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OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN

Zonorsblc 2. 7:.i3urkhalter ~,.cting

CountyAttorney Throckmorton,Texas

Cear Sir: Re: Lasooaftioqof liquor sei&d.by shsriff in a dry areaunder Texas Liquor ControlAce,

,,., you have requested the/opinion.ofthis 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 (Articles666 and 661,YemoB's :;nnotatxi Penal i:odaof Texas, as amended):
rlrticlo66&3a;, .,, ~._ '.
"The fol$owihgdefinitions 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 volumewhich 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 'icbeveragemanufactured,distrisold, bottled, rectified,blanded, treated, fortified,mixed, processed., warehoused, 'stored,possessed, imported, or transported in Violation of thisAct, 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 importedwith int,?nt tomanufacture, 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 thisact.?'
Article 666-29, as annndsd:
!'(a) iiff room, building,boat, structure, or place of any kindwhsre alch,oholic bdvsrages
are sold, bartered,manufactured, stored,possessed or consumsd in violation of t3ie hot,
or under oonditions and circumstancescontrary 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~ofa violation of thisAct. ~. . ."

Article 636-42, as amend-d:
"(3) All nlcoi:olic b:tvorarjeo

declrired

by this i&t to be a nuisance,and all illicitbeverages es derinedby 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 thereormy 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

Countywherein the seizurewas made, to be heldfor final action of the court as hereafter provided.
"(b) It shall be theduty of the Attorney General, the DistrictAttorney, and the County Attorney, or any of them,when notifiedby the officermaking the seizure, or by the Texas Liquor Control Board, that such seizure has beon made, to institutea suit for forfeiture of such alconolic beveragesanti property, ouch suit to be brought in the name or the State of Texas in any court of competent jurisoiot$on in the countyHonora'ble D. W. Durkhaltsr,page 3

wherein such eeizure was made. Notice of pendency of such suit shall be served in themanner prescribedby 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 inmaintaining 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 orderingthe 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 otherwiseherein provided, and all illicitbeverages 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 itmay deem best; Irovided, that the Board shall exercise diligent effort to obtain the best availableprice 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 illicitmanufacture,may be sold by the Board, but are declared a nuisance per se and may be destroyed.bythe Board. The certificate of any qualified ohemist shall be acceptedby the Board as evidence? of unfitness of such alcoholic bevrages."I

HonorableD. ;.Rurkhalter,page 4

In addition to these statutoryprovisions conc3rning tl:e

disposition of liquor lawfully seizedby an enforoemvnt officer,we would like toaall your attention to the well recognizedrule whicn has baen aptly stated in a leading case as hollows:

'"Itis not only the common practice,but the requirement of the common law, that articleswhiah may tilpply

evidence of guilt of a party accused found in his possession or under his controlmay be taken in poss3ssionby the Officer officiating inmaking 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 recognizedby the oourts of the country with few, if any, exceptions." Simpson VS. it. .y 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.-CarlosAshley FIRST ASSISTANT AlTORNEY GENERAL Bugene Alris Aesiatant