R-896



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11. Texas PRICE DANIEL’ ATTORNEY

GENERAL December 30, 1947

Han, Sherwood Brown, Jr, Opinion No. 'V-469 CountyAttorney Galveston County Re: Authority' of a comGalveston,Texas missionersO court to purchasean automobile for the county juvenile officerwith money seised in a gambling house raid,

Dear Sir:

Reference ismade to your letter and enclosures of recent date wherefnyou request the opinion of this Department on the following question:

"Does the County Auditor have authority to advertise for and purchase an automobile for the Juvenile Officer of GalvestonCounty, Texas, with money sefsed,in a gamblinghouse raid, saidmoney being declared confiscated by an order of the District Judge under the provisions of Artiele 637, Penal Code of Texas, and delivered ,tothe County by said order upon the condition that it be used for that purpose,where saidmoney was deposited by the 6ounty,Audftor in the General Fund, and where there is no pr.ovisfon under %he law permittfng the purchaseby the County of Galveston of an automobile for the Juvenile Officer?"

This Department,following the decisions af the Texas courts, has repeatedlyheld that the CommiesionersQCourt is a Court of limited jurisdictionand has only,suchpowers as are conferredupon it by the statutes and Constitutionof this State, eitherby express terms or by necessary implication. See, 18 of Art,, V, Constitutfonof Texas; Art, 2351,V,C,S.;Von Rosenberg vsO Lovett, I.73S,W, 508; Galveston,H, & S, A, Ry. Coo VS~ Uvalde County, 167 SOW, (2d) 1084; 11 Texi Jur, 5640.. .

Hon. Sherwood Brown,Jr. - Page 2 (V-469)

In former Opinion No, O-5812 dated February 9. 1944. this Department had under considerationthe authority of the-Commissioners(Court to purchase automobiles for the county judge, county tax assessorcollectorand county probation officer, all to be used in the performance of officialbusiness. In advising that the Legislature of Texas, in the absence of a special CountyRoad and Bridge Law, and under provisions of the general law, had granted authority to Commissioners' Courts to purchase automobiles for only the sheriff and the district attorney or criminaldistrict attorney in certain counties,and for no other county officials. The opinionused the following language:

"No other statutory or constitutional authority exists, so far as we have been able to ascertain,whereby a Commissioners Court may furnish or allow an automobile for the'use of any'county or district officials, other than those hereinabove listed.

"It is a familiar rule of construction th&the specification of one partioular

excludesall other cl.asseso
v. &el, (Civ.App,) 61 S,W; (2d)14"?t" Also see 39 Tex. Jur,, pe 188, par. 100, in which the Pexpressiounius' rule (theexpression of one thing is exclusive of another) is discussed. Said rule of construction clearlyhas applicationto the~ouestions
now under consideration, The Legislaturehas, by general law, only designated two classes of officers that might be allowed automobiles for officialuse by the Commissioners', Court, They are sheriffs and certain DistrictAttorne ea de fs or CriminalDistrict Attorneys as aforeNot having so designatedany other officer or officersto whom the Commissionersq Courtmight furnish or allow automobiles for officialuse) the Legislaturehas grantedno authority by general law to said Court to furnish or allow automobiles for such use to any officials other than those already named."

We are aware of the specialroad law, with the amendment thereto, under which Galveston County operates. However,we find no authority contained in it forthe purchase of an automobile for the county juvenile officer of Galveston County. 

# )Hon, Sherwood Brown, Jr0 - Page 3 (V-469)

Tubing directly to the questionnow under con& sideration,we quote Sec. 3 of Art, 637,V,P,C,, in part, as follows:

"If upon a hearing of thematter referred to in Art, 636, Penal 6ode of Texas the JUStice of the Peace, 6ounty Judge or &Lstrict Judge before whom the cause is pending, shall determine that the property seized is a gaming table, bank,or gambling paraphernaliaand equipmen% per 5e, or if Che Justice of the Peace, County Judge or District Judge shall determine that the same8 or any part thereof,was in fact used as equipmentOP paraphernalia for gambling.houseor was being used for gaming purposes, then any money or coins seized in or with said equipment or paraphernalia shall;by order of the 60urt, be declared confiscated, and the GOUP% shaalll cause the same to be delivered to %he S&ate of Texas or any political subdivisionthereof, OP to any State institution to be used by it for its own use and benefi%, or the Cour%may fn its dfscre%ion order suchmoney or coins to be delivered to the Grand Jury of the county in which such equipment or paraphernaliawas seized;to be used by said Grand Jury for the purpose of %nveatigatfn this 5 the violations of the gaming laws of tate or for the purpose of investigating violations of any of the provisions of the Penal 6ode of this State, O Qn

fiscated in a gamblinghouse raid to GaYves%on 6ounty burdened, however,with an express condition as to its future use0

We quoteArt, XVI See, 24 Gonstitutionof Texas, and Arts, 1626 and I&28, V,6,S, as foliows:

"Sec. 24, The Legislature shallmake provision for laying out and work%ng public roads, for %he building of bridges, and for utilizing fines, forfeitures,and convict labor to a91 these purposesOnHon, Sherwood Brown, Jr. - Page 4 (V-469)

Art, 1626 reads as follows:

"Claims against a county shall be registered in three classes,as follows:
"1. All'jury scrip and scrip issued for feeding jurors.,

"2. All scrip issuedunder the provisions of the road law or for work done on roads and bridges.

“3. All the general indebtednessof the county, including feeding and guarding prisoners, and paupers9 claims,"

Art. 1628 reads as follows:

"The funds received by the county treasurer shall be classedas follows, and shall be appropriated, respectively,to the.payment of all claims regist~ered in the first, second and tkiirdclasses:
"1, All jury fees;all money received from the sale of estrays,and all occupation taxes.

"2. All mon'ey

received under any of the provisions of the road and bridge law, including the penaltiesrecovered,fromrailroads for failing to repair crossings,and all fines and forfeitures,

“30 All money received, not otherwise apP ropriated herein or by the commissioners court." Underlining supplied)
-Forfeitureis the loss of lands and goods to the State, as the consequenceof crime, and is distinguishable from confiscationin that the latter is the consequenceof the forme,r, Forfeiture is the result which the law attachesas an immediateand necessary consequenceto the illegal acts of the individual; con-. fiscation implies the action of the state, and property, although itmay be forfeited, cannotbe said to be confiscateduntil the governmenthas formally claimed or taken possession of itO BlackPs Law Dictionary, 3rd Ed,. .

Hon. Sherwood Brown, Jr. - Page 5 (V-469)

Clearly a forfeiturehas occurred in this case, and the forfeitedproperty has been confiscatedby the State0 Following the plain import of.the above quoted constitutionaland statutorymandates, if the District .Judgegives the #1710060 to Galveston County it is to be deposited in the road and bridge fund of Galveston County. Once in the road and bridge fund, it becomes county funds for all intentsand purposesand is to be expended by the commissioners'court as the Constitution and statutesdirect that road and bridge funds shouldbe spent.

The CommissionereD Court of GalvestonCounty is powerless to fulfill the conditionplaced upon the use'of the Qbl7lOb60 delivered to it under the terms of Art. 637,V.P.C,, in the absence of statutory or constitutionalauthority. The Commissioners'Court can function only where authorityha6 been conferredupon it and in this instanceno authority to ex end for an automobile for the county juveni f county funds
e officer exists,

In view of the fore$olyi we are of the opinion that the countyauditor o Ga veeton County has no authority to advertise for and purchasean automobile for the county juvenile officerwith money confiscated and delivered to Galveston Countyunder the circumstances you have outlined.

A commissionersP court has no authority to purchase an automobile for the county juvenile'officerwith money seised ina gambling raid and declared confiscatedby a district court and delivered to the countyupon condition that itmake such purchase. Sec. 3$ Art. 637, V,P,C,; Seca 24 Art. XVI Texas Con&., Art. 1628 V.CoSos Opinion No, b-5812.

Yours very truly

APPROVED: ATTORNEY GENERAL OF TEXAS



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