Do U.S. Postal Service inspectors have arrest powers under Texas law?

TX AG Opinion GA-0608: Do both kinds of postal inspectors have Texas arrest powers?

Plain-English summary

Postal inspectors enforce federal postal crimes, but their federal authority does not let them enforce state criminal law. Texas, however, can grant federal officers some state law enforcement powers, and it has. Article 2.122(a)(6) of the Code of Criminal Procedure gives "Inspectors of the United States Postal Service" the state powers of arrest, search, and seizure as to felony offenses under Texas law (while specifying they are not state "peace officers"). The Bexar County Criminal District Attorney asked whether that 1985 grant covers inspectors of both the United States Postal Inspection Service (USPIS) and the United States Postal Service, Office of Inspector General (USPS-OIG), an independent unit established in 1997.

The Attorney General concluded it covers both. Reading the statute by its plain language, article 2.122(a)(6) grants the authority to inspectors of the Postal Service without regard to which internal department or unit employs them. The USPS-OIG did not exist in 1985, but its inspectors are still "Inspectors of the United States Postal Service," and Postal Service rules confirm that USPS-OIG and USPIS inspectors exercise the law enforcement functions postal inspectors held generally in 1985 (the OIG investigating postal-employee misconduct including mail theft, and the Inspection Service investigating violations by all other persons). So both groups carry the state powers of arrest, search, and seizure that article 2.122(a)(6) confers.

Currency note

This opinion was issued in 2008. 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.

Article 2.122 of the Code of Criminal Procedure and the federal postal regulations in title 39 of the Code of Federal Regulations may have been amended since 2008. Confirm the current statute and regulations before relying on this analysis.

Who this opinion affected (as of 2008)

Prosecutors and Texas courts: The opinion told them inspectors from both USPIS and USPS-OIG held the article 2.122(a)(6) state powers of arrest, search, and seizure for felony offenses, so an arrest or seizure by either could rest on that authority.

Postal inspectors (USPIS and USPS-OIG): The opinion confirmed that membership in either postal unit carried the same state felony arrest, search, and seizure powers under Texas law, while leaving intact the statute's statement that they are not state peace officers.

Defense counsel: The opinion resolved an argument that the 1985 statute predated the OIG and therefore might not reach OIG inspectors, concluding the plain language reaches inspectors of the Postal Service regardless of unit.

Common questions

Does a postal inspector's federal badge give state arrest power on its own?
No. The opinion noted postal inspectors' federal authority does not let them enforce state criminal laws (Santoni v. Potter). The state power comes from Texas granting it through article 2.122, not from federal law.

Are postal inspectors Texas "peace officers"?
No. Article 2.122(a) gives the listed federal investigators the specified state powers but says they "shall not be deemed peace officers." The opinion cited State v. Garza, which held designated federal agents can seize property tied to a state felony but are not peace officers under the forfeiture statute.

Why did it matter that the OIG was created after 1985?
A defendant could argue the 1985 grant only reached the inspectors who existed then. The opinion rejected that, reading "Inspectors of the United States Postal Service" by its plain terms to cover OIG inspectors too, since they are inspectors of the same Postal Service.

Background and statutory framework

Article 2.122(a) of the Code of Criminal Procedure grants named federal criminal investigators the state powers of arrest, search, and seizure as to felony offenses under Texas law, while providing they are not state peace officers (Tex. Code Crim. Proc. Ann. art. 2.122(a); see State v. Garza, 783 S.W.2d 198, 199-200 (Tex. 1989)). "Inspectors of the United States Postal Service" were added to the list in 1985 (id. art. 2.122(a)(6); Act of May 26, 1985, 69th Leg., R.S., ch. 543, § 1, 1985 Tex. Gen. Laws 2148). Postal inspectors' federal authority does not extend to enforcing state law (Santoni v. Potter, 369 F.3d 594, 599 (1st Cir. 2004); United States v. Sealed Juvenile 1, 255 F.3d 213, 217 (5th Cir. 2001)).

The USPIS and USPS-OIG draw their federal investigative authority from 18 U.S.C. § 3061, limited to laws about Postal Service property, the mails, and other postal offenses. The USPS-OIG was established in 1997 as an independent audit-and-investigation unit (39 C.F.R. § 221.3(b)(1); 5 U.S.C. app. 3 § 8G(f)) responsible for investigating postal-employee misconduct including mail theft (39 C.F.R. § 230.1(d)). Federal regulation 39 C.F.R. § 233.1 refers to inspectors of both units as "Postal Inspectors" and splits their primary responsibility: the OIG investigates violations by postal employees, and the Inspection Service investigates violations by all other persons. Construing article 2.122(a)(6) by its plain language to give effect to legislative intent (Tex. Natural Res. Conservation Comm'n v. Lakeshore Util. Co., 164 S.W.3d 368, 378 (Tex. 2005); Tex. Gov't Code Ann. § 311.011(a)), the opinion concluded the grant reaches both USPIS and USPS-OIG inspectors.

Citations

Statutes:

• Tex. Code Crim. Proc. Ann. art. 2.122(a), 2.122(a)(6) (Vernon Supp. 2007)
• Tex. Gov't Code Ann. § 311.011(a) (Vernon 2005)
• Act of May 26, 1985, 69th Leg., R.S., ch. 543, § 1, 1985 Tex. Gen. Laws 2148
• 18 U.S.C. § 3061 (2000)
• 39 C.F.R. §§ 233.1, 221.3(b)(1), 230.1(d) (2008)
• 5 U.S.C. app. 3 § 8G(f) (2000)

Cases:

• Santoni v. Potter, 369 F.3d 594, 599 (1st Cir. 2004)
• United States v. Sealed Juvenile 1, 255 F.3d 213, 217 (5th Cir. 2001)
• State v. Garza, 783 S.W.2d 198, 199-200 (Tex. 1989)
• Tex. Natural Res. Conservation Comm'n v. Lakeshore Util. Co., 164 S.W.3d 368, 378 (Tex. 2005)
• United States v. Gillyard, 726 F.2d 1426 (9th Cir. 1984)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0608
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2008/ga0608.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts may remain - the linked PDF is authoritative.

GREG ABBOTT

March 13, 2008

The Honorable Susan D. Reed
Bexar County Criminal District Attorney
Cadena-Reeves Justice Center
300 Dolorosa, Fifth Floor
San Antonio, Texas 78205-3030

Opinion No. GA-0608

Re: Whether article 2.122(a)(6) of the Code of Criminal Procedure, which grants certain state felony law enforcement authority to inspectors of the United States Postal Service, applies to inspectors of both the United States Postal Inspection Service and the United States Postal Service, Office of Inspector General (RQ-0628-GA)

Dear Ms. Reed:

You ask whether article 2.122(a)(6) of the Code of Criminal Procedure, which grants certain state felony law enforcement authority to inspectors of the United States Postal Service (the "Postal Service"), applies both to inspectors of the United States Postal Inspection Service (the "USPIS") and to inspectors of the United States Postal Service, Office of Inspector General (the "USPS-OIG").

Postal inspectors' federal authority to enforce postal criminal laws does not authorize them to enforce state criminal laws. See Santoni v. Potter, 369 F.3d 594, 599 (1st Cir. 2004) (holding that "[p]ostal inspectors are not authorized under federal law to execute a warrant or make an arrest for a state law offense"). State law may grant powers to enforce its laws to federal officials, however. See id.[2]

Article 2.122(a) of the Code grants to "named criminal investigators of the United States," some of the powers of a state peace officer, "the powers of arrest, search and seizure as to felony offenses only under the laws of the State of Texas." TEX. CODE CRIM. PROC. ANN. art. 2.122(a) (Vernon Supp. 2007).[3] "Inspectors of the United States Postal Service" were added to the statute's list of authorized federal officers in 1985. Id. art. 2.122(a)(6); see also Act of May 26, 1985, 69th Leg., R.S., ch. 543, § 1, 1985 Tex. Gen. Laws 2148, 2148. Due to the later establishment of the USPS-OIG as an independent unit within the Postal Service, you wish to know whether postal inspectors of both the USPS-OIG and the USPIS possess the law enforcement authority Texas has granted the "Inspectors of the United States Postal Service" in article 2.122(a)(6) of the Code of Criminal Procedure. Request Letter, supra note 1, at 2-3.

I. Background

The USPIS and USPS-OIG derive their federal investigative authority from 18 U.S.C. § 3061 (2000) (granting investigative and other law enforcement powers to "Postal Inspectors and other agents of the United States Postal Service designated by the Board of Governors to investigate criminal matters related to the Postal Service and the mails").[4] That grant of authority is limited to "the enforcement of laws regarding property in the custody of the Postal Service, property of the Postal Service, the use of the mails, and other postal offenses" and the enforcement of certain other federal laws determined to "have a detrimental effect upon the operations of the Postal Service." Id. § 3061(b)(1)-(2).

Historically, postal inspectors' law enforcement authority included the investigation and suppression of certain offenses without distinction as to whether the offense was committed by a Postal Service employee or by a member of the general public. See, e.g., United States v. Gillyard, 726 F.2d 1426 (9th Cir. 1984) (investigation and arrest of postal employee for embezzlement from the mail); United States v. Brown, 716 F.2d 457 (7th Cir. 1983) (investigation leading to indictment of postal service clerk for conversion of postal funds); Ward v. United States, 316 F.2d 113 (9th Cir.), cert. denied, 375 U.S. 862 (1963) (investigation and arrest of railroad terminal employee for possession of stolen mail). The USPS-OIG was established in 1997 to, among other things: "[p]rovide an independent and objective unit to conduct and supervise audits and investigations relating to programs and operations of the Postal Service." 39 C.F.R. § 221.3(b)(1) (2008); see also 5 U.S.C. app. 3 § 8G(f) (2000). To that end, the USPS-OIG is responsible for "detecting and preventing fraud, waste, and abuse in the programs and operations of the Postal Service, [and] investigating all allegations of violations of postal laws or misconduct by postal employees, including mail theft." 39 C.F.R. § 230.1(d) (2008). The USPS-OIG and its inspector general have "oversight responsibilities for all activities of the Postal Inspection Service." Id. §§ 221.3(b)(4), 230.1(e).

Title 39, section 233.1 of the Code of Federal Regulations, entitled "Arrest and investigative powers of Postal Inspectors," sets forth certain authority of inspectors of the USPIS and inspectors of the USPS-OIG, referring to both as "Postal Inspectors." Id. § 233.1(a). While recognizing their common authority to enforce laws related to the mails, the section circumscribes the primary responsibility of the USPS-OIG and the USPIS:

(b) Limitations. The powers granted by paragraph (a) of this section shall be exercised only--

(1) In the enforcement of laws regarding property in the custody of the Postal Service, property of the Postal Service, the use of the mails, and other postal offenses. With the exception of enforcing laws related to the mails:

(i) The Office of Inspector General will investigate all allegations of violations of postal laws or misconduct by postal employees, including mail theft; and

(ii) The Inspection Service will investigate all allegations of violations of postal laws or misconduct by all other persons.

Id. § 233.1(b).

II. Analysis

The goal of statutory construction is to ascertain and give effect to legislative intent. See Tex. Natural Res. Conservation Comm'n v. Lakeshore Util. Co., 164 S.W.3d 368, 378 (Tex. 2005). We derive the Legislature's intent primarily from the statute's plain language. Id. Generally, a statute's words are given their common meaning. TEX. GOV'T CODE ANN. § 311.011(a) (Vernon 2005). Article 2.122(a)(6) of the Code of Criminal Procedure grants certain law enforcement authority to "Inspectors of the United States Postal Service" without regard to the internal department or unit of the Postal Service employing such inspectors. See TEX. CODE CRIM. PROC. ANN. art. 2.122(a)(6) (Vernon Supp. 2007). Although USPS-OIG did not exist in 1985 when article 2.122(a)(6) was promulgated, the statute's plain language applies to an inspector of USPS-OIG as well as to an inspector of USPIS because they are both "Inspectors of the United States Postal Service." Id. And as the USPS-OIG has informed us, and as reflected in Postal Service rules, USPS-OIG and USPIS inspectors exercise law enforcement functions held by postal inspectors generally in 1985. See OIG Brief, supra note 4, at 1; see also 39 C.F.R. § 233.1(b)(1)(i)-(ii) (2008). Accordingly, we conclude that article 2.122(a)(6) of the Code of Criminal Procedure grants certain state powers of arrest, search, and seizure to both the inspectors of the USPIS and the inspectors of the USPS-OIG.

SUMMARY

Article 2.122(a)(6) of the Texas Code of Criminal Procedure grants certain state powers of arrest, search, and seizure to inspectors of the United States Postal Inspection Service and to inspectors of the United States Postal Service, Office of the Inspector General.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

Footnotes

[1] See Letter from Honorable Susan D. Reed, Bexar County Criminal District Attorney, to Honorable Greg Abbott, Attorney General of Texas, at 2 (Sept. 19, 2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

[2] See also United States v. Sealed Juvenile 1, 255 F.3d 213, 217 (5th Cir. 2001) (holding that arrest by federal customs agent for a state offense must be authorized by state law). In that case the Fifth Circuit determined that the customs agent was not a state peace officer according to article 2.122 of the Code of Criminal Procedure and hence did not have the authority to arrest for state traffic offenses. Id. The court further held, however, that state law granted the customs agent the authority to effect a "citizen's arrest" for a breach of the peace committed in the agent's presence. Id.

[3] Article 2.122(a) clarifies that while the named federal investigators have the state powers specified, they "shall not be deemed [state] peace officers." TEX. CODE CRIM. PROC. ANN. art. 2.122(a) (Vernon Supp. 2007). See State v. Garza, 783 S.W.2d 198, 199-200 & n.2 (Tex. 1989) (holding that article 2.122 gives designated federal agents the authority to seize property in connection with a state law felony, but are not "peace officers" under the forfeiture statute).

[4] See also Brief from Elizabeth P. Martin, General Counsel, Office of Inspector General, United States Postal Service, For Consideration By The Attorney General For The State Of Texas, at 1 (Oct. 22, 2007) (on file with the Opinion Committee) [hereinafter OIG Brief].