Untitled Texas Attorney General Opinion ( 1944 )

c
OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Zonorsblc 2. 7:. i3urkhalter
~,.cting
County Attorney
Throckmorton, Texas
Cear Sir:
Re :Lasooaftioq of liquor
sei&d.by shsriff in a
dry areaunder Texas
Liquor Control Ace,
,,.,
you have requested the/opinion.of this deo;rt-'
ment concerning the!disgositionof,intoxicating liquors
seized by a sheriff in a dry area.,->
?Wthink the question
is answered by the follo;ring.?rwisions of th.:!
Texas Lirluor
::ontrolAct (Articles 666 and 661, YemoB's :;nnotatxiPenal
i:odaof Texas, as amended):
rlrticlo66&3a;, .,, ~._ '.
"The fol$owihg definitions of.&rds and
terms shall Opply as usbd Sh this Act:
'!I
r'~lcoholic"Bevra~s'.``ha;fl
mean alcohol
and B``-"Bevera~e':con'ta~ni~morethan one-half
of,,bneper:,.cent
of aldohc$ by volume which is
c,gpabX'e'@@us,e
for bov=gaagepurposes, either
aloac or wh@'diluted.
‘1..
‘````AJ&t3ileverage * shall tilean
and refer
to anp%alcoh 'ic beverage manufactured, distri-
buted, bu@ r sold, bottled, rectified, blanded,
treated, fortified, mixed, processed.,warehoused,
'stored,possessed, imported, or transported in
Violation of this Act, or on which any tax iaposed
by the laws of this State has not been paid and the
tax stamp affixed thereto; and any alcoholic beverage
Gossessed, kapt, stored, owned, or imported with int,?nt
to manufacture, sell distribute, bottle rectify,
~;onorabloD. ::t.
Surkhaltar, ::age2
blond, treat, fortify, nix, process, Warehouse,
sto.r3,or transport in violation of the provi-
sions of this act.?'
Article 666-29, as annndsd:
!'(a) iiff room, building, boat, structure,
or place of any kind whsre alch,oholicbdvsrages
are sold, bartered, manufactured, stored, pos-
sessed or consumsd in violation of t3ie hot,
or under oonditions and circumstances contrary to
the purposes of this Act, and all sxh bsv-
erages and all _rropertykept andussd in any such
place, hereby are declared to ba a common uui-
salice'and any person who maintains or assists
in ;;~aintainirg
suck common nuisance shall be
zuilty~of a violation of this Act. ~. . ."
Article 636-42, as amend-d:
"(3) All nlcoi:olicb:tvorarjeodeclriredby
this i&t to be a nuisance, and all illicit bev-
erages es derined by this Act, may be seized
with or wvitbouta warrant by an agent or em- .
?loyee of the Texas Liquor Control Doard, or by
any peace officer, and any parson round in the
possession or in charge thereor my be arrested
without a warrant. Wo alcoholic beverages or
articles so seized shall be replevied, but
shall be stor:d by the Board, or by the sheriff
or.t,heCounty wherein the seizure was made, to
be held for final action of the court as here-
after provided.
"(b) It shall be the duty of the Attorney
General, the District Attorney, and the County
Attorney, or any of them, when notified by the
officer making the seizure, or by the Texas
Liquor Control Board, that such seizure has beon
made, to institute a suit for forfeiture of such
alconolic beverages antiproperty, ouch suit to
be brought in the name or the State of Texas in
any court of competent jurisoiot$on in the county
Honora'bleD. W. Durkhaltsr, page 3
wherein such eeizure was made. Notice of pen-
dency of such suit shall be served in the man-
ner prescribed by law and the case shall ?rocaad
to trial as other civil cases. If upon the
trial of such suit it is found that alcobollc
beveragas or property are a nuisance or were
used or kept in maintaining a nuisanoe, under
tha terms of this Act, or that the alooholio
beverage is illicit, as dafined by this Act,
then the court trying said cause shall render
judeant forfeiting the same to the State of
Texas and ordering the same disposed of as pro-
viaed for by Section 30 of this Article. The
costs of suah proceedings shall be paid by the
Board, out of funds derived under the provisions
of said Section 30, or from any other fund avail-
able to the Doard for such purposs.
". . . ."
Article 666-30, as amentisd:
"ia) All alcoholic b-jveragesand the oon-
tainars thereof, equipment, and other yrogerty
forfeited to the State as nuisances, unless
otherwise herein provided, and all illicit bev-
erages and the containers thereof forfeited to
the state, shall be turned over to the Board for
public or private sale in such place or manner
as it may deem best; Irovided, that the Board
shall exercise diligent effort to obtain the
best available price for anything thus sold;
provided, further, that any bill of sale execut-
ed by the Board or Administrator shall convey a
good and valid title to the purchaser as to any
such property sold. The Board shall sell alco-
holic beverages only to the holders of qualified
permits or licenses. No alcoholic beverage un-
fit to be sold for public consumption or of
illicit manufacture, may be sold by the Board,
but are declared a nuisance per se and may be
destroyed.by the Board. The certificate of
any qualified ohemist shall be accepted by the
Board as evidence?of unfitness of such alco-
holic bevrages."
I
Honorable D. ;. Rurkhalter, page 4
In addition to these statutory provisions con-
c3rning tl:edisposition of liquor lawfully seized by an en-
foroemvnt officer, we would like to aall your attention to
the well recognized rule whicn has baen aptly stated in a
leading case as hollows:
'"It is not only the common practice, but the
requirement of the common law, that articles whiah
may tilpplyevidence of guilt of a party accused found
in his possession or under his control may be taken
in poss3ssion by the Officer officiating in making
the arrest; and, indeed, it is the duty of such officer
to take into his possession and retain such articles,
subject to the power and direction of the court of justice
having cognizance of the alleged aMme. This principle
is one of necessity in tha administration of the criminal _
law, and it is generally recognized by the oourts of the
country with few, if any, exceptions." Simpson VS. .y it.
John, 93 W.Y. 363. See also 11 A.L.R. 681, and 13 A.L.R. 1168.
:;e trust that ne.have answered your inquiry in a mannilr
that +I11 be of some aid to you.
Very truly yours,
ATTORNEY GXNERAL OF ThW
BY
Bugene Alris
Aesiatant
EA:D-d:ZH
APPROVED OCT. 10, 1944
s.-Carlos Ashley
FIRST ASSISTANT
AlTORNEY GENERAL