Does a Texas county sheriff have to keep a room set aside for videotaping DWI suspects?

TX AG Opinion GA-0731: Must a sheriff keep a dedicated room for videotaping DWI suspects?

Plain-English summary

The Kerr County Attorney explained that, under an uncodified 1983 law, the Kerr County Sheriff kept a room with videotape equipment for recording people arrested for driving while intoxicated, and asked whether the Sheriff had to keep maintaining that room and the equipment. The Sheriff wanted to dispose of the equipment and use the room for other purposes.

The law in question is section 24 of a 1983 bill amending the DWI offense (Act of May 27, 1983, 68th Leg., R.S., ch. 303, § 24). Section 24 requires each county with a population of 25,000 or more to purchase and maintain electronic devices capable of visually recording a person arrested for DWI, and lets the sheriff, with the commissioners court's approval, decide how many devices are needed.

Reading the plain language, the opinion concluded that section 24 requires the recording devices but does not require a dedicated room and does not specify where the equipment must be used. Because all of Kerr County's patrol vehicles were equipped with video recorders that could capture an arrested person, nothing in section 24 stopped the Sheriff from meeting the requirement with patrol-car cameras and using the room for other official purposes. If the county no longer needed certain equipment, the commissioners court could sell or dispose of it as surplus or salvage property.

The opinion also addressed a wrinkle: section 24 was never given an article number in the Revised Statutes, and the article it referenced (article 6701l-1) was later repealed. Relying on Cooper v. State, the opinion explained that section 24 was never repealed and remains in effect even though uncodified, and that repealing the referenced article did not change its meaning or scope.

Currency note

This opinion was issued in 2009. 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.

This opinion turns on an uncodified 1983 session law and population thresholds that may have shifted with later censuses, plus surplus-property rules that may have been amended. Confirm current law before relying on anything below.

Who this opinion affected (as of 2009)

County sheriffs in counties of 25,000 or more: The opinion explained that they had to buy and maintain devices able to visually record DWI arrestees, but were not required to keep a dedicated room and could use patrol-car cameras to satisfy the requirement.

County commissioners courts: The opinion noted that the commissioners court approves how many devices are needed and may sell or dispose of unneeded equipment as surplus or salvage property.

Anyone relying on the codified statutes alone: The opinion was a reminder that an uncodified session law (section 24) can still be binding even though a commercial publisher dropped references to it after a related article was repealed.

Common questions

Does the sheriff still have to record DWI arrests?
Yes, according to the opinion. Section 24 still required counties of 25,000 or more to maintain devices capable of visually recording people arrested for DWI.

But does it have to be a special room?
No. The opinion concluded the law requires the recording devices, not a dedicated room, and does not dictate where the equipment is used. Patrol-car cameras could do the job.

Can the county get rid of the old equipment?
The opinion said that if the county no longer needs certain video equipment, the commissioners court may sell or dispose of it as surplus or salvage property.

How can a law still apply if it was never codified?
The opinion relied on Cooper v. State to explain that section 24 was never repealed and stayed in effect even though it was never assigned a statute number and a publisher stopped printing it.

Background and statutory framework

Section 24 of the Act of May 27, 1983, 68th Leg., R.S., ch. 303 (1983 Tex. Gen. Laws 1568, 1605) requires counties of 25,000 or more to purchase and maintain electronic devices capable of visually recording a person arrested for DWI, referencing the then-existing article 6701l-1 and Penal Code section 19.05(a)(2). The opinion explained that section 24 was carried into the Revised Statutes without an article number, that article 6701l-1 was repealed in 1993 (Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.15) with the offenses now in Penal Code sections 49.04 and 49.07 (see Tex. Transp. Code Ann. § 521.342 revisor's note (Vernon 2007)), and that section 24 itself was never repealed and remains in effect (Cooper v. State, 961 S.W.2d 222, 225 n.2, 226 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd)). The repeal of the referenced article did not change section 24's meaning (Harris County Dist. Attorney's Office v. J.T.S., 807 S.W.2d 572, 572 (Tex. 1991)). Surplus equipment may be disposed of under Tex. Loc. Gov't Code Ann. § 263.152 (Vernon Supp. 2008).

Citations

Statutes:

• Act of May 27, 1983, 68th Leg., R.S., ch. 303, § 24, 1983 Tex. Gen. Laws 1568, 1605
• Tex. Penal Code Ann. §§ 19.05(a)(2), 49.04 (Vernon 2003), 49.07 (Vernon Supp. 2008)
• Tex. Transp. Code Ann. § 521.342 revisor's note (Vernon 2007); Tex. Loc. Gov't Code Ann. § 263.152 (Vernon Supp. 2008)
• Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.15, 1993 Tex. Gen. Laws 3586, 3704

Cases:

• Cooper v. State, 961 S.W.2d 222 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd)
• Harris County Dist. Attorney's Office v. J.T.S., 807 S.W.2d 572 (Tex. 1991)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0731
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0731.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

GREG ABBOTT

July 23, 2009

The Honorable Rex Emerson
Kerr County Attorney
Kerr County Courthouse
700 Main Street, Suite BA-103
Kerrville, Texas 78028

Opinion No. GA-0731

Re: Whether the Kerr County Sheriff is required to maintain a room in the jail dedicated to recording the interrogation of a person arrested for driving while intoxicated (RQ-0783-GA)

Dear Mr. Emerson:

You state that pursuant to an uncodified law the Kerr County Sheriff maintains a room with videotape equipment for recording persons who have been arrested for driving while intoxicated, and you ask whether he must continue to maintain the room and the recording equipment.[1] The law you inquire about was adopted in 1983 as section 24 of a bill amending provisions on the offense of driving while intoxicated. See Act of May 27, 1983, 68th Leg., R.S., ch. 303, § 24, 1983 Tex. Gen. Laws 1568, 1605. Section 24 provides in part:

(a) Each county with a population of 25,000 or more according to the most recent federal census shall purchase and maintain electronic devices capable of visually recording a person arrested within the county for an offense under Article 6701l-1, Revised Statutes, or ... [Penal Code section 19.05(a)(2)].

(b) The sheriff of the county shall determine upon approval by the county commissioners court the number of devices necessary to ensure that a peace officer arresting a defendant for an offense listed in Subsection (a) of this section may visually record the defendant's appearance within a reasonable time after the arrest.

Id.

The Sheriff believes that section 24 "is no longer applicable to require him to maintain the dedicated room or equipment."[2] He seeks authority to dispose of the equipment and use the room for other law enforcement purposes. Requestor's Brief at 2.

Section 24 by its plain language requires counties with a population of 25,000[3] or more to purchase and maintain electronic devices to make visual recordings of certain arrested persons. It does not require a county to maintain a room dedicated to this purpose,[4] nor does it specify the location where the equipment is to be used. You state that all of Kerr County's patrol vehicles are equipped with video recording devices, which presumably "are capable of visually recording a person arrested within the county" for driving while intoxicated. Act of May 27, 1983, § 24(a), at 1605; see Request Letter at 2. Nothing in section 24 prohibits the Sheriff from placing the required video recording devices in patrol cars and using the room for other official purposes.[5]

"[S]ection 24 has not been repealed" and remains in effect "even though it has not been codified." Cooper v. State, 961 S.W.2d 222, 225 n.2, 226 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd). The Legislature did not give section 24 an official article number in the Revised Civil Statutes. See Act of May 27, 1983, § 24 n.16, at 1605. The text of section 24 was carried forward into the Revised Statutes and placed immediately following article 6701l-1. See id.; see also Cooper, 961 S.W.2d at 225 n.2, 226 (setting out the history of section 24). In 1993, the Legislature repealed article 6701l-1 in a bill amending statutes on driving while intoxicated. See Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.15, 1993 Tex. Gen. Laws 3586, 3704.[6] The substance of the offenses defined by article 6701l-1 is now found in Texas Penal Code sections 49.04 and 49.07. See TEX. TRANSP. CODE ANN. § 521.342 revisor's note (Vernon 2007); see also TEX. PENAL CODE ANN. §§ 49.04 (Vernon 2003), 49.07 (Vernon Supp. 2008). The Legislature did not repeal section 24, although West Publishing Company omitted references to this provision after article 6701l-1 was repealed. See Cooper, 961 S.W.2d at 225 n.2, 226. The repeal of article 6701l-1 did not change the meaning and scope of section 24. See Harris County Dist. Attorney's Office v. J.T.S., 807 S.W.2d 572, 572 (Tex. 1991) (when a referenced statute is repealed, the meaning of the referencing statute does not change, absent clear legislative intent to the contrary). The requirements of section 24 remain in effect.

SUMMARY

Section 24 of the Act of May 27, 1983, 68th Leg., R.S., ch. 303, requires counties with a population of 25,000 or more to purchase and maintain electronic devices to make visual recordings of persons arrested within the county for the offense of driving while intoxicated. Section 24, which remains in effect, does not require a county to maintain a room dedicated to videotaping the arrested persons, nor does it specify the location where the equipment is to be used.

Attorney General of Texas

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee

[Footnote 1: Request Letter at 1-2 (available at http://www.texasattorneygeneral.gov).]

[Footnote 2: Requestor's Brief at 2 (attached to Request Letter, available at http://www.texasattorneygeneral.gov).]

[Footnote 3: The population of Kerr County was 28,780 in 1980 and 43,653 in 2000. See U.S. CENSUS BUREAU, TEXAS POPULATION OF COUNTIES BY DECENNIAL CENSUS: 1900 to 1990; U.S. CENSUS BUREAU, STATE & COUNTY QUICKFACTS.]

[Footnote 4: We are unaware of any law imposing this requirement on a county sheriff.]

[Footnote 5: If the county no longer needs certain video recording equipment, the commissioners court may sell or otherwise dispose of it as surplus or salvage property. See TEX. LOC. GOV'T CODE ANN. § 263.152 (Vernon Supp. 2008).]

[Footnote 6: Another 1993 enactment amended article 6701l-1. See Act of May 29, 1993, 73d Leg., R.S., ch. 886, § 8, 1993 Tex. Gen. Laws 3515, 3523. Article 6701l-1 as amended in 1993 was repealed in 1995. See Act of May 29, 1995, 74th Leg., R.S., ch. 318, § 63, 1995 Tex. Gen. Laws 2734, 2755.]