Untitled Texas Attorney General Opinion ( 1942 )

Honorable Bert Ford
Administrator
Texas Liquor Control Board
Austin, Texas
Opinion NO. o-4898
Re: Under Article 1, Section 44 of
the Texas Liquor Control Act is
the judgment ordering the sale
of a seized vehicle a necessary
part of the judgment of convlc-
tion of the defendant, and re-
lated questions?
Dear Sir:
Your letter of October 1, 1942, requesting the opln-
ion of this department on the questions stated therein reads
a3 follows:
"Article I, Section 44, of the Texas Liquor Con-
trol Act reads as follows:
"'It is further provided that if any wagon,
buggy, automobile, water or air craft, or ang
bther vehicle is used for the transportation of
any llllclt beverage or any equipxe:?tdesigned
to be used for Illegal manufacturing of illicit
heveragez, or any material of any kind which is
to be used in the manufacturing of illicit bev-
erages, such vehicle together with all such bev-
erages, equlpment,or material shall he seized with-
out warrant by any representative of the Board
or any peace officer who shall arrest any person
in charge thereof. Such officer shall at once
proceed against the person arrested and all prin-
cipals, accomplices, and accessories to such un-
lawful act, under the provisions of law, In any
court having competent jurisdiction; but zald
vehicle or conveyance shall be returned to the
owner upon execution by him of a good and valid
bond, with sufficient sureties in a sum double
the appraised value of the property, which said
Honorable Bert Ford - page 2 o-4898
be conditioned to return said property to the
custody of said officer on the day of trial to
abide judgment of the court, The court upon con-
viction of the person so arrested shall order the
alcoholic beverages disposed of as provided
in this Act, and unless good cause to the contrary
Is shown by the owner shall order the sale by pub-
lic auction of the property seized, and the officer
making the sale, after deducting the expenses of
keeping the property, the seizure, and the cost of
the ssle, shall pay all liens, according to priori.-
ties, which are established by intervention or
otherwise at said hearing or In other proceedings
brought for said purpose, as belt-gbona fide and
as having been cr,eatedwithout the lien or having
any notice that the carrying vehicle was being
used or was to be used for ill.egaltransportation
of liquor and shall pay the halance of the pro-
ceeds to the Board to be allocated as permit fees.
All liens against property sold under this Section
shall be transferred from the property to the pro-
ceeds of its sale. If, however, no one shall be
found claiming the team, vehicle, water or air craft,
or automobile, the taking of the zame, with dezcrlp-
tion thereof, shall be advertised in some newspaper
published In the city or county where taken, or if
there be no newspaper in such city or county, any
newspaper having circulation in the county once a
week for two (2) weeks and by handbills posted in-
three (3) public places near the place of seizure,
and if no claimant shall appear with ten (10) days
after the publlcatlon of the advertisement, the
property shall be aold and the proceeds after de-
ducting the expenses and costs shall he paid to the
Board to be allocated as permit fess.'
"The p~ovizions of Sectlon 44 ebove quoted are
not clear as to whether the judgment of the court MS
to sale of the zelzed vehicle muzt be a part of the
judgment of conviction, and it 1s further not clear
as to when said judgment of forfejtcre should be
entered. Your valued opinion is requested In res-
ponse to the following questions:
"1. Is judgment ordering the zale of the z&red
vehicle a necessary part of a ju3gment of conviction
of the defendant?
"2 . If judgment as to sale 1s not a necessary
part of the judgment of the conviction, then would
Honorable Bert Ford - page 3 o-4898
a judgment ordering sale be valid if entered at any
time during the term of court in which the defendant
has been convicted?
"3. If not answered In response to the previous
questions submitted, what limitation of time would
prevail after conviction as to judgment of forfel-
ture of the seized vehicle?"
In the first paragraph on page 2 of your letter you
inquire as "as to when said judgment of forfeiture should be
entered". The proceeding involved Fn the disposition of the
property seized under Article 1, Section 44 oftthe Texas Liquor
Control Act Is not a proceeding to forfeit. We direct your
attention to the langua e of the court in the case of Pharizs
v. Klmbrough 118 S.W. 72d) 661, where the court Is preferring
to the same kFnd of proceeding as Fs involved here and says:
"The proceeding Is therefore not to forfeit; but to enforce
the forfeiture thst has resulted under the statutes of the
conviction of unlawful transportation of intoxicating liquor,
in the commission of whLch offense the automobile was used
. . . .f,
It will be noted that Article 1, Section 44 of the
Texas Liquor Control Act, supra, expressly provides in part:
"The court upon convlction of the person so arrested shall
order the alcoholic beverages disposed of as provided In this
Act and unless good cause to thecontrary Is shown by the own-
er, shall order the sale by public auction of the property
seized, and the officer making the sale, after deducting the
expenses of keeping the property; the seizure, and the cost
of the sale, shall pay all liens, according to priorities,
which are established by lnterventlon or otherwise at said
hearing or In other proceedings brought for said purpose, as
being bona fide and as having been created wIthout the lien
or having any notice thatthe carrying vehicle was being used
or was to be used for Illegal transportation of liquor and
stall pay the balance of the proceeds to the Board to be al-
located as permit fees. All liens against property sold un-
der this Section shall be transferred from the property to
the proceeds of its sale."
We do not think that the order of sale by public
auction of the property seized upon conviction of the person
so arrested of the criminal offense constitutes any part of
a judgment of conviction of the defendant. The Acts which
are defined and made criminal,offensez under the Texas Liquor
Control Act are offenses of a misdemeanor grade.
Article 766 Vernon's Annotated Code of Crlmlnal Pro-
r .
. .
Honorable Bert Ford - page 4 o-4898
cedure defines the constituents and requirements of a final
judgment in felony cases. While the first 8 subdivisions of
Article 766, supra, defining the constituents and requirements
of a final.judgment apply~to judgments in misdemeanor cases,
subdivisions 9 and 10, requiring the judgment to adjudge the
defendant guilty and specify that he be punished as then de-
termined by the jury, do not apply. However, in lieu of sub-
divisions 9 and 10, Article 783, Vernon's Annotated Code of
Criminal Procedure provides: "When the defendant is only
fined the judgment shall be that the State of Texas recover
of the defendant the amount of such fine and all costs of the
prosecution, and that the defendant, If present, be committed
to jail until such fine and costs are paid; or if the defendant
be not present, that a capias forthwith issue, commanding the
sheriff to arrest the defendant and commit him to jail until
such fine and costs are paid; also, that execution may issue
against the property of such defendant for the amount of such
fine and costs."
Article 784, Vernon's Annotated Code of Criminal Pro-
cedure provides: "If the punishment is any other than a fine,
the judgment shall specify it, and order it enforced by the
proper process. It shall also adjudge the costs against the
defendant, and order the collection thereof as in other cases."
As above pointed out it will be noted that Article 1,
Section 44 of the Texas Liquor Control Act imposes a duty upon
the courtupon conviction of the person so arrested unless good
cause to the contrary Is shown by the owner, shall order the
sale by a public auction of the property seized. It will be
noted that the statute does not specify any time that such or-
der of sale shall be made except upon the convictFon of the
person arrested.
In view of the foregoing we answer your question,as
follows: With reference to your first question it Is our opln-
Ion that the order of sale of the seized vehicle Is not a nec-
essary part of the judgment of convlctlon of the defendant.
In reply to your second question you are advised that
it is our opinion that an order of sale of the seized property
by the court upon conviction of the person arrested would be
valid at any time entered during the,term of court in which
the defendant has been convicted, provided, the seized property
is still in the possession of the court or the seizing of-
ficers?,"unless good cause to the contrary is shown by the
owner. It is our further opinion that the court could enter
a valid order of sale of the seized property upon conviction
of the person arrested at any term of court, provided, said
property still remains in the possession of the court or seizing
. . . .
Honorable Bert Ford - page 5 O-4898
officers, "unless good cause to the contrary is shown by the
owner."
We think that our answers to your first two questions
necessarily answer your third question.
Trusting that the foregoing fully answers your in-
quiry we are
Yours very truly
ATTORNEX TENERAL OF TEXAS
By s/Ardell Williams
Ardell Williams
Assistant
AW:PO:wc
APPROVED OCT 14, 1942
s/Grover Sellers
FIRST ASSISTANT
ATTORNEY GENERAL
Approved Opinion Committee By s/BWB Chairman