January 18, 1966 Honorable Henry Wade opinion woo. c-585 District Attorney Dallas County Re: The a pllcablllty of Artl- Dallas, Texas cle 18 .30, Code of Crfmlnal Procedure, to dispositions of unclaimed or abandoned personal property In the cu8t0ay of law enforcement Dear Mr. Wade: officials and agencies. You have requested an opinion of this office by letter which reads In part: “Doea Section lo Article 18.30, Code of CrImlnal Procedure, whfch becomes effective January 1, 1966, provide only for the delivery to the purchasfng agent or sheriff of unclaimed or abandoned personal property seized by a peace offfcer through execution of a search warrant?" Se&Ion 1 of Artfcle 18.30, referred to above, provfdes as follows: Article 18.30 Sale of unalafmed or abandoned property “Sea, 1. All unclaimed or abandoned personal property except whiskey, wine and beer, of every kind, sefzed by a peace offfcer, which Is not held as evfdence to be used In any pendIng case and has not been ordered aest.royea or returned to the per- son entitled to possessfon of the same by a magis- trate# whfch shall remafn unclaimed for a period of 30 days shall be delfvered to the purchaafng agent of the county for sale. If the county has no pur- chaaIng agent then such property shall be sold by the sherfff of the county,” Sections 2, 3 and 4 of this article provide for the disposition of any property delfvered in accordance with Section 1. By the express terms of Section 1, “A&l . . . personal property . e . aefzed by a peace officer” (except whfskey, wine -2826 Hon. Henry Wade, page 2 (C-585). and beer), and by virtue of the Incorporation of this sectfon Into Chapter 18 of the,coae of Crfmlnal Procedure which Is entltled “Search Warrants’ and regulates the feeuance of such warrants, It Is clear that Sectfon 1 ana the ofhor sections of Artfcle 18.30 apply to property seized under a search warrant and that any unclaimed or abanaonea personal property so ob- tained must be delivered to the purchasing agent or sherfff of the county to be dfsposed of aa thrrefn provfded. The question remafns a8 to whether OP not Article 18.30 is applicable to abandoned OP unclaimed personal property which has come fnto the hands of law enforcement offPcers by some means other than sefzure under a search warrant. BY formulating an anewer, notice should first be taken of specfal statutes that provide for the disposal of certain propertfea of a “contraband” nature (properties used or pos- sessed In vfolation of law). FOP example, Intoxlcatlng beve- rages, expreaaly excluded from the operation of Article 18.30, are dealt wfth in Artfcles 666-30 and 666-42 of Vernone~s Penal Code; narcotics and vehicles used for their transportation are oovered by Artfcle 725d of Vernon’8 Penal Code, while Article 7266, Vernonf s Penal Code, covers the dfsposftfon of “dangerous ” drugs”; adulterated or mfsbranaed fo,od and drugs are controlled by Artfcles 9.06 of Vernon’s Code of CrImInal Procedure and Artfcle j&76-5 of Vernon’s Civil Statutes; and the dispositfon of gaming equfpment faprovfaed for by Artfcles 637 and 642a of Vernon’s Penal Code. “. %Y.-.;'SlnceArticle 54.02 of the new code of CrImInal Procew dure stIpulatea that any exfsting proviefons of the RevIsea Civil Statutes and the Penal Code whfch govern crImIna1 proce- dures in special Instancea are not repealed, any special statutes such as those set out above9 provfdfng fop the dfspo- sftion of particular Items of property comfng Into the custody of law enforcement officers, should continue to be followed and adhered to. Where there Is no special statute governing disposition and the roperty concerned is not sefaed under a search warrant, Chapter $ 7 (Artfcles 47.01 - 47.11) of the new Code of CrImInal Procedure styled “Dfspositfon of Stolen Property” should be consulted, Thfs chapter, &%ter provfdfng for the return of stolen property where the owner Ujcnown or can, be determined, conta@sthe following Articles: .- Artfole 47.06 Property sold “If the property Is not claimed wIthIn 30 -2a25- Iion. Henry wade, page 3 (C-589) days from the convlotion of the person accused off Illegally acquiring it, the aame procedure for Its aIaposItlon aa set out In Article 18.30 of this Code shall be followed.” (Emphaals supplied) Artlole 47.07 Owner may raker “The real owner of the property soid under the provlrions of Article 47.06 may recover such property under the same terms au prescribed In Section 4 of Article 18 0 of this Code‘;* @phaels adde + Artmle 47.11 Scope of Chapter “Each provision of this Chapter relating to stolen properDj:``applles as well to property ao- qulred in any manner which makes the acquisition a penal offense.n It would therefore appear evident that the terms of Article 18.30 apply to unalalmea or abandoned property, which may have been stolen whether aelzed under a search warrant or not, and to property uhloh la otherwise illegally acquired uhere there Is no special statute controlling disposition. Next to be considered Is the problem of disposing of other properties, not s~lzed under a search warrant, and which do not come within the terms of a special dlsposltlon atatute or within the defInItlon of stolen or illegally aaqulred P=v-tY. Suoh articles of personal property may Include items of an evidentiary nature se&aed by officers at the time of an arre8t of a auspect with or without an arrest warrant where a searah and seizure is made incident to the arrest ana not pursuant to a search warrant. Article 18.30, Section 1, speaks of property "seized by a peace officer@ with no qualifying language lImItlng the terms of the article to situations where the seizure of the property was under the authority of a search warrant, and lacordingly, the article logically applies to all seizures of property by peace offlaera. Moreover, Inasmuch as the new Code of Criminal Pro- cedure purporta to regulate all matters relating to crlmlnal -2a26- . - Ron. Henry Wade, page 4 (c-585) procedure (Articles X-03 and 54.02, Code of Crtilnal Proce- dure), the provisions of the Code should govern the disposition of all property coming into the possession of law enforcement offfcers In connection wfth the enforcement of criminal laws unless there fs another special statute providing for dlapo- sltlon. Accordingly, in any circumstance, where there is no particular procedure set us by another statute, the words seized by a peace officer in Article 18.30 should be given a broad meaning EO as to embrace all personal properties, not of a contraband nature* which may come Into the possession of peace officers Including property voluntarily delivered to such officers by a suspect, witness or other person who may have knowledge of a criminal offense or suspected orlme. SUMMARY “The applicability of Article 18.30 of the new Code of Criminal Procedure Is not llmlted to unclaimed or abandoned per,sonal property seized under a search warrant; on the contrary, this Article controls the disposition of all such property [except intoxicants) in the cus- tody of peace offlaers where there Is no special statute providing for the disposition of par- ticular items and kflhds of property.” Very truly yours, WAGGONER CARFi Attorney General of Texaa LFZPcm APPROVED: OPINION CO!%U?l’TEE W. V. Geppert, Chairman Milton Richardson Iioward M. Fender John Banks Robert Flowers APPROVEDFOR TRE ATTORmY GENERAL BY: To B. Wrfght -2827-