HEA~LTORNEY GENERAL 

OF TEXAS 

Honorable Homer Garrison, Jr., Director 

Department of Public Safety 

Camp Mabry 

Austin, Texas 

Dear Sir: Oolnion No. O-4748 

Re: (1) Custody of gambling paraphernalia after seizure and 

pending destruction proceedings, 

(2) Proper officer to destroy 

gambling paraphernalia on order 

of court. 

We have carefully 

date in which you request 

considered your letter of recent 

our opinion as to whether equipment 

seized as gambling paraphernalia by a Texas Ranger should be 

retained In the custody of the Ranger seizing the same pending a destructlon under order of the court. You also ask 

whether the destruction order should be directed to the Ranger 

or to the Sheriff of the county wherein the property was 

seized. 

The Penal Code of this State devotes an entlre chapter to the subject of gaming. Article 632 of said Code requires any "sheriff or other peace officer" having knowledge 

of a violation of the laws against gaming to "Immediately 

avail himself of all lawful means to suppress such violation." 

Article 633 authorizes magistrates to issue search 

warrants and directs the seizure of "any gambling paraphernalia, device or equipment" found upon execution of such warrant. With reference to the duty of peace officers and the 

court in respect to property taken into custody as gambling 

paraphernalia, etc., we direct attention to the provisions 

of Article 636 and a portion of Article 637, as amended, from 

which we quote the following: 

"Art. 636. It shall be the duty of every sheriff, 

orother peace officer by virtue of the warrant authorized by this chapter to seize and take into his 

possession all gaming tables, devices and other equipments or paraphernalia of gambling houses, the existence of which has come to his knowledge and to 

immediately file with the justice of the peace, county 
Honorable Homer Garrison, Jr., page 2 o-4748 

judge, or district judge, a written list of the 

property seized designating the place where same 

was seized, and, the owner of same, or the person 

from whom possession was taken. Thereupon said 

justice of the peace, county or district judge 

shall note the same upon his docket and issue, or 

cause the clerk of the court to issue a written 

notice to the owner or person in whose possession the articles seized were found, commanding 

him to appear at a designated time, not earlier 

than five days from the service of such notice, 

and show cause why such articles should not be 

destroyed. If personal service cannot be had upon the person to whom same is directed, a copy 

of said notice shall be posted for not less than 

five days, either upon the court house door of 

the county where the proceedings are begun or upon the building or premises from which the property seized was taken. 

"Art. 637. Section . If upon hearing of 

the matter referred to in the preceding Article, 

the Justice of the Peace, County Judge or Distrlct Judge, before whom the cause is pending, 

shall determine that the property seized is a 

gaming table or bank or is used as equipment or 

paraphernalia for a gambling house, and was being used for gaming purposes, he shall order 

same to be destroyed, but any part of same may, 

by order of the Court be held as evidence to be 

used~ in any case until the case is finally disposed of. Property not of that character and 

not so used shall be ordered returned to the 

person entitled to possession of the same. The 

officer, within not less than fifteen (15) nor 

more than thirty (30) days from the entry of 

said order shall destroy all property the destruction of which has been ordered by the Court, 

unless the owner, lessee or person entitled to 

possession under this law shall, before the 

destruction of said property, file suit to recover same. Acts 1907, page 110. 

"Sec. 2. If upon a hearing of the matter 

referred to in Article 636, Penal Code of Texas 

(1925), the Justice of the Peace, County Judge 

or District Judge before whom the cause is pending shall determine,that the property seized, 

or any part thereof, is not gambling paraphernalia per se, but that the same or any part 
Honorable Homer Garrison, Jr., page 3 o-4748 

thereof was used as equipment or paraphernalia 

for a gambling house and was being used for 

gaming purposes and that said property is 

capable of being used for some legal purposes, 

he may, in his discretion, by order of the 

Court, 'declare the same confiscated and cause 

the same to be delivered to the State of Texas, 

or any political subdivision thereof, or to any 

State Institution to be kept by it for Its own 

use and benefit. The officer shall show'by his 

return the disposition of the property made by 

him, which shall be in compliance with the 

orders of the Court. 

!‘Sec. 3. If upon a hearing of the matter 

referred to in Artl%le 636, Penal Code of Texas 

the Justice of the Peace, County Judge or District Judge before whom the cause Is pending, 

shall determine that the property seized is a 

gaming table, bank or gambling paraphernalia 

and equipment per se, or if the Justice of the 

Peace, County Judge or District Judge shall~ 

determlne that the same, or any part thereof, 

was in fact used as equipment or paraphernalia 

for a gambling house or was being used for gaming purposes, then any money or coins seized 

in or with said equipment or paraphernalia 

shall, by order of the Court, be declared confiscated, and the Court shall cause the same 

to be delivered to the State of Texas or any 

political subdivision thereof, or to any State 

institution to be used by It for its own use 

and benefit, or the Court may in its dlscretion order such money or coins to be delivered 

to the Grand Jury of the County In which such 

equipment or paraphernalia was seized, to be 

used by said Grand Jury for the purpose of investigating the violation of the gaming laws 

of this State or for the purpose of investigating violations of any of the provisions of the 

Penal Code of this State; At the end of the 

term of each Grand Jury and before the discharge of the same, the Grand Jury shall report 

to the District Judge impanelling the same the 

amount of money received under the provisions 

of this Section and an accounting of all funds 

expended, and the balance of such~ funds, lf any, 

shall be turned over to the Clerk of said District Court, to be held by said Clerk until the 

next Grand Jury is lmpanelled, at which time 
Honorable Homer Garrison, Jr., page 4 o-4748 

such money will be turned over and delivered to 

such succeeding Grand Jury. 

I! 11 

. . . . . 

From a careful reading of the above~ cited and quoted 

statutes it is observed that Articles 632 633 and 636, Penal 

Code, make it the duty of "peace officers' to, execute searches 

and seizures for gambling devices. Article 36 of the Code of 

Criminal Procedure defines peace officers to be: "The sheriff 

and his deputies, constable, the marshal or policeman of any 

incorporated town or city, the officers, non-commissioned 

officers and privates of the State ranger force, and any private person specially appointed to execute criminal process." 

Among the provisions of the act creating the TexasDepartment of Public Safety (Acts 1935, 44th Leg., ch. 181, 

p. 444, as amended Acts 1937, 45th Leg., ch. 373, p. 772, 

Vernon's Annotated Civil Statutes. Articles 4411 (1) - 4411 

(29) ) which places the 

the jurisdiction of the 

language appears 

"(1) The Texas 

Texas Ranger force and personnel under 

Department of Public Safety, the folin Section 11 (Vernon's, Article 4413 

Ranger Force and its person- 

, . nel, property, equipment ana recoras, now a part 

of the Adjutant General's Department of the State 

of Texas, are hereby transferred to and placed 

under the jurisdiction of the Department of Public 

Safety, and are hereby designated as the Texas 

Rangers, and as such, constitute the above mentioned division of the Department. 

11 

. . . . . 

"(4) The officers shall be clothed with all 

the powers of peace officers, and shall aid in 

the execution of the laws. 

"They shall have authority to make arrests, 

and to execute process In criminal cases; and in 

civil cases when specially directed by the judge 

of a court of record; and in all cases shall be 

governed by the laws regulating and defining 

the powers and duties of sheriffs when in the 

discharge of similar duties; except that they 

shall have the power and shall be authorized to 

make arrests and to execute all process in 

criminal cases in any county in the State. All 

officers operating by virtue of this Act shall 
, I 

Honorable Homer Garrison, Jr., page 5 o-4748 

have the authority to make arrests, as directed 

by warrants, and without a warrant under the 

conditions now authorized by law, and also in 

all cases when the alleged offender is traveling on a railroad, in a motor vehicle, aeroplane 

or boat. When any of said force shall arrest 

any person charged with a criminal offense, they 

shall forthwith convey said person to the 

'county where he so stands charged, and shall deliver him to the proper officer, taking his 

receipt therefor. All necessary expenses thus 

incurred shall be paid by the State. 

II 

. . . . . 

“(6) In the execution of the laws ~of the 

State under the Department of Public Safety, 

the officials shall In all cases where it becomes necessary to seize property and destroy 

the same, to proceed as now provided by law; 

and all property so seized shall be stored and 

a list thereof presented to a District Judge in 

the District where such property is seized, who 

shall dispose of same ln the mode and manner now 

provided by Articles Nos. 5112, 5113 and 5114, 

Revised Civil Statutes 1925. 

II I, 

. . . . . 

Investigation of the reference in numbered paragraph 

of the above quotation to Articles 5112, 5113, and 5114, 

ised Civil Statutes 1925, discloses that said articles referred'to the mode of disposing of properties seized under 

the liquor laws in effect at the time of the passage of the 

Texas Public Safety Act, supra. Said articles,were repealed 

in 1935 (Acts 1935, 44th Leg., 2nd C. S.,ch. 467, p. 1795). 

Irrespective of the effect of such repeal it will be observed 

that such paragraph (6) only requires the District Judge to 

dispose of the property seized in accordance therewith and 

does not specify additional duties of the officer; whereas, 

Article 637 of the Penal Code, supra, is directly applicable 

to gambling equipment and paraphernalia, and prescribes the 

method of destroying same. 

It is our opinion that "the officer" referred to in 

Article 637, supra, refers to the officer seizing the equipment mentioned In Articles 632, 633 and 636, and that when 

property Is seized by a Texas Ranger by virtue of the provlsions of the laws condemning gambling, it is the duty of such 

Ranger to retain the property until final disposition by the 
. . 

Honorable Homer Garrison, Jr., page 6 O-4748 

court. It is also our opinion that the destruction order, 

when made In accordance with the provisions of Article 637, 

should be directed to the officer having custody of the 

property - in this case, the Texas Ranger, and not to the 

Sheriff or any other officer. 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

By s/Benjamin Woodall 

Benjamin Woodall 

Assistant 

BW:GO:wc 

APPROVED AUG 5, 1942 

s/Gerald C. Mann 

ATTORNEY GENERAL OF TEXAS 

Approved Opinion Committee By s/BWB Chairman