IN THE COURT OF CRIMINAL APPEALS

OF TEXAS


NO. 1529-99

GEORGE KENNETH SCHENEKL, Appellant

v.


THE STATE OF TEXAS



ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE SECOND COURT OF APPEALS

DENTON COUNTY


Meyers, J., delivered this concurring opinion, joined by Johnson and Holland, J.J..

CONCURRING OPINION



It ought to be emphasized that the search authorized by the statute in question is narrow in scope and may not exceed its stated purpose, absent reasonable suspicion or probable cause. As stated by the Court of Appeals in this case:

The enforcement provision authorizes detention only for the purpose of ensuring compliance with the registration and safety requirements. See Tex. Parks & Wild. Code Ann. 31.124. The intrusion is minimal in scope because the search may only be directed at the safety items listed in the statute. Further, while the boat must carry several safety and registration items, only a brief visual inspection is necessary to determine compliance. Therefore, the scope and length of the seizure favor a finding that the intrusion is minimal.



Schenekl v. State, 996 S.W.2d 305, 310 (Tex. App.-Fort Worth 1999) (emphasis added). An officer conducting a random safety and regulatory compliance inspection under Chapter 31 could inspect the boat for the following items:

This is not an unwieldy list. An officer could determine compliance with all of these requirements by a visual inspection in a matter of minutes; a search of interior compartments on the boat would not generally be necessary.

I would note that United States v. Villimonte-Marquez, 462 U.S. 579 (1983), and other case law involving searches of boats by federal customs agents or Coast Guard, are concerned with vessels that have access to the open seas. This fact was one of the most weighty considerations in Villamonte-Marquez. While we are not concerned in this case with vessels that have access to the open sea, the search authorized by the statute here is nonetheless reasonable in view of its limited scope, the brevity in which such search can be conducted, the lack of alternative means for enforcement, and the public interest in ensuring compliance with the water safety regulations.

With these comments, I concur in the judgment of the Court.



Delivered Oct. 25, 2000

Publish