Untitled Texas Attorney General Opinion ( 1979 )

The Attorney General of Texas
October 23, 1979
MARK WHITE
Attorney General
Honorable William R. Porter Opinion No. MW-7 5
Morris County Attorney
500 Broadnax Re: Disposition of seized weapons
Daingerfield, Texas 75638 under article 18.19, Code of
Criminal Procedure.
Dear Mr. Porter:
You request our interpretation of the forfeiture provisions found in
article 18.19 of the Code of Criminal Procedure, V.T.C.S. This statute
provides in pertinent part:
(a) Weapons seized in connection with an offense
involving the use of a deadly weapon or an offense
under Penal Code Chapter 46 shall be held by the law
enforcement agency making the seizure, subject to
the following provisions, unless:
(1) the weapon is a prohibited weapon identified in
Penal Code Chapter 46, in which event Article 18.18
of this code applies. . .
. . . .
(d) A person convicted under Penal Code Chapter
46 is entitled to the weapon seized upon request to
the law enforcement agency holding the weapon.
However, the court entering the judgment of convicr
tion may order the weapon destroyed or forfeited to
the state for use by the law enforcement agency
holding the weapon if:
(0 the person does not request the weapon within
60 days after his release from jail or the date of the
judgment of conviction if he was not imprisoned; or
(2) the person has been previously convicted under
Penal Code Chapter 46; or
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Honorable William R. Porter - Page Two (NW-751
(3) the weapon is one defined as a prohibited weapon under Penal
Code Chapter 46.
(e) If the person found in possession of a weapon is convicted of
an offense involving the use of a deadly weapon or under Penal
Code Chapter 46, the court entering judgment of conviction may
order destruction of the weapon or forfeiture to the state for use
by the law enforcement agency holding the weapon.
You point out that section (d) is in conflict with section (e). Each section empowers
the court to order destroyed or forfeited a weapon seized in connection with an offense
under Chapter 46 of the Penal Code, following conviction of the person found in possession
of it. Subsection (d) permits the court to order forfeiture or destruction of a weapon only
where certain conditions exist, while subsection (e) attaches no conditions to the court’s
action. You wish to know how these conflicting provisions may be reconciled. The
confusion apparently results from the failure to revise a conforming amendment to the
Code of Criminal Procedure to precisely match changes made in Chapter 46 of the
proposed Penal Code between the 62nd and 63rd Legislatures.
We note initially that section (d)(3) is surplusage. Prohibited weapons are not
subject to the provisions of article 18.19, see article 18.19(a)(l), and are destroyed or
forfeited pursuant to article 18.18 of the Code of Criminal Procedure. Article 18.19 is
subject to the Code Construction Act, V.T.C.S. art. 5429b-2, which provides in part:
In enacting a statute, it is presumed that
. . . .
(2) the entire statute is intended to be effective.
Sec. 3.01. AlI parts of a statute should be harmonized, if possible. Citizens’ National Bank
of Hillsboro v. Graham, 4 S.W.2d 541 (Tex. 1928). Chapter 46 relates to the possession of
various types of weapons, but it does not create an offense specifically involving deadly
weapons. In our opinion, subsections (dl and (e) can be harmonized and each part can be
given effect by holding section (d) applicable to conviction under Chapter 46 of the Penal
Code and by holding section (e) applicable to convictions for an offense involving the use
of a deadly weapon. See Penal Code S 1.07(a)Ull (defining deadly weapon). In this way,
each section can be givensome effect. If section (e) were held to prevail over section (d),
then the provisions relating to forfeiture of a weapon would have no effect. Thus, the
court may order destruction or forfeiture of a weapon belonging to a defendant convicted
under Chapter 46 of the Penal Code only where one of the conditions enumerated under
article 18.19(d) is present. We note that this construction is consistent with the apparent
intent of the original draft of the Code. State Bar Committee on Revision of the Penal
Code, Texas Penal Code: A Proposed Revision at 451.
SUMMARY
Section (d) of article 18.19 of the Code of Criminal Procedure
applies to the forfeiture or destruction of weapons belonging to a
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Honorable William R. Porter - Page Three (m-75 1
defendant convicted under Chapter 46 of the Penal Code. Section
(e) applies to the forfeiture or destruction of a weapon belonging to
someone convicted of an offense involving the use of a deadly
weapon.
&hm.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Susan Garrison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
David B. Brooks
Jerry Carruth
Susan Garrison
Rick Gilpin
Bruce Youngblood
William G Reid
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