HonorableBert 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 countywithout

. permit? May tha Btrto forfeit 8m autcmobile rhioh ~88 not 8eitadatthe 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 automobileupon the.8tnet.i of Oltiey, Young County,Texa8. The deputy rhoriff of Young Qunty, TBAB, 8.1 thm oar and 8anuhat they thoughtmaa whi8k.y and bar on the -ok seat of the oar.' There uwo fourmen riding in the oar,bolud**ing** the driver. Three of them war. intoxioated. Tk deputy sheriff and the oitymarshal1 approachedthe oar tamake an inve8tigntionand found that they had 8avea quarts of whirkey and four oaaae of her in the oar. The offlsarr reiredtb Ihi8key and beer and arrestedA, who wa8 very drunk, ana permittedthb other8 to go home. They placedA in jail at Graham, Young County,Texar. Thy did not reiao the nutomobileat that tima. The CouxtyAttorney's office filed a complaintand information on A for'po88esrionof whi8key for purpose of sale.' About twoweeks later the Counfy Attorneyto offio* filed a oharge of 'illegalt~8- port&ion of liquor.* A and hi8 owpanion8 rt the time of l rreet olaianod

joint ownership of thewhiskey 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 theywere bringing a aaae of beer eaah to their friend8 in Olaey,naming than a.~ B and three others. "Quortidm 1: Under the lawwould A be permittedto tranrport liquor to the8e friend8without a permit? "Question 2: lbuld A be pwmittad to tranrport the liquor for hi8 friend8 ridbg with h@e in the oarwithout a permit?Honorable Eert Ford - Page 2 (O-6389)

"Question 3r Could the sheriff,with the proper pnpers,.confiscatethe automobilenow or after the trial of the criminal casewhere it WIT not seized at the time that whiskeywas seized? In otherwords, if it were seized, must it be asized at the time the liquorwas found?" (Substitution of names in personal letterwas made by this dspartment.)
?R have oarefully consideredthe alcove stated 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 statament to the Board or any of its authorized representatives or to nny psaae officermaking 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 accepted by such representative or office a8 prima facie evidence of ths lawful right to transport such liquor." (Raphnsisadded)
We believe the above emphasized seotionmanifests in clear and unambiguous wording the legislative intent to render it unlawful for any psrson to transport liquorwithout the prescribedwritten statementfrom the Xpper. Therefore,xv answeryour questions ??umbars1 and 2 in the negative.
J% have found no Texas deoisions bearing on your third question, but in view of the fact thatArticle 666-44,V.A.P.C., relatingto the seizure and forfeiture of automobiles is patterned after and borrows heavily fran the former Federal provision of theVolstead Law (Section26), passed on October 20, 1919, 41 Stat. 316,we are of the opinion that the case of United StatesV. 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 followsrHon. Bert Fod - Page 3 (O-6369)

"It is furtherprovided thst if nnywagon, buggy, automobile,water or air craft, or any othervehicle is used for the transportationof any illioit beverage or any equipment designed to be used for illegnlmanufacturing of illicitbeverages, or anymaterial of any kind which is to be used in the manufadurine. of illicit beverages, suchvehicle togetherwith all such beverages, equipnsnt.,

or material shallbe seizedwithoutwarrant by any representativeof the Board or any peace officer who shallarrest any person in chargethereof. Such officer shall at once proceed against the person arrested and all principals, aocomplioss,and accessoriesto such unlawful act, in any court having competent jurisdiction3

. . ." (Emphasisadded) Seotion 26 ofthe 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'aniwagon, buggy, automobile,nat& or air oraft..

or other vshiole. it shallbe his d&v to seize any 'hiTa

all intoxionti~g liquors found therein bQing transported oontraryto law. Whenever intoxicatingliquors transported or possessed illegally shall be seized by an officerhe shall take possession of the vehicle and team or automobile,boat, air or water craft, or any other oonvevanoe. and shall arrest aw nerson in ohnrEa thereof. S&h ~of?icarshall at once pboased ngninst t& person arrested under the provisionsof this chapter in any aourt having oompetent jurisdiction: , . ." (Bnphasisadded) The case of United Statesv. Slusssr, Supra, on page 620, headnote 6, sets out the essential elements in the forfeiture of an automobileunder 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 seation of the Volstead Law, must lx in strict pursuanoe to the terms thereof. United Statesv. 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 illegallytransporting liquor in n vehicle. "(2) The seizure of the liquor so transported or possessed.Hon. Bert Ford - Page 4 (O-6389)

"(3) The seizure of thevehicle and arrest of the persons. "(4) That fhs officer ,prooeed against 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 illegaltransportion, is n&ssary. Se&r8 of thevehicle can oniy tamade when liquor is seized. The law does not forfeit all vehicle8 at some time used for illegal transportationof liquor, but only those taken in the act. Onemay be convicted of illegal transportation,yet the vehicle will not be forfeited,unless seized at the time. U. S. v. Eydss, supra. The seizing offio8r is to have thevehicle in possession on the diy ofthe trial of the person arrested,Eo abide the judgment in the 8ame prov8eding. Should the defendant be acquitted, the automobilemust be released,fbr it is only upon aonviction that its salemay be ordered." (Emphasisadded) Thus, in 8n8wer to your third question, it is our opinion that the automobilemust be seized at the time the liquor is found.

very trW1y yours

BMrdb:jrb:egw
APPROVED M&Y 22, 1945 /s/GROVER SELLERS ATTORNEY GKWRAL OFTEXAS Approved: Opinion Committee

By GRIB,Chairman ATTORNEY GENERAL OF TEXAS By /s/Benjamin Woodall

Assistant By /8/ Bob Maddox

Assistant