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# THEA~TORNEYGENERAL OF TEXAS

Honorable Coke R. Stevenson,Jr. Administrator Texas Liquor Control Board State Office Building Austin, Texas Dear Mr. Stevenson: Opinion No. WW-979 Re: Whether the District, County or Justice Court has jurisdiction to try a suit for the forfeiture of illicitalcoholic beverages, and related question. Your request for an opinion reads as follows:

"Subsection (b) of Section 42 of Article I of the Texas Liquor ControlAct, provides that the Attorney General, the DistrictAttorney, and the CountyAttorney, or any of them, shall,after notification of a seizure of illicit alcoholic beverages, institutea suit for the forfeiture of such alcoholicbeverages in the name of the State of Texas in any Court of competent jur:sdiction in the county wherein such seizurewas made.

"Section

### 8 of Article V of the Constitution of the State of Texas, provides that the District Court shall have original jurisdiction in all suits in behalf of the State to recover forfeitures.

"In the light of this ConstitutionalProvision, we have interpretedthe phrase, 'Courtof competent jurisdiction,'to be a District Court only. Thus, shoulda Justice of the Peace Court adjudge alcoholicbeverages to be illicit and enter an Order of Forfeiture,we would consider the judgmentto be void, and we would feel impelled to not pay the Court costs in connectionwith the proceeding.

"We, therefore, respectfullyrequest your valuable opinion on the following questions:

"1. Which type of trial Court, either District, County, or Justice of the Peace, has original jurisdictionto try a suit for the forfeiture of illicitalcoholicbeverages?‘- .

Honorable Coke R. Stevenson,Jr., Page 2 (ww-979) "2. If the District Court only is your answer to questionNo. 1, is the Board authorized to pay Court costs of a Justice of the Peace Court that has entered an Order of Forfeiture of illicit alcoholic beverages, and, does title to such beveragespass to the State of Texas? "These questionsare not the subjectof any pending or proposed litigation." The District Court has original jurisdictionto try a suit for the forfeiture of illicitalcoholicbeverages. Section 8 of Article V of the Constitution of the State of Texas, reads in part as follows:

"TheDistrict Court shall have original jurisdiction

. . . in all suits in behalf of the State to recover . . . forfeitures. . . .ll No other court of original jurisdictioncan acquire original jurisdictionover the subjectmatter of a forfeiture suit since such jurisdiction is granted exclusivelyto the District Court by the Constitution. Meyers v. State, 105 S.W. 48, (Civ.App. 1907); State v. Compton, 142 Tex. 494, 179 S.W.2d 501 (1944). Any judgment rendered in a Justice of the Peace Court disposing of illicit alcoholic beverages by an order of forfeiture is void for want of jurisdiction,and does not pass title to the State ofTexas.

Before the Board is authorized to pay the court costs of suchproceedings there must be an appropriationand a pre-existing law authorizing s&d expenditure.

Acts 1959, 56th Legislature, 3rd called session, ch. 23, Appropriation Act, p. 662, Item 54, appropriates funds for the Texas Liquor Control Board to pay court costs.

For pre-existingauthority for the payment of court costs to the Justice Court we must look to the Texas Liquor ControlAct.

Article 66, Texas Penal Code, Sec. 42(b), reads in part as follows:

"It shallbe the duty of the Attorney General, the DistrictAttorney, and the CountyAttorney, or any of them, when notified by the officermaking the seizure, or by the Texas Liquor Control Board, that such seizurehas been made, to institutea suit for forfeiture of such alcoholicbeverages and property . . . in any court of competent jurisdiction inHonorable Coke R. Stevenson,Jr., Pa.9

# 3 (ww-979) the countywherein such seizurewas made. ,. . .The costs of suchproceedings shallbe paid by the Board, out of the funds derivedunder the provisions of said Section 30, or from any other fund available to the Board for suchpurpose." [Fxphasisadded] There is no other provision of the Texas Liquor ControlAct which would authorizepayment of the costs. Since the present suitwas not in "any court of competent jurisdiction"Sec. 42(b) does not authorizepayment of the court costs for a forfeiture suit in Justice Court.

This opinion is limited to civil suits for the forfeiture of illicit alcoholicbeverages and we are not calledupon and are not decidingthe question of whether or not an order that suchbeverages belonging to a defendant in a criminalproceeding be soldwould be but an incident of that proceeding. SUMMARY 1. The District Court is the only courtwith original jurisdictionto try a suit for the forfeiture of illicit alcoholicbeverages. 2. The Texas Liquor Control Board is not authorized to pay court costs of a Justice of the Peace Court that has entered an order of forfeiture of illicitalcoholicbeverages, and said order does not pass title to suchbeverages to the State of Texas. Yours very truly, WILL WILSON Attorney General of Texas

Cecil Cammack,Jr. Assistant APPROVED: OPINION COMMITTEE REVIEWED FORTHEATTORNEY GENERAL W. V. Geppert, Chairman BY: Morgan Nesbitt Bob Armstrong Watson C. Arnold Elmer McVey