Hon. Wayne Lefevre Opinion No. O-4929 

County Auditor He: Under the facts submitted does a 

Clay County peace officer have the legal authority 

Henrietta, Texas to arrest and search a person possessing liquor without a warrant of arrest? 

Dear Sir: 

Your letter of October 9, 1942, requesting the opinion of this department on the above stated question, reads in 

part as follows: 

“Please answer the following question for me. 

“If a law enforcement officer suspects a person 

to be in possession of alcoholic beverages in a dry 

territory for purpose of sale and searches this person outside of his home and finds what he was looking 

for. Is it necessary for this officer to have a 

search warrant to lawfully search and arrest this person? Taking into consideration that the suspected 

person has been convicted of the same charge many 

times in the past.” 

Bs we understand your request, you desire our opinion on the question, whether or not a peace officer can legally 

arrest and search a person under the facts submitted without a 

warrant of arrest. 

Generally speaking the laws of this State have expressly authorized peace officers to make arrests without warrants in a great many cases. (Articles 212-217, Vernon’s Annotated Code of Criminal Procedure) Thus generally an arrest may 

be made when an offense which is a felony or which is against 

the public peace is committed in the presence or within the 

view of the arresting party, or when it is shown by satisfactory 

proof to a peace officer, upon the representation of a credible 

person, that a certain party has committed a felony, and is 

about to escape. Other circumstances giving rise to authority 

to arrest without warrant are the verbal order of a magistrate 

before whom a felony or breach of the peace has been committed, 

or the existence of a city ordinance passed in conformity with 

State law and commanding search and arrest under prescribed 

conditions. 
Hon. Wayne Lef avre, page 2 (O-4929) 

Under the Texas Liquor Control Act the possessing 

of liquor as defined in said act for the purpose of sale in 

a dry area is only a misdemeanor offense. The possession of 

liquor for the purpose of sale in a dry areas is not a breach 

of the peace within itself. For the purpose of this opinion 

we assume that no city ordinance is involved. 

We have carefully considered Article 666-20 and Article 666-44, Vernon’s Annotated Penal Code, and have concluded 

that these statutes are not applicable to the question under 

consideration as the search of buildings, premises or vehicles 

of transportation is not mentioned in your inquiry. 

In view of the foregoing you are respectfully advised 

that it is our opinion that the peace officer has no authority 

to arrest the person in question without a legal warrant of 

arrest. 

In connection with the foregoing we wish to point out 

that it is a settled rule that no search warrant is essential in 

order to search the person of one lawfully under arrest for the 

purpose of finding and seizing dangerous weapons, the instrument s or fruit 3 of a crime, and such other things as may be of 

use as evidence on the trial. Even in cases where the law permits an arrestwithout warrant the right to search the person 

arrested follows as an incident to the arrest, and this naturally implies a search contemporaneous with the arrest. In the 

language of the United States Supreme Court (Agnello v. United 

States, 269 U.S. 20) frequently quoted and approved by the Texas 

Court: 

“The right without a search warrant contemporaneously to search persons lawfully arrested while 

cominitting crime, and to search the place where the 

arrest is made in order to find and seize things 

connected with the crime as its fruit or as the 

means by which it was committed, as well as weapons 

and other things to effect ah escaue from custody, 

is not to be doubted.” 

Trusting that the foregoing fully 

we are 

answers your inquiry, 

“PROVED OCT 29, 1942 Yours very truly 

/s/ Gerald C. Mann 

‘AT?ORNEY GENERAL OF TEXAS 

APPROVED: OPINION COMMITTEE 

BY: BWB, CHAIRMAN 

AW: AMM:wb 

ATTORNEY GENERAL OF TEXAS 

By /s/ Ardell Williams 

Ardell Williams, Assistant