c 

OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

Zonorsblc 2. 7:. i3urkhalter 

~,.cting County Attorney 

Throckmorton, Texas 

Cear Sir: 

Re : Lasooaftioq of liquor 

sei&d.by shsriff in a 

dry areaunder Texas 

Liquor Control Ace, 

,,., 

you have requested the/opinion.of this deo;rt-' 

ment concerning the! disgositionof,intoxicating liquors 

seized by a sheriff in a dry area.,-> ?Wthink the question 

is answered by the follo;ring .?rwisions of th.:! Texas Lirluor 

::ontrol Act (Articles 666 and 661, YemoB's :;nnotatxi Penal 

i:oda of Texas, as amended): 

rlrticlo 66&3a;, .,, ~._ '. 

"The fol$owihg definitions of.&rds and 

terms shall Opply as usbd Sh this Act: '!I 

r'~lcoholic"Bevra~s'.~~ha;fl mean alcohol 

and B~~-"Bevera~e':con'ta~ni~more than one-half 

of,,bneper:,.cent of aldohc$ by volume which is 

c,gpabX'e'@@us,e for bov=gaage purposes, either 

aloac or wh@'diluted. 

‘1.. 

‘~~~~AJ&t 3ileverage * shall tilean and refer 

to anp%alcoh 

buted, bu@ r 

'ic beverage manufactured, distrisold, bottled, rectified, blanded, 

treated, fortified, mixed, processed., warehoused, 

'stored, possessed, imported, or transported in 

Violation of this Act, or on which any tax iaposed 

by the laws of this State has not been paid and the 

tax stamp affixed thereto; and any alcoholic beverage 

Gossessed, kapt, stored, owned, or imported with int,?nt 

to manufacture, sell distribute, bottle rectify, 
~;onorablo D. ::t. Surkhaltar, ::age 2 

blond, treat, fortify, nix, process, Warehouse, 

sto.r3, or transport in violation of the provisions of this act.?' 

Article 666-29, as annndsd: 

!'(a) iiff room, building, boat, structure, 

or place of any kind whsre alch,oholic bdvsrages 

are sold, bartered, manufactured, stored, possessed or consumsd in violation of t3ie hot, 

or under oonditions and circumstances contrary to 

the purposes of this Act, and all sxh bsverages and all _rroperty kept andussd in any such 

place, hereby are declared to ba a common uuisalice' and any person who maintains or assists 

in ;;~aintainirg suck common nuisance shall be 

zuilty~of a violation of this Act. ~. . ." 

Article 636-42, as amend-d: 

"(3) All nlcoi:olic b:tvorarjeo declrired by 

this i&t to be a nuisance, and all illicit beverages es derined by this Act, may be seized 

with or wvitbout a warrant by an agent or em- . 

?loyee of the Texas Liquor Control Doard, or by 

any peace officer, and any parson round in the 

possession or in charge thereor my be arrested 

without a warrant. Wo alcoholic beverages or 

articles so seized shall be replevied, but 

shall be stor:d by the Board, or by the sheriff 

or.t,he County wherein the seizure was made, to 

be held for final action of the court as hereafter provided. 

"(b) It shall be the duty of the Attorney 

General, the District Attorney, and the County 

Attorney, or any of them, when notified by the 

officer making the seizure, or by the Texas 

Liquor Control Board, that such seizure has beon 

made, to institute a suit for forfeiture of such 

alconolic beverages anti property, ouch suit to 

be brought in the name or the State of Texas in 

any court of competent jurisoiot$on in the county 
Honora'ble D. W. Durkhaltsr, page 3 

wherein such eeizure was made. Notice of pendency of such suit shall be served in the manner prescribed by law and the case shall ?rocaad 

to trial as other civil cases. If upon the 

trial of such suit it is found that alcobollc 

beveragas or property are a nuisance or were 

used or kept in maintaining a nuisanoe, under 

tha terms of this Act, or that the alooholio 

beverage is illicit, as dafined by this Act, 

then the court trying said cause shall render 

judeant forfeiting the same to the State of 

Texas and ordering the same disposed of as proviaed for by Section 30 of this Article. The 

costs of suah proceedings shall be paid by the 

Board, out of funds derived under the provisions 

of said Section 30, or from any other fund available to the Doard for such purposs. 

". . . ." 

Article 666-30, as amentisd: 

"ia) All alcoholic b-jverages and the oontainars thereof, equipment, and other yrogerty 

forfeited to the State as nuisances, unless 

otherwise herein provided, and all illicit beverages and the containers thereof forfeited to 

the state, shall be turned over to the Board for 

public or private sale in such place or manner 

as it may deem best; Irovided, that the Board 

shall exercise diligent effort to obtain the 

best available price for anything thus sold; 

provided, further, that any bill of sale executed by the Board or Administrator shall convey a 

good and valid title to the purchaser as to any 

such property sold. The Board shall sell alcoholic beverages only to the holders of qualified 

permits or licenses. No alcoholic beverage unfit to be sold for public consumption or of 

illicit manufacture, may be sold by the Board, 

but are declared a nuisance per se and may be 

destroyed.by the Board. The certificate of 

any qualified ohemist shall be accepted by the 

Board as evidence? of unfitness of such alcoholic bevrages." 
I 

Honorable D. ;. Rurkhalter, page 4 

In addition to these statutory provisions conc3rning tl:e disposition of liquor lawfully seized by an enforoemvnt officer, we would like to aall your attention to 

the well recognized rule whicn has baen aptly stated in a 

leading case as hollows: 

'"It is not only the common practice, but the 

requirement of the common law, that articles whiah 

may tilpply evidence of guilt of a party accused found 

in his possession or under his control may be taken 

in poss3ssion by the Officer officiating in making 

the arrest; and, indeed, it is the duty of such officer 

to take into his possession and retain such articles, 

subject to the power and direction of the court of justice 

having cognizance of the alleged aMme. This principle 

is one of necessity in tha administration of the criminal _ 

law, and it is generally recognized by the oourts of the 

country with few, if any, exceptions." Simpson VS. .y it. 

John, 93 W.Y. 363. See also 11 A.L.R. 681, and 13 A.L.R. 1168. 

:;e trust that ne.have answered your inquiry in a mannilr 

that +I11 be of some aid to you. 

Very truly yours, 

ATTORNEY GXNERAL OF ThW 

BY 

EA:D-d:ZH 

APPROVED OCT. 10, 1944 

s.-Carlos Ashley 

FIRST ASSISTANT 

AlTORNEY GENERAL 

Bugene Alris 

Aesiatant