Honorable Robert S. Calvert

Comptroller of Public Accounts Austin, Texas

Dear Mr. Calvert: 

### 1965 Opinion No. C-539 Re: Whether peace officers, under the laws of Texas, have the authority to detain or seize unstamped cigarettes, If in a prohibited quantity end in the possession of an unauthorized person. Yourecently requested anopinion from this office on the following question:

“Since the recent inorease by the Legislature in the oigarette tax, we are experiencing an Increase in the Influx of unstamped cigarettes into the State of Texas. This department requests your opinion as to whether or not peace officers under the laws of this State have the authority to detain or seize unstamped cigarettes if in a prohibited quantity and In the possession of anunauthorized person.” Article 7.37, Taxation-General, Vernon’s Civil Statutes, makesthe transportation andthe possession for use, sale, or exchange of unstamped cigarettes in quantities of more than 40 clgaxettes a felony.

Article 7.30, Taxation-General, Vernon’s Civil Statutes, provides for the seizure by the Comptroller of cigarettes

‘which are transported in violation of the law or found in the possession, custody, or control of any person in violation of the cigarette tax lawandArticle 7.31 thereof provides for the dlsposltion of the cigarettes whenseized.

Article 7.30, in addition to providing for the seizure of unstamped cigarettes, provides:Honorable Robert S. Calvert, Page 2, C-539

II

. All such cigarettes, vehicles andiriperty so seized as aforesaid, remaining in the possession or custody of the Comptroller, sheriff or other offlcer for forfeltuI asprovided by law,. shall be deemedto be in the custody of law and lrrepleviable.” (Emphasis Added’) Theabove provision recognizes that the authority to seize unstamped cigarettes is not vested exclusively in the Comptroller andthat sheriffs and other officers maymakesuch seizures. Anofficer makinga legal arrest Is authorized to search the premises and seize the things used In carrying out a criminal enterprise. Stokes v. State, 35S.W.2d 727 (Tex. Crlm. 1931). Therefore, under the laws of the State of Texas anypea&ebfficer mayseize unstamped cigarettes whenthere is a legal right to arrest the person found In possession of such cigarettes, anda lawful search has disclosed the presence of unstamped cigarettes.

Article 34 of Vernon’s Codeof Criminal Procedure provides that the sheriff andhis deputies, constable, the marshal or policemen of anIncorporated town or city, the officers, noncommissioned officers andprivates of the State ranger force, andanyprivate person specially appointed to execute criminal process are “peace officers.”

Article 2.12 of Senate Bill 107, 59th Legislature, to take effect andbe In force on January 1, 1966, provides:

“The following are peace officers: The sherfff andhis deputies, constable, marshal or policemen of an incorporated town or city, the officers, non-commissioned officers and privates of the State Ranger Force andDepartment of Public Safety, law enforcement agents of the Texas Liquor Control Board, and anyprivate persons specially appointed to execute criminal process.” Article 666-7% of Vernon’s Penal Codeprovides that commissioned inspectors andrepresentatives of the Texas Liquor Control Board shall have all the powers of a peace officer coextensive with the boundaries of the State.

In Cervantes v. United States, 263F.2d 800, (C,C.A. gth, 1959), the Court stated:
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"Anauthorized federal border official may, upon unsupported suspicion stop and search persons and their vehicles entering this country. 19'U.S.C.A. 13482. Carroll v. United States, 267 U.S. 132 (1925).

. ." It is, therefore, the opinion of this office where a lawful search Is madeby a federal border official andhe discovers unstamped cigarettes in quantities of morethan &3cigarettes that are in the possession of an unauthorized person andthe federal border official reports the presence of such cigarettes to a peace officer of the State of Texas, present at the border inspection station, then the peace officer mayseize the cigarettes in his official capacity as a peace officer of the State of Texas.

Apeace officer whomakesa legal arrest, within the boundaries of the State, is authorized to search and seize unstamped cigarettes, if In a prohibited quantity and in the possession of anunauthorized person. Stokes **v. State,**  **supra.** SUMMARY Underthe laws of the State of Texas anypeace officer mayseize unstamped cigarettes where there is **a legal**  right to.~arrest the person found in possession of the cigarettes, and a legal search has disclosed the presence of unstamped cigarettes in a prohibited quantity in the possession of an unauthorized person. Very truly yours, WAGGONER

CARR Attorney General of Texas

Assistant Attorney General DHC/dt APPROVEDr OPINIONCOMMITFER:

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Honorable Robert S. Calvert, Page 4, C-539



### w.V. Geppert, Chalrman SamKelley ru~t~u~ahardson Ivan Williams APPROVEDFoRTRRATTORNFXGEN~ BY: T. B. Wright

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