Opinion
November 26, 2001
60 LAW OFFICERS Authority Jurisdiction 56 JUDGES
Louisiana C. Cr. P. Article 204 Louisiana R.S. 46:1802 Louisiana R.S. 13:2163 Louisiana R.S. 13:2507 Louisiana Attorney General Opinion #83-987
It is the opinion of this office that constables are within the definition of "peace officers" pursuant to La. C. Cr. P. Article 204 official comment (a) and La.R.S. 46:1802. More particularly, under La.R.S. 13:2163, the constables of the First and Second City Courts of New Orleans and their deputies are granted the powers of "peace officers". Further, the New Orleans police department is mandated to provide for one or more officers to execute the orders and decrees of the judge or judges pursuant to La.R.S. 13:2507.
Mr. Louis W. Ivon Judicial Administrator City of New Orleans, Traffic Court 127 South Broad Street New Orleans, LA 70118
Dear Mr. Ivon:
Please be advised that our office is in receipt of your opinion request wherein you asked:
Are the constables of First City Court and of Second City Court and their deputies "peace officers" within the meaning of La. C. Cr. P. Article 204 such that they may execute arrest warrants issued by the judges of the Traffic Court of New Orleans, including arrest warrants issued for persons who failed to appear in Traffic Court on state and municipal charges such as violations of La.R.S. 14:98.
Pursuant to La.R.S. 46:1802(7), which provides definitions for the clarification of commonly used terms, constables are included in the list of persons considered "peace officers". It states, "'peace officer' shall include commissioned police officers, sheriffs, deputy sheriffs, marshals, deputy marshals, correctional officers, constables, wildlife enforcement agents, and probation and parole officers."
Further, La. C. Cr. P. Article 204, which deals with execution of warrants, provides:
The warrant shall be directed to all peace officers in the state. It shall be executed only by a peace officer, and may be executed in any parish by any peace officer having authority in the territorial jurisdiction where the person arrested is found, or by any peace officer having authority in one territorial jurisdiction in this state who enters another jurisdiction in close pursuit of the person arrested.
Comment (a) of Article 204 likewise includes constables as "peace officers" who have the authority to execute warrants within their territorial jurisdiction. Specifically it states, "The term [peace officer] in its commonly accepted sense generally includes sheriffs, deputies, constables, marshals, city police who enforce public peace."
However, more specifically on point is La.R.S. 13:2163. This statute expressly states:
The civil sheriff for the parish of Orleans and the constables of the First and Second City Courts of New Orleans and their deputies, are hereby granted the powers of peace officers when carrying out the duties of the court, and are authorized to require incarceration of the subject involved in any of the city, parish or state prisons, precinct stations, or houses of detention in the parish of Orleans. They shall be exempt from liability for their actions in the exercise of this power in the same manner and fashion as liability is excluded generally for peace officers of this state and political subdivisions.
This provision reiterates the express power given by the legislature to constables in La. C. Cr. P. Article 204 and La.R.S. 46:1802.
However, this opinion in no way limits the authority of the New Orleans Police Department to perform this same duty. La.R.S. 13:2509 provides:
The city of New Orleans shall provide suitable facilities, rooms, furniture, equipment and supplies that may be required for the proper functioning of the court and violations bureau thereof; and the New Orleans police department shall assign and detail to the court one or more police officers to keep good order, and execute orders and decrees of the judge, or judges, thereof.
Therefore, it is the opinion of this office that constables are included in the definition of "peace officers" and likewise have the authority to execute warrants as are necessary, including those warrants of New Orleans traffic court.
Very truly yours,
RICHARD P. IEYOUB Attorney General
By: _________________________ JAMES L. PIKER Assistant Attorney General
JLP/vc/jy
Date Released: November 26, 2001
*1 OPINION NUMBER 83-897
December 13, 1983
77 — OFFICES-LOCAL MUNICIPAL 77-A — STATE OFFICES
A duly appointed secretary of a de facto board is entitled to compensation for services performed in accordance with statute.
R.S. 37:1586; R.S. 37:1588
Mr. J. Trent Williams Undersecretary Department of Commerce P.O. Box 44185 Baton Rouge, Louisiana 70804
Dear Mr. Williams:
Your inquiry of recent date addressed to Attorney General William J. Guste, Jr. has been directed to me for attention and reply.
I understand your question to be as follows:
Whether a duly appointed secretary of the Board of Examiners in Watchmaking would be entitled to his salary during the time period that the board was improperly constituted, i.e., more than one member appointed from a congressional district.
The members of the Board of Examiners in Watchmaking were appointed by the governor in accordance with R.S. 37:1582 and R.S. 37:1583. Three members of the board were appointed from the Fifth Congressional District apparently overlooking a one sentence requirement in R.S. 37:1582 which reads "there shall be no more than one member appointed or serving on the board from any one United States Congressional District".
I am informed that upon learning of the discrepancy and until such time as the board was properly constituted, the board voluntarily refrained from issuing all licenses and certificates which severely curtailed the board's revenues. During the time in question the secretary having been appointed according to R.S. 37:1585 continued to perform his duties as described in R.S. 32:1588. R.S. 37:1586 fixes the salary of the secretary at $3000 annually.
It is submitted that from the correspondence presented to me in telephone conversations with you and other interested parties that we have here a classic example of a de facto board as distinguished from a de jure board.
Our courts have long recognized the legal efficacy of a de facto officer or board where because of a legal deficiency the appointment of the officer or the institution of the board could be successfully challenged. Until challenged, the acts of the officer or board are considered valid acts. And the status of the affected officer or board could not be challenged collaterally but must be attacked directly.
State vs. Hargis (Sup.Ct.) 179 La. 623; 154 So. 628
State ex rel Floyd v. Hodges (Sup.Ct.) 165 La. 552, 115 So. 747
Michell vs. La. State Board of Optometry Examiners (La.App. 3) 146 So.2d 863 (1962)
Feinblum vs. La. State Board of Optometry Examiner (La.App. 1) 97 So.2d 657 (1957)
Fakier v. Picou (La.App. 1) 158 So. (2) 285 (1964)
And the cases cited therein.
Therefore, it is the opinion of our office that until as such time as the Board of Examiners in Watchmaking was legally constituted it was a de facto board whose acts were valid and that the secretary in question duly appointed and performing his duties according to law was certainly a de facto officer if not even a de jure officer and thus entitled to the compensation prescribed by R.S. 37:1586.
*2 If you have any further questions regarding this matter please contact our office.
Sincerely yours,
William J. Guste, Jr. Attorney General
By: Harry H. Howard Assistant Attorney General
La. Atty. Gen. Op. No. 83-897, 1983 WL 177318 (La.A.G.) END OF DOCUMENT