, the Court criticized part of its own holding in Weeks, supra:

The opinion [in Weeks ] ... makes the statement that the authority to make the arrest terminated at the city’s boundary line. This general statement was not necessary to a decision of the case. We think it was an erroneous statement and should not be followed.

Id. at 471 (opinion on appellant’s motion for rehearing).

In Irwin, in the context of deciding a related search and seizure claim, the Court noted that the territorial jurisdiction of policemen was restricted to the “confines of the city.” 177 S.W.2d 970. The Court cited Weeks and other sources²¹ to support that claim. However, given the subsequent rejection of Weeks, see Minor, the precedential value of Irwin must be questioned.

Finally, in Buse, two city police officers, acting upon information given to them by a citizen, ventured outside their city limits and observed that a .defendant “had two yellow capsules in his right hand, between his thumb and forefinger.” 435 S.W.2d at 531. They then made a warrantless arrest of the defendant. The Court, relying upon Irwin, held “that the arrest and search of [defendant] by the city officers outside the jurisdictional limits of the city ... was un-lawful_” Id. at 532. However, given the earlier rejection of Weeks, which was the foundation for Irwin, the precedential value of Buse must also be questioned.²²

In Weeks, supra, and its progeny, this Court did not undertake a detailed examination of the source of a city police officer’s territorial jurisdiction. Consequently, their legal underpinnings are weak.²³ We find that the original construction of Article 999 by the Supreme Court in 1895, holding that city marshals have the same territorial jurisdiction as sheriffs, remains persuasive. Therefore, we hold that Articles 998 and 999 grant city marshals and city police officers county-wide jurisdiction to arrest offenders. To the extent that Weeks, supra, and its progeny conflict with this holding, they are overruled.

In the instant case, appellant was arrested within Harris County by a Tomball city police officer. Because Tomball is within Harris County, Officer Toombs was properly operating within his jurisdiction.

We affirm the judgment of the Court of Appeals.

WHITE, J., concurs in result. TEAGUE, J., dissents. DUNCAN, J., joins in part III and dissents to part IV.

1 . No federal constitutional question was included in our grant of review. Our decision only addresses state law. See Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983).

2 . We granted review because "the justices of a court of appeals have disagreed upon a material question of law necessary to its decision.” Tex.R.App.Proc. 200(c)(5). In the instant case, a panel of justices relied upon another panel's decision in Lopez v. State, 652 S.W.2d 512 (Tex.App.-Houston [1st Dist.] 1983) (Duggan, Smith and Levy, JJ.) (municipal police officers have county-wide jurisdiction), rev’d on other grounds, 708 S.W.2d 446 (Tex.Cr.App.1986) (opinion on second rehearing), to determine the territorial jurisdiction of city police officers. Angel, supra (Pressler, Murphy, and Draughn, JJ.). However, after the instant case had been decided, yet another panel of justices concluded that Lopez, 652 S.W.2d 512, was "in error.” Love v. State, 687 S.W.2d 469, 472 (Tex.App.-Houston [1st Dist.] 1985, pet. refd) (Evans, C.J., Cohen and Smith, JJ.) (municipal police officers have city-wide jurisdiction).

Appellant filed a motion for rehearing in the Court of Appeals, arguing that his case must likewise be in error. However, the Court of Appeals declined to resolve this conflict. See Angel v. State, 694 S.W.2d 164 (Tex.App.-Houston [1st Dist.], 1985) (opinion on rehearing) (Murphy, J., dissenting). We granted review to resolve this conflict.

3 . These facts are summarized from the evidence presented in the hearing before the trial court on appellant’s motion to suppress.

4 . Although called a “backhoe” throughout the trial, the vehicle actually was a tractor with a front-end loader and a backhoe attached. (R. V-47).

5 . Appellant did not testify during the hearing on his motion to suppress. Officer Toombs presented this information in the form of hearsay testimony. Neither the State nor appellant objected.

6 .The record actually contains three motions to suppress. Two of the motions are identical except for the cause numbers, which changed following reindictment of appellant, and were filed by the same attorney. The third motion was filed by appellant’s other attorney.

The first two identical motions do not cite any authority under state law (constitutional or statutory) for suppressing the evidence. The second motion cites the Fourth Amendment of the United States Constitution, Article I, § 9, of the Texas Constitution and Chapter 14 of the Code of Criminal Procedure as authority for finding appellant’s arrest illegal. However, no authority under state law (constitutional or statutory) is cited for suppressing the evidence seized as a result of the illegal arrest, e.g., Article 38.23, V.A.C.C.P. (1979) (mandating suppression of evidence obtained in violation of state or federal law).

Because no constitutional or statutory violation is present in the instant case, see discussion, post, we need not decide whether appellant waived whatever remedy under state law might have been available.

7 . Article 2.13, V.A.C.C.P. (1977), in pertinent part, provides: "It is the duty of every peace officer to preserve the peace within his jurisdiction." (emphasis added).

8 . In its brief before the Court of Appeals, the State only argued that no evidence obtained as a result of the alleged illegal arrest was admitted into evidence during trial, thus rendering harmless the trial court’s ruling on appellant’s motion to suppress.

9 . If the State had presented the issue of standing to the Court of Appeals and that court then decided the issue in appellant’s favor, the State would be required to file its own petition for discretionary review raising standing as a specific ground for review. A party should not be expected to seek discretionary review on an issue already decided in his favor. Cf. Wilson, supra (after court of appeals decided standing in State’s favor, appellant filed petition for discretionary review raising standing as ground for review).

10 . In the opening paragraph of his dissent, Judge Clinton would have it that this whole issue is moot [premature?] because the record is silent as to the corporate status of Tomball. And, while we find the appendix to his dissent to be informative and enlightening, we note that no person or thing, not the appellant, the State, the trial court, or the Court of Appeals, has ever questioned that status at any stage of the judicial process, nor will we at this late hour.

11 . These overlapping provisions seemingly authorize a peace officer to arrest a defendant without a warrant only for an offense actually committed. However, this Court has construed such statutes to require only that the peace officer have sufficient facts occur in his presence or within his view for him to reasonably conclude that an offense is being committed. Drago v. State, 553 S.W.2d 375, 377 (Tex.Cr.App.1977) (citing Soileau v. State, 156 Tex.Cr.R. 544, 244 S.W.2d 224, 225 (1951), affd. on reh'g, 244 S.W.2d 225).

12 . The State argues that Officer Toombs had independent authority under Article 18.16, V.A. C.C.P. (1977), to make a warrantless arrest of appellant and seize the stolen tractor "to prevent the consequences of theft.” However, the correctness of that authority was neither presented to nor decided by the Court of Appeals. Consequently, it was not preserved for review. See discussion, supra, at 729-730.

13 . Article 998, supra, provides:

The city or town council in any city or town in this State, incorporated under the provisions of this title may, by ordinance, provide for the appointment, term of office and qualifications of such police officers as may be deemed necessary. Such police officers so appointed shall receive a salary or fees of office, or both, as shall be fixed by the city council. Such council may, by ordinance, provide that such police officers shall hold their office at the pleasure of the city council and for such term as the city council directs, as the city council may require. Such officers shall have like powers, rights, authority and jurisdiction as are by said title vested in city marshals. Such police officers may serve all process issuing out of a corporation court anywhere in the county in which the city, town or village is situated. If the city, town or village is situated in more than one county, such officers may serve the process throughout those counties.

(emphasis added).

Article 999, supra, provides:

The marshal of the city shall be ex officio chief of police, and may appoint one or more deputies which appointment shall only be valid upon the approval of the city council. Said marshal shall, in person or by deputy, attend upon the corporation court while in session, and shall promptly and faithfully execute all writs and process issued from said court. For the purpose of executing all writs and process issued from the corporation court, the jurisdiction of the marshal extends to the boundaries of the county in which the corporation court is situated. If the corporation court is in a city which is situated in more than one county, the jurisdiction of the marshal extends to all those counties. He shall have like power, with the sheriff of the county, to execute warrants; he shall be active in quelling riots, disorder and disturbance of the peace within the city limits and shall take into custody all persons so offending against the peace of the city and shall have authority to take suitable and sufficient bail for the appearance before the corporation court of any person charged with an offense against the ordinance or laws of the city. It shall be his duty to arrest, without warrant, all violators of the public peace, and all who obstruct or interfere with him in the execution of the duties of his office or who shall be guilty of any disorderly conduct or disturbance whatever; to prevent a breach of the peace or preserve quiet and good order, he shall have authority to close any theatre, ballroom or other place or building of public resort. In the prevention and suppression of crime and arrest of offenders, he shall have, possess and execute like power, authority, and jurisdiction as the sheriff. He shall perform such other duties and possess such other powers and authority as the city council may by ordinance require and confer, not inconsistent with the Constitution and laws of this State. The marshal shall give such bond for the faithful performance of his duties as the city council may require. He shall receive a salary or fees of office, or both, to be fixed by the city council. The governing body of any city or town having less than five thousand inhabitants according to the preceding Federal census, may by an ordinance, dispense with the office of marshal, and at the same time by such ordinance confer the duties of said office upon any peace officer of the county, but no marshal elected by the people shall be removed from his office under the provisions of this article.

(emphasis added.)

14 . Prior to August 28, 1967, the term "jurisdiction” was absent from Article 998. See V.A.C.S., Art. 998 (1963). However, in 1967 the Legislature amended Article 998, placing “jurisdiction" alongside the "powers, rights, and authority” city police officers shared with city marshals. Acts 1967, 60th leg., p. 1171, § 2.

15 . A city marshal is the ex officio chief of police. Id.

16 . We note that Article 999, supra, does not include the term "rights” as appears in Article 998, supra. However, we need not presently address the implications, if any, of such an omission.

17 . Indeed, if the Legislature understood "jurisdiction” to be synonymous with "power, rights and authority,” it would have had no reason to add the term "jurisdiction” to Article 998 in 1967. See n. 13, supra, at 733. Of course, courts will not presume that the Legislature has done a useless act. Hunter v. Fort Worth Capital Corp., 620 S.W.2d 547, 551 (Tex.1981).

18 . Note also that the Legislature granted city councils the power to expand the "duties” performed and the “powers" and "authority” possessed by a city marshal. Article 999, supra. The Legislature did not grant city councils the power to expand a city marshal’s "jurisdiction.” That omission only makes sense if the Legislature understood "jurisdiction" to mean something other than “power, rights [or] authority.”

19 . We acknowledge that Article 999, supra, also provides:

[A city marshal] shall be active in quelling riots, disorder and disturbance of the peace within the city limits and shall take into custody all persons so offending against the peace of the city and shall have authority to take suitable and sufficient bail for the appearance before the corporation court of any person charged with an offense against the ordinance or laws of the city.

(emphasis added). However, such language does not contradict our conclusion that Article 999 also grants city marshals county-wide jurisdiction to arrest offenders. By mandating that city marshals be "active in quelling riots, disorder and disturbance of the peace within the city,” the Legislature has only indicated its preference that "riots, disorder and disturbance of the peace within the city” be given priority over other violations of the law. Nonetheless, when expressly referring to jurisdiction, Article 999 grants city marshals, and therefore city police, the same county-wide jurisdiction to arrest offenders as granted to sheriffs. Thus, the Legislature, by not using exclusive language, left city marshals and police free to arrest offenders county-wide while still giving priority to enforcement of certain laws within the city. This construction, consistent with V.T.C.A., Government Code § 311.021(2) (Supp.1986), gives a reasonable effect to the entire statute.

20 . To the contrary, in 1967, the Legislature expressly expanded the county-wide jurisdiction of city marshals and police officers to include the additional purpose of executing writs and process from corporation courts. Acts 1967, 60th Leg., p. 1171, ch. 523, §§ 2 & 3. Previously, city marshals and police officers only had countywide jurisdiction "[ijn the prevention and suppression of crime and arrest of offenders." V.A. C.S., Art. 999 (1963).

21 . Ledbetter v. State, 23 Tex.App. 247, 5 S.W. 226 (1887); Peter v. State, 23 Tex.App. 684, 5 S.W. 228 (1887); Jones v. State, 26 Tex.App. 1, 9 S.W. 53 (1888); 8 Am.St.Rep. 454; 4 Am.Jur. p. 13, § 17. In Ledbetter, Peter and Jones, the Court of Appeals merely held that state statutes restricted a sheriffs power to execute a capias to his home county. That holding obviously does not support the far different conclusion that a city police officer only has city-wide jurisdiction. As for the tertiary sources cited, they have no precedential value whatsoever.

22 . No one in the majority has harbored even the slightest intention of casting aspersions upon the credentials or qualifications of those fine Judges participating in the Weeks and Buse decisions. Indeed it has been the intent of the majority to leave such pursuits to the judicial biographers, concentrating instead on objective and unempassioned legal analysis.

23 . Indeed, in Love, the confusion which has resulted from these cases led the Court of Appeals to request “[g]uidance" from this Court or the Legislature on the subject of a peace officer’s jurisdiction. 687 S.W.2d at 478 n. 3.