### 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 ofgambling paraphernalia after seizure and pending destruction proceedings, (2) Proper officer to destroy gambling paraphernalia on order of court.

We have carefully date inwhich you request considered your letter ofrecent
our opinion as towhether equipment seized as gambling paraphernalia by a Texas Ranger should be retained In the custody of theRanger seizing the same pendingadestructlon under order of the court. You also ask whether the destruction order should be directed to theRanger 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 ofgaming. 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 

### 633authorizes magistrates to issue search warrants and directs the seizure of "anygambling paraphernalia, device or equipment" found upon execution of suchwarrant. With reference to theduty ofpeace officers and the court inrespect toproperty taken into custody as gambling paraphernalia, etc., we direct attention to the provisions ofArticle 

### 636and a portion ofArticle 

### 637,as amended, from which we quote the following:

"Art.

### 636. It shall be theduty of every sheriff, orother peace officer by virtue of thewarrant authorized by this chapter to seize and take into his possession all gaming tables, devices and other equipments or paraphernalia ofgambling houses, the existence ofwhich has come to his knowledge and to immediately filewith the justice of the peace, countyHonorable Homer Garrison, Jr., page 2 o-4748

judge, or district judge, awritten list of the property seized designating the place where same was seized, and,the owner of same, or the person fromwhom possession was taken. Thereupon said justice of the peace, county ordistrict judge shall note the same upon hisdocket and issue, or cause the clerk of the court to issue awritten notice to the owner orperson inwhose possession the articles seizedwere found, commanding him toappear at adesignated time, not earlier than five days from the service of such notice, and show cause why such articles should not be destroyed. Ifpersonal service cannot be had upon the person towhom same isdirected, a copy of saidnotice shall be posted for not less than five days, either upon the court house door of the county where theproceedings are begun or upon the building or premises fromwhich theproperty seized was taken.

"Art.637. Section

. Ifupon hearing of thematter referred to in the preceding Article, the Justice of the Peace, County Judge orDistrlct Judge, before whom the cause ispending, shall determine that the property seized isa gaming table orbank or isused as equipment or paraphernalia for a gambling house, and was beingused for gaming purposes, he shall order
same to be destroyed, but any part of samemay, by order of the Court be held as evidence to be used~inany case until the case is finally disposed of. Property not of that character and not soused 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 ofwhich has been ordered by the Court, unless the owner, lessee orperson entitled to possession under this law shall, before the destruction of said property, file suit to recover same. Acts 1907, page 110.

"Sec. 2. Ifupon a hearing of the matter referred to inArticle 636, Penal Code of Texas (1925), the Justice of the Peace, County Judge
orDistrict Judge before whom the cause ispending shall determine,that the property seized,
or any part thereof, isnot gambling paraphernalia per se,but that the same orany partHonorable 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 saidproperty is capable of being used for some legal purposes, hemay, in his discretion, by order of the Court, 'declarethe same confiscated and cause the same tobe delivered to the State ofTexas,
or any political subdivision thereof, or toany State Institution tobe 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 incompliance with the orders of the Court.

!‘Sec.

### 3. Ifupon a hearing of the matter referred to inArtl%le 

### 636,Penal Code of Texas the Justice of the Peace, County Judge orDistrict Judge before whom the cause Ispending, shall determine that the property seized isa gaming table, bank or gambling paraphernalia and equipment per se, or if the Justice of the Peace, County Judge orDistrict Judge shall~ determlne that the same, orany part thereof,
was in fact used as equipment or paraphernalia for a gambling house orwas being used forgaming purposes, then any money or coins seized in orwith said equipment orparaphernalia shall, by order of the Court, be declared confiscated, and the Court shall cause the same tobe delivered to the State of Texas orany political subdivision thereof, or to any State institution tobe used by It for its own use and benefit, or the Court may in itsdlscretion order suchmoney or coins tobe delivered to the Grand Jury of the County Inwhich such equipment or paraphernalia was seized, to be used by saidGrand Jury for the purpose of investigating the violation of the gaming laws of this State or for the purpose of investigatingviolations 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 theDistrict Judge impanelling the same the amount ofmoney received under the provisions of this Section and an accounting of all funds expended, and the balance of such~funds, lfany, shall be turned over to the Clerk of saidDistrict Court, tobe held by said Clerk until the next Grand Jury is lmpanelled, atwhich timeHonorable Homer Garrison, Jr., page 4 

### o-4748

suchmoney 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 thatArticles 

### 632 633and 

### 636,Penal Code, make it theduty of "peace officers' to,execute searches and seizures forgambling devices. Article 

### 36 of the Code of Criminal Procedure defines peace officers to be: "The sheriff and hisdeputies, constable, themarshal orpoliceman 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

### 1935,44thLeg., ch. 

### 181, p. 444, as amended Acts 

### 1937,45thLeg., 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 folinSection 11 (Vernon's, Article 

### 4413

Ranger Force and its person-

, . nel, property, equipment ana recoras, now a part of theAdjutant General's Department of the State of Texas, are hereby transferred to and placed under the jurisdiction of theDepartment of Public Safety, and are hereby designated as the Texas Rangers, and as such, constitute the above mentioned division of theDepartment. 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 tomake arrests, and to execute process In criminal cases; and in civil cases when specially directed by the judge of a court ofrecord; and inall 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 inany 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 tomake arrests, as directed bywarrants, and without awarrant under the conditions now authorized by law, and also in all cases when the alleged offender is traveling on a railroad, ina motor vehicle, aeroplane
orboat. When any of said force shall arrest any person charged with a criminal offense, they shall forthwith convey said person to the 'countywhere 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~ofthe State under theDepartment of Public Safety, the officials shall Inall cases where itbecomes 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 aDistrict Judge in theDistrict where such property is seized, who shalldispose of same ln themode andmanner now provided byArticles Nos. 5112, 

### 5113and 

### 5114, Revised Civil Statutes 1925.
II I,

. . . . . Investigation of the reference innumbered paragraph of the above quotation toArticles 5112, 

### 5113,and 

### 5114, ised Civil Statutes 1925, discloses that said articles referred'to themode ofdisposing 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 

### 1935,44thLeg., 2nd C. S.,ch. 

### 467,p. 

### 1795). Irrespective of the effect of such repeal itwill be observed that such paragraph 

### (6)only requires theDistrict 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, isdirectly applicable togambling equipment and paraphernalia, and prescribes the method ofdestroying same.

It is our opinion that "theofficer" referred to in Article 

### 637, supra, refers to the officer seizing the equipment mentioned InArticles 

### 632,633and 

### 636,and that when property Is seized by a Texas Ranger by virtue of the provlsions of the laws condemning gambling, it is theduty of such Ranger to retain the property until final disposition by the. .

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

court. It isalso our opinion that the destruction order, when made Inaccordance with the provisions ofArticle 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