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. 

You recently requested an opinion 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 an unauthorized person.” 

Article 7.37, Taxation-General, Vernon’s Civil Statutes, makes the transportation and the 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 law and Article 7.31 thereof provides for the 

dlsposltion of the cigarettes when seized. 

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 

and iriperty so seized as aforesaid, remaining in the possession or custody of 

the Comptroller, sheriff or other offlcer for forfeltuI 

asprovided by law,. shall be deemed to be 

in the custody of law and lrrepleviable.” 

(Emphasis Added’) 

The above provision recognizes that the authority to 

seize unstamped cigarettes is not vested exclusively in the 

Comptroller and that sheriffs and other officers may make such 

seizures. An officer making a legal arrest Is authorized to 

search the premises and seize the things used In carrying out 

a criminal enterprise. Stokes v. State, 35 S.W.2d 727 (Tex. 

Crlm. 1931). Therefore, under the laws of the State of Texas 

any pea&e bfficer may seize unstamped cigarettes when there is 

a legal right to arrest the person found In possession of such 

cigarettes, and a lawful search has disclosed the presence of 

unstamped cigarettes. 

Article 34 of Vernon’s Code of Criminal Procedure provides that the sheriff and his deputies, constable, the marshal 

or policemen of an Incorporated town or city, the officers, noncommissioned officers and privates of the State ranger force, 

and any private person specially appointed to execute criminal 

process are “peace officers.” 

Article 2.12 of Senate Bill 107, 59th Legislature, to 

take effect and be In force on January 1, 1966, provides: 

“The following are peace officers: The 

sherfff and his deputies, constable, marshal 

or policemen of an incorporated town or city, 

the officers, non-commissioned officers and 

privates of the State Ranger Force and Department of Public Safety, law enforcement 

agents of the Texas Liquor Control Board, and 

any private persons specially appointed to 

execute criminal process.” 

Article 666-7% of Vernon’s Penal Code provides that 

commissioned inspectors and representatives 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, 263 F.2d 800, (C,C.A. 

gth, 1959), the Court stated: 

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Honorable Robert S. Calve&, Page 3, C-539 

"An authorized federal border official 

may, upon unsupported suspicion stop and 

search persons and their vehicles entering 

this country. 19' U.S.C.A. 13 482. Carroll 

v. United States, 267 U.S. 132 (1925). . ." 

It is, therefore, the opinion of this office where 

a lawful search Is made by a federal border official and he 

discovers unstamped cigarettes in quantities of more than 

&3 cigarettes that are in the possession of an unauthorized 

person and the 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 may seize the cigarettes in his official capacity as a 

peace officer of the State of Texas. 

A peace officer who makes a 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 an unauthorized person. Stokes v. State, supra. 

SUMMARY 

Under the laws of the State of Texas 

any peace officer may seize 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 

OPINION COMMITFER: 

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. * 

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

w. V. Geppert, Chalrman 

Sam Kelley 

ru~t~u~ahardson 

Ivan Williams 

APPROVEDFoRTRRATTORNFXGEN~ 

BY: T. B. Wright 

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