Untitled Texas Attorney General Opinion ( 1945 )

Honorable Bert To*d, Adminirtrator
Texas Liquor Control Board
Austin, Texas
Dear Sirt Opinion So. O-6569
Rot Would a parron be permitted
to tranlport liquor from a
wet oounty to friend8 in a dry
county without . permit?
May tha Btrto forfeit 8m autcmo-
bile rhioh ~88 not 8eitad atthe
time the liquor -8 found?
Your raquort forthir department18 opinion on th* following faota
and question8 read8 in part a8 follow8:
"That on or ndout July ZOth, 1944, 4 %a# driving hi8
automobile upon the.8tnet.i of Oltiey,Young County, Texa8.
The deputy rhoriff of Young Qunty, TBAB, 8.1 thm oar and
8anuhat they thought maa whi8k.y and bar on the -ok seat
of the oar.' There uwo four men riding in the oar, bolud-
ing the driver. Three of them war. intoxioated. Tk depu-
ty sheriff and the oity marshal1 approached the oar ta make
an inve8tigntion and found that they had 8avea quarts of
whirkey and four oaaae of her in the oar. The offlsarr
reired tb Ihi8key and beer and arrested A, who wa8 very
drunk, ana permitted thb other8 to go home. They placed A
in jail at Graham, Young County, Texar. Thy did not reiao
the nutomobile at that tima. The Couxty Attorney's office
filed a complaint and information on A for'po88esrion of
whi8key for purpose of sale.' About two weeks later the
Counfy Attorneyto offio* filed a oharge of 'illegal t~8-
port&ion of liquor.* A and hi8 owpanion8 rt the time of
lrreet olaianodjoint ownership of the whiskey to the extent
that eaoh one onned a quart of whiskey and that they brought
three qurrhr back for other friend8 living in the town and
that they were bringing a aaae of beer eaah to their friend8
in Olaey, naming than a.~B and three others.
"Quortidm 1: Under the law would A be permitted to
tranrport liquor to the8e friend8 without a permit?
"Question 2: lbuld A be pwmittad to tranrport the
liquor for hi8 friend8 ridbg with h@e in the oar without
a permit?
Honorable Eert Ford - Page 2 (O-6389)
"Question 3r Could the sheriff, with the proper pn-
pers,.confiscate the automobile now or after the trial of
the criminal case where it WIT not seized at the time that
whiskey was seized? In other words, if it were seized,
must it be asized at the time the liquor was found?" (Sub-
stitution of names in personal letter was made by this ds-
partment.)
?R have oarefully considered the alcovestated questions and in
answer to lbmixrs
1 and 2 direct your attention to Article 666-27(a) of
Vernon's Annotated Penal Cods, which provides a8 follows;
the same ib being transported, to-exhibit such &it&n stata-
ment to the Board or any of its authorized representatives
or to nny psaae officer making demand therefor, end it shall
be unlawful for any person to fail or refuse to exhibit the
same upon such demand. Such written statement shell be accept-
ed by such representative or office a8 prima facie evidence of
ths lawful right to transport such liquor." (Raphnsis added)
We believe the above emphasized seotion manifests in clear and un-
ambiguous wording the legislative intent to render it unlawful for any psr-
son to transport liquor without the prescribed written statement from the
Xpper. Therefore, xv answer your questions ??umbars1 and 2 in the nega-
tive.
J% have found no Texas deoisions bearing on your third question,
but in view of the fact that Article 666-44, V.A.P.C., relating to the
seizure and forfeiture of automobiles is patterned after and borrows heavi-
ly fran the former Federal provision of the Volstead Law (Section 26),
passed on October 20, 1919, 41 Stat. 316, we are of the opinion that the
case of United States V. Slusser, 270 Fed. 616, construing said section
of the Volstead Law is controlling.
Article 666-44, Vernon's Annotated Penal Code, reads in part as
followsr
Hon. Bert Fod - Page 3 (O-6369)
"It is further provided thst if nny wagon, buggy,
automobile, water or air craft, or any other vehicle is
used for the transportation of any illioit beverage or
any equipment designed to be used for illegnl manufact-
uring of illicit beverages, or any material of any kind
which is to be used in the manufadurine. of illicit bev-
erages, such vehicle together with all such beverages,
equipnsnt.,or material shall be seized without 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 arrest-
ed and all principals, aocomplioss, and accessories to
such unlawful act, in any court having competent juris-
diction3 . . ." (Emphasis added)
Seotion 26 of the Federal Volstead Law reads in part ns followsr
"Sec. 40. Wen the commissioner, his assistants,
inspeotors, or any officer of the law shall discovur any
mrson in the not of transWrtillF:in violation of the law.
Intoxioating liquors in'ani wagon, buggy, automobile, nat&
or air oraft..or other vshiole. it shall be his d&v to
seize any 'hiTa
all intoxionti~g liquors found therein bQing
transported oontrary to law. Whenever intoxicating liquors
transported or possessed illegally shall be seized by an
officer he shall take possession of the vehicle and team
or automobile, boat, air or water craft, or any other oon-
vevanoe. and shall arrest aw nerson in ohnrEa thereof.
S&h ~of?icarshall at once pboased ngninst t& person ar-
rested under the provisions of this chapter in any aourt
having oompetent jurisdiction: , . ." (Bnphasis added)
The case of United States v. Slusssr, Supra, on page 620, headnote
6, sets out the essential elements in the forfeiture of an automobile under
Section 26 of the Volstead Law as followsr
"(6) Third, ns to the right of restitution: The
forfeiture of an automobile, under the twenty-sixth sea-
tion of the Volstead Law, must lx in strict pursuanoe
to the terms thereof. United States v. H:rdes(D.C.) 267
Fed. 471; the Goodhope, 266 Fed. 694. The following
elements are essentialr
"(1) That en offioer of the law discover
scme person in the not of illegally transport-
ing liquor in n vehicle.
"(2) The seizure of the liquor so transport-
ed or possessed.
Hon. Bert Ford - Page 4 (O-6389)
"(3) The seizure of the vehicle and arrest
of the persons.
"(4) That fhs officer ,prooeedagainst the
person atidr&&In the vehiole, unless redelivered
to the owner, upon giving bond to return it to the
custody of the offioer on the day of trial to
abide the judpent of the court.
"(5) Conviction of the person and order of sals
of the vehicle.
"(6) Distribution of the prooesds.
"The highest degree of evidence, vizr that an officer
of the law ~erceivs 8ome)~
person in the aot of illegal transpor-
tion, is n&ssary. Se&r8 of the vehicle can oniy ta made
when liquor is seized. The law does not forfeit all vehicle8
at some time used for illegal transportation of liquor, but
only those taken in the act. One may be convicted of illegal
transportation, yet the vehicle will not be forfeited, unless
seized at the time. U. S. v. Eydss, supra. The seizing offi-
o8r is to have the vehicle in possession on the diy of the
trial of the person arrested, Eo abide the judgment in the
8ame prov8eding. Should the defendant be acquitted, the
automobile must be released, fbr it is only upon aonviction
that its sale may be ordered." (Emphasis added)
Thus, in 8n8wer to your third question, it is our opinion that the
automobile must be seized at the time the liquor is found.
very trW1y yours
ATTORNEY GENERAL OF TEXAS
By /s/Benjamin Woodall
Assistant
BMrdb:jrb:egw
By /8/ Bob Maddox
APPROVED M&Y 22, 1945 Assistant
/s/GROVER SELLERS
ATTORNEY GKWRAL OFTEXAS
Approved: Opinion Committee
By GRIB,Chairman