Untitled Texas Attorney General Opinion ( 1942 )

HEA~LTORNEY GENERAL
OF TEXAS
Honorable Homer Garrison, Jr., Director
Department of Public Safety
Camp Mabry
Austin, Texas
Dear Sir: Oolnion No. O-4748
Re: (1) Custody of gambling para-
phernalia after seizure and
pending destruction proceedings,
(2) Proper officer to destroy
gambling paraphernalia on order
of court.
We have carefully considered your letter of recent
date in which you request our opinion as to whether equipment
seized as gambling paraphernalia by a Texas Ranger should be
retained In the custody of the Ranger seizing the same pend-
ing a destructlon under order of the court. You also ask
whether the destruction order should be directed to the Ranger
or to the Sheriff of the county wherein the property was
seized.
The Penal Code of this State devotes an entlre chap-
ter to the subject of gaming. Article 632 of said Code re-
quires any "sheriff or other peace officer" having knowledge
of a violation of the laws against gaming to "Immediately
avail himself of all lawful means to suppress such violation."
Article 633 authorizes magistrates to issue search
warrants and directs the seizure of "any gambling parapher-
nalia, device or equipment" found upon execution of such war-
rant. With reference to the duty of peace officers and the
court in respect to property taken into custody as gambling
paraphernalia, etc., we direct attention to the provisions
of Article 636 and a portion of Article 637, as amended, from
which we quote the following:
"Art. 636. It shall be the duty of every sheriff,
orother peace officer by virtue of the warrant au-
thorized by this chapter to seize and take into his
possession all gaming tables, devices and other equip-
ments or paraphernalia of gambling houses, the ex-
istence of which has come to his knowledge and to
immediately file with the justice of the peace, county
Honorable Homer Garrison, Jr., page 2 o-4748
judge, or district judge, a written list of the
property seized designating the place where same
was seized, and, the owner of same, or the person
from whom possession was taken. Thereupon said
justice of the peace, county or district judge
shall note the same upon his docket and issue, or
cause the clerk of the court to issue a written
notice to the owner or person in whose posses-
sion the articles seized were found, commanding
him to appear at a designated time, not earlier
than five days from the service of such notice,
and show cause why such articles should not be
destroyed. If personal service cannot be had up-
on the person to whom same is directed, a copy
of said notice shall be posted for not less than
five days, either upon the court house door of
the county where the proceedings are begun or up-
on the building or premises from which the prop-
erty seized was taken.
"Art. 637. Section . If upon hearing of
the matter referred to in the preceding Article,
the Justice of the Peace, County Judge or Dis-
trlct Judge, before whom the cause is pending,
shall determine that the property seized is a
gaming table or bank or is used as equipment or
paraphernalia for a gambling house, and was be-
ing used for gaming purposes, he shall order
same to be destroyed, but any part of same may,
by order of the Court be held as evidence to be
used~ in any case until the case is finally dis-
posed of. Property not of that character and
not so used shall be ordered returned to the
person entitled to possession of the same. The
officer, within not less than fifteen (15) nor
more than thirty (30) days from the entry of
said order shall destroy all property the des-
truction of which has been ordered by the Court,
unless the owner, lessee or person entitled to
possession under this law shall, before the
destruction of said property, file suit to re-
cover same. Acts 1907, page 110.
"Sec. 2. If upon a hearing of the matter
referred to in Article 636, Penal Code of Texas
(1925), the Justice of the Peace, County Judge
or District Judge before whom the cause is pend-
ing shall determine,that the property seized,
or any part thereof, is not gambling parapher-
nalia per se, but that the same or any part
Honorable Homer Garrison, Jr., page 3 o-4748
thereof was used as equipment or paraphernalia
for a gambling house and was being used for
gaming purposes and that said property is
capable of being used for some legal purposes,
he may, in his discretion, by order of the
Court, 'declare the same confiscated and cause
the same to be delivered to the State of Texas,
or any political subdivision thereof, or to any
State Institution to be kept by it for Its own
use and benefit. The officer shall show'by his
return the disposition of the property made by
him, which shall be in compliance with the
orders of the Court.
!‘Sec.3. If upon a hearing of the matter
referred to in Artl%le 636, Penal Code of Texas
the Justice of the Peace, County Judge or Dis-
trict Judge before whom the cause Is pending,
shall determine that the property seized is a
gaming table, bank or gambling paraphernalia
and equipment per se, or if the Justice of the
Peace, County Judge or District Judge shall~
determlne that the same, or any part thereof,
was in fact used as equipment or paraphernalia
for a gambling house or was being used for gam-
ing purposes, then any money or coins seized
in or with said equipment or paraphernalia
shall, by order of the Court, be declared con-
fiscated, and the Court shall cause the same
to be delivered to the State of Texas or any
political subdivision thereof, or to any State
institution to be used by It for its own use
and benefit, or the Court may in its dlscre-
tion order such money or coins to be delivered
to the Grand Jury of the County In which such
equipment or paraphernalia was seized, to be
used by said Grand Jury for the purpose of in-
vestigating the violation of the gaming laws
of this State or for the purpose of investigat-
ing violations of any of the provisions of the
Penal Code of this State; At the end of the
term of each Grand Jury and before the dis-
charge of the same, the Grand Jury shall report
to the District Judge impanelling the same the
amount of money received under the provisions
of this Section and an accounting of all funds
expended, and the balance of such~ funds, lf any,
shall be turned over to the Clerk of said Dis-
trict Court, to be held by said Clerk until the
next Grand Jury is lmpanelled, at which time
Honorable Homer Garrison, Jr., page 4 o-4748
such money will be turned over and delivered to
such succeeding Grand Jury.
I!
. . . . .11
From a careful reading of the above~ cited and quoted
statutes it is observed that Articles 632 633 and 636, Penal
Code, make it the duty of "peace officers' to, execute searches
and seizures for gambling devices. Article 36 of the Code of
Criminal Procedure defines peace officers to be: "The sheriff
and his deputies, constable, the marshal or policeman of any
incorporated town or city, the officers, non-commissioned
officers and privates of the State ranger force, and any pri-
vate person specially appointed to execute criminal process."
Among the provisions of the act creating the Texas-
Department of Public Safety (Acts 1935, 44th Leg., ch. 181,
p. 444, as amended Acts 1937, 45th Leg., ch. 373, p. 772,
Vernon's Annotated Civil Statutes. Articles 4411 (1) - 4411
(29) ) which places the Texas Ranger force and personnel under
the jurisdiction of the Department of Public Safety, the fol-
language appears in Section 11 (Vernon's, Article 4413
"(1) The Texas Ranger
,
Force and its person-
.
nel, property, equipment ana recoras, now a part
of the Adjutant General's Department of the State
of Texas, are hereby transferred to and placed
under the jurisdiction of the Department of Public
Safety, and are hereby designated as the Texas
Rangers, and as such, constitute the above men-
tioned division of the Department.
11
. . . . .
"(4) The officers shall be clothed with all
the powers of peace officers, and shall aid in
the execution of the laws.
"They shall have authority to make arrests,
and to execute process In criminal cases; and in
civil cases when specially directed by the judge
of a court of record; and in all cases shall be
governed by the laws regulating and defining
the powers and duties of sheriffs when in the
discharge of similar duties; except that they
shall have the power and shall be authorized to
make arrests and to execute all process in
criminal cases in any county in the State. All
officers operating by virtue of this Act shall
, I
Honorable Homer Garrison, Jr., page 5 o-4748
have the authority to make arrests, as directed
by warrants, and without a warrant under the
conditions now authorized by law, and also in
all cases when the alleged offender is travel-
ing on a railroad, in a motor vehicle, aeroplane
or boat. When any of said force shall arrest
any person charged with a criminal offense, they
shall forthwith convey said person to the
'county where he so stands charged, and shall de-
liver him to the proper officer, taking his
receipt therefor. All necessary expenses thus
incurred shall be paid by the State.
II
. . . . .
“(6) In the execution of the laws ~of the
State under the Department of Public Safety,
the officials shall In all cases where it be-
comes necessary to seize property and destroy
the same, to proceed as now provided by law;
and all property so seized shall be stored and
a list thereof presented to a District Judge in
the District where such property is seized, who
shall dispose of same ln the mode and manner now
provided by Articles Nos. 5112, 5113 and 5114,
Revised Civil Statutes 1925.
II. . . . .I,
Investigation of the reference in numbered paragraph
of the above quotation to Articles 5112, 5113, and 5114,
ised Civil Statutes 1925, discloses that said articles re-
ferred'to the mode of disposing of properties seized under
the liquor laws in effect at the time of the passage of the
Texas Public Safety Act, supra. Said articles,were repealed
in 1935 (Acts 1935, 44th Leg., 2nd C. S.,ch. 467, p. 1795).
Irrespective of the effect of such repeal it will be observed
that such paragraph (6) only requires the District Judge to
dispose of the property seized in accordance therewith and
does not specify additional duties of the officer; whereas,
Article 637 of the Penal Code, supra, is directly applicable
to gambling equipment and paraphernalia, and prescribes the
method of destroying same.
It is our opinion that "the officer" referred to in
Article 637, supra, refers to the officer seizing the equip-
ment mentioned In Articles 632, 633 and 636, and that when
property Is seized by a Texas Ranger by virtue of the provl-
sions of the laws condemning gambling, it is the duty of such
Ranger to retain the property until final disposition by the
. .
Honorable Homer Garrison, Jr., page 6 O-4748
court. It is also our opinion that the destruction order,
when made In accordance with the provisions of Article 637,
should be directed to the officer having custody of the
property - in this case, the Texas Ranger, and not to the
Sheriff or any other officer.
Yours very truly
ATTORNEY GENERAL OF TEXAS
By s/Benjamin Woodall
Benjamin Woodall
Assistant
BW:GO:wc
APPROVED AUG 5, 1942
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/BWB Chairman