Untitled Texas Attorney General Opinion ( 1951 )

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TXXE NEYGENERAL
OIFTEXA~
April 12, 1951
Hon. H. D. Dodgen
Executive Secretary
“Game, Fish & Oyster Commission
Austin, Texas
Opinion .No. V-1167
Re: Authority of game wardens
to seize and retain posses-
sion of guns -of game viola-
tors pending final .disposition
Dear Sir: of criminal charges.
~,You have requested the opinion of this office on the fol-
lowing:
(1) The right of a game warden to seize the gun of
a person found violating the game laws and arrested
therefor.
.(2) The right of a’game warden to hold the seized
gun as evidence to be presented in the defendant’s
trial.
,(3) The right of a game warden to hold a gun after
trial and pending appeal from conviction.
(4) The responsibility for return of the gun to
defendant, whether the court should order its return
or the game warden should act on his own initiative
in returning the gun.
It becomes necessary at the outset to determine the au-
thority of a “game warden”to make arrests, especially without
warrant, for violating “game laws,“since the right or authority
of,a“game w+:rd,en”to seize and hold weapons depends upon his
authority to mrlke arrests. As will be pointed out later in this
opinion, the seizure and holding of guns is an incid~ent to arrest
and prosecution for crime.
.Tloa’~H.‘D. Dodgen; V-1167, Page 2.
‘``Nowhere do the statutes of Texas in specifics terms
authorize ~“game wardens” to make arrests of any kind with
orwithout ~a warrant. “The statutes specifically authorizing ar-
,rest.without a warrant, or otherwise, by officers of the’Game,
Fish& Oyster’commission are statutes which were passed
,and:brought forward from the time that department was ,headed
by a.single Commissioner who apparently appointed ‘“deputies,”
and, thesedeputies were given authority along with the Com-
,miss~ioner to make arrests without warrant. See Articles 4018
and~4021, V.C.S., and Articles 905 and 914, V.P.C.
Articiec978f;‘V.P.C., was enacted in 1929 and abolish-
~edOhe,~office of Game, Fish & Oyster Commissioner and creat-
ed-the present ~Game, Fish & Oyster Commission, consisting of
,six members, with the authority, powers, duties, and functions
of the.former Commissioner, and provided for the delegation
to a*n ‘“executive secretary” of the executive duties of the Com-
mission in enforcing the Game and Fish laws. Section 6 of Arti-
cle 978f provides, in part, that
“Said executive secretary shall have authority
to appoint such heads of divisions and such Game and
~Fish W~ardens and other employees as in his discre-
,,tion may be deemed necessary to carry out and enforce
the laws of this State which it is the duty of said Game,
.Fish and Oyster Commission to carry out, execute and
administer, and to perform all other duties and services
,authorized and required to be performed by said Game,
Fish and Oyster Commission, and shall have the auth-
ority, powers, duties and functions heretofore vested
in Specia%~Deputy Game, Fish and Oyster Commissioners
and other employees of the Game, Fish and Oyster Com-
missioner.” (Emphasis supplied.)
‘The authority of the Game and Fish Wardens vests from
~the executive secretary through whom the Commission may perform
its dutie,s and is therefore the same authority the Commission has
in regard to the right to arrest violators of the game laws of Tex-
as. By virtue of Articles 4018 and 4021, V.C.S., and Articles
‘905 and, 914, ‘V.P.C., ,the deputies of the Game, Fish and Oyster
~Commissioner had the same authority as the Commissioner in
regard to the right to arrest a violator of the game laws of Texas.
Consequently, the authority of the Game and Fish Wardens would
309
‘?Ion,. +I,‘D. Dodgen, V-1167, Page 3.
:bethe same as the authority of those deputies as given in the
four above-~cited articles, It follows that ‘Game and Fish War-
dens are authorized to arrest without warrant persons found
violating any of the Game, Fish and Oyster laws of Texas.
Article 401~8, V.C.S., provides:
“The duties of the Commissioner shall be in
the execution of the laws relating to game, fish,
oyster and marine life, and such further duties as
are .imposed upon him by legislation. In the execu-
tion of these laws he shall exercise the power and
authority gi~ven to sheriffs. . . . The Commissioner,
or any of his deputies, may arrest without warrant
anyone found vioIating any of the fish, game or oyster
laws of Texas, and shall have the same right to exe-
cute original process as sheriffs.” (Cf. Art. 905,
V.P.C.)
Under this statute, the game warden has the s.ame powers
~&n&duties of arrest in cases of violation of game statutes as the
sheriff has in regard to the violation of other penal statutes of the
State of Texas.
The right of a law enforcement officer to search for and
seize property under a search warrant is regulated by the pro-
visions of Articles 304-332, V.C.C.P. We infer, however, that
‘you are inquiring about the right of a game warden.to seize’the
gun of a violator of the game laws who is arrested~without a
,warrant, and without the issuance of a search warrant. The fol-
lo$+ng”rule is stated in Agnello v. United States, 269 U.S. 20,
W(1925):
“The right without a search warrant contem-
poraneously to search persons lawfully arrested
while committing crime and to search the place where,
,the arrest is made in order to find and seize things
connected with the crime as its fruits, or as the means
by which it was committed, as well as weapons and
other things to effect an escape from custody, is not
.to be doubted .” !
‘This rule has been approved and followed in a number
H. D. Dodgen,V-1167, Page 4.
of Texas cases. ~West v. State, ll,O Tex. Grim. 290, ~8 S.W.2d
119 (1928); Reynolds v. State, 106 Tex. Grim. 391, 293 S. W.
-,
,,178 ,(1927); .pllelton v. State, 110 Tex. Crim. 439, 10 S.W.2d~384
(1927). fin an annotation in 32 A.L.R. 681, which collates the
authorities on this point, the general rule is summarized as
follows:
“The right without a search warrant to search
the person of one lawfully arrested, and to seize
articles found on him or in his custody, such as
weapons, evidences of the crime charged, etc., is
well established.”
From these authorities, it is seen that a game warden
has the right to seize the gun of a person found violating the game
laws and arrested therefor if the gun or the defendant’s posses-
sion of it has an evidentiary bearing on the offense for which the
violator is arrested. It should be noted that the right is limited
to a search, contemporaneous with the arrest, of the person and-
of the place where the arrest is made.
If the game warden has obtained lawful custody of the
gun, it may be held and used as evidence in the trial of the per-
son arrested. Goodwin v. State, 121 Tex. Crim. 335, 38 S.W.2d
806 (1930). -It is stated in Gurski v. State, 93 Tex. Grim. 612,
6~14, 248 S.W. 353, 355 (1923) that ““The officers making the ar-
rest of the appellant . . . had the right to take from his posses-
sion any property found thereon and hold it for prope~r disposi-
tion, and the law authorized its use against him in evidence, if
relevant, to any issue in the case.”
The question of the right to possession of property
taken for use as evidence pending trial of the criminal charge
has been raised in only a few cases. Decisions which are bas-
ed on specific statutory provisions are not relevant ,here. From
,the decided cases, which have been collected in annotations in
ll~A..L. R.. 681 and 13 A.L.R. 1168, the conclusion may be drawn
that the officer has a right to retain possession of the proper-
ty until its evidential purpose has been served, unless he is
order&by a court of competent jurisdiction to surrender its
custody. Welchek v. State, 93 Tex. Grim. 271, 247 S.W. 524
(1923), involved a s.eizure .of intoxicating liquor, which was
regulated by specific statutory provisions, but the following
language is applicable to other situations as well:
311
Hon:YH. D.Dodgen, V-1167, Page 5.
“The detection of crime and the punishment of
criminals~ and the consequent preservation of the
,lives, liberty, peace, and property of the law-abiding
part of organized society is one of the most impor-’
tant fnnctions of government, and it not infrequently
happens that in the pursuit of this function the rights
of the individual citizen must endure for a season’
when there is an apparent conflict between them and
the rights of the general public. One whose property
is stolen or whose house is burglarized or whose
property in other ways which might be instanced be-
comes necessarily a link in a chain of evidence might
find himself forced to leave such property in the’cus-
tody of the courts till the rights of the general public
to have present all testimony to develop a criminal’
case have been observed,unless he can satisfy the
authorities that he would produce such property in
court when its presence became necessary. It is
not beiieved that any court upon motion or petition
would d~eliver to an alleged criminal or those inter-
ested in its removal or destruction personal property
whose presence is deemed necessary to the develop-
ment.of a criminal case. . . .
I’. i’ ;~art must always be borne in mind, if there
appear the fact that said property by its physical
appearance upon the trial will aid the court in ar-
riving at a correct conclusion in a criminal case,
that, the owner’s right to the return thereof sbould
be hsl-d in abeyance until said property has served
the government, the whole people, by its appearance
in testimony. ” (93 Tex. Grim. at 279, 280, 247 S.W.
at 528.)
Since ,tbe gun might again be needed as evidence upon
aretrial of the case where a conviction is set aside on appeal
or motion, its possession may be retained until the case is final-
ly disposed of.
If, pending trial, the prosecuting authorities decide that
it will.not be necessary to introduce the gun in evidence on the
trial and have no intention of doing so, they should, of course,
return it to the owner. While some of the cases have spoken of
312
Hon, ‘H. D. Dodgen, V-1167, Page 6.
property held for evidence as being ins the custody of the law,
we do not deem it essential that a court. order its surrender
before it can be returned to the owner before introduction in
evidence. In this regard, there is a distinction between
property unlawfully in the possession of the defendant, such
as stolen or contraband property, and property the possession
of which is not in itself unlawful. Where the defendant’s posses-
sion of the gun was not unlawful, no order of court would be
necessary.
In instances where the gun has been seized for rea-
sons other than that of being held and used as evidence, the
gunshould be returned as soon as the reason for such seizure
has dissipated; For example, where the gun is seized merely
to prevent escape, it should be returned upon release of the
arrested person, under bond or otherwise.
Your third question relates to the right of a game
warden to hold a gun after trial and pending appeal, from con-
viction; After property is introduced in evidence, it becomes
a part of the official record of the case and can be taken from
the``custody of the court only with the court’s permission, pend-
ing final disposition of the case. Since a case in which an ap-
peal has been taken has not been finally disposed of, property
which has been introduced in evidence remains within the con-
trol of the court during the pendency of an appeal.
In your fourth question you ask whether the game
warden should act on his own initiative in returning the gun
or whether the court should order its return. From the an-
swers ,to your previous questions, the following conclusions
may be stated:
1. If the gun has not been introduced in evidence, the
arresting officer or the prosecuting attorney should return the
gun to~the owner, on his own initiative or upon demand ,by the
owner, as soon as it is determined that the gun is no longer
needed as evidence.
2. If the gun has been introduced in evidence, it can-
not be returned to the owner pending final disposition of the
case without a court order permitting its return.
3. After the case has been finally disposed of, the
313
Hon.,~H. D. Dodgen, V-1167, Page 7.
better practice i,s-to obtain the court’s permission for return
of propertywhich has been introduced in evidence. United
States v. Parker, 166 Fed. 137 (C.C.A. 2d 1908). Pezion
may be obtained either by the prosecuting authorities (includ-
ing the arresting officer) or by the owner.
4. Where the gun is not held as evidence, but merely
as an’incident of an arrest, no court order is necessary, of
course, to authorize its return to the owner.
This opinion does not apply to any situation where
the gun itself is subject to confiscation or forfeiture.
SUMMARY
+ game warden may seize a gun in the posses-
sion ‘of a person found violating the game laws of the
State and arrested therefor if the gun has an eviden-
tiary bearing on the offense charged. Where it is de-
termined by the prosecuting officer that the gun has
no evidentiary value, it should be returned to the
owner. A gun not held as evidence in a game law
violation, but as a mere incident of arrest, should be
returned upon release of the arrested party. in those
cases where the gun is introduced in evidence, it re-
mains in the custody and control of the court pending
appeal, and the court’s permission must be obtained
before it can be returned to the owner.
Yours very truly,
PRICE DANIEL
APPROVED: Attorney General
Ned McDaniel
State Affairs Division
Jesse P. Luton, Jr.
Reviewing Assistant
Charles’ D. Mathews Mary K. Wall
First Assistant Assistants
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