September 23, 1949

Bon. James C. Mnrtfn 0plnlon Ho. v-911 county Attorney Huecea county 

### lie: The aqthorityof tha Corpus Christi, Texas county court to conflscate firearms upon a conviction for unDear Mr. Uartia: lawfully carrying arms.

Your **request** for an op1nloa la substantially as follows:

**“ For**  years it has been the practice of the County Court of 

### lIuec*a %ounty, Texas, that when a person la brought before the Court charged with the crime of uulawfully carrying arma under &tlcle 483 of the Penal Code of Texas, the Court in its judgment makes 

### a docketentry to the effect that the weapon involved In the case la confiscated by the Court for disposal as the Co\urt sees fit. Wehave thus far never had any appsel or dlfflculty attendant to this practice. But la checking the authority of the County Court to follov such practice, the wrlter la of the opinion that 

### no such **auth** ority exlt4ts.” Article 483, **v.P.c., is**  

### as followr: “Whoever shall carry on or about his person, Baddle, or in his 

### aaddlebags any pistol, dlrk, dagger, slung-shot, sword cane, spear or ImucUea mmdeof any nuttal or any hard **substance,** bowle knife, or any other kalfe manufactured or sold for the purposes of offense or defense, shall be punished **by** fine not less than $lOO.CO **nor more**  than **$500.00** or by confinement in jail for not less than one month nor morethsn one year.”I

.

Bon. James C. MsrtIn, psege2 (V-911)

Generally speaking, the authority for tha 

### forfeiture or confiscation of a weapon must be derived &am the general lav of the State. In the case of Clt ~Councl1 v. Leomrd, 39 S.E. 248 (s.C.Sup.1901), It 

### was 88 +: ”

. . .Althou& ve hold that the enera1 assembly of this State has clothe II the City Council of Abbevllle with power to pass the ordinances for the vlolatlon of vhich the defendant vas convicted, yet ve hold, at the same time, that It had no powerto affix the penalty 

### of a forfeiture of the pistol used by defendant. lo such power I$ conferred by the Constitution.

. .n We-have been unable to Slnd any authority In this State for the confiscation of a weapon subsequent to a conviction for the offense of unlawfully carrying: arms within the meaning of Article 483, Vernon’s Penal Code. The cases cited by you In your brief have been most helpful In arriving at this conclusion.

In the case of Jennings v. State, 5 Ter.Ct. App.298 (1878), the Court declared a portion of Article 6512, Paschal’s Digest, which Is now Article &83, V.P.C., to be unconstitutional, such unconstitutional pro~lslon providing for a forfeiture to the County of the v*pon In case .oS convIctIoa. The Court specifically stated that:

“We believe that portion of the Act which provides that, In case of conviction, the defendant shell forfeit to the county the weapon or veapons so found on or about his person Is not within the scope of legislative authority.” Article 51 of 

### Vernon’sPenal Code provides:

“Whena convict IS Imprisoned In the penitentiary, his property shall be controlled as directed by law; but there shall in no criminal case be a forfeiture of any kind to the State.* In this regard Section 21 of Article I (The RI11 of Rights) of the Constitution OSTexas, provides:

### Bon. JamesC. mrtln, 

### page 3 

### (V-911)

"Ilo convictionshallvork 

### corruption of blood, 

### or forfeitureof estate,**and** 

### the estatesof thoserho destroytheir own lives shalldescendor vest as la the **case** 

### of luturaldeath." By **virtue** 

### of the foregolllg authoritiesIt Is our opinionthatthe CountyCourt 

### of **Eueces**

### Countywould not be authorizedto enter a 

### judgreRtCOnfl8Catlng

### the **weapon subssquent** 

### to a 

### convictionpursuantto Article 483, 

### V.P.C.,for 

### unlawfullycarryingarms. 

### SUIMARY There Is no authorityfor the county courtto coaflscatea 

### weapon of a defendant subsequent

to.a,eonvIctIon

for 

### an offenseof **unlawfully** 

### carrylq arms 

### mlthin themaulng of Article403;T.P.C;
Yours very truly, 

### ATTORH'EY~EMlLRN,OFTEXAS

Bu:bh:mw 

# ,L’ ’ B: 

### Burnell\ LWWQ

laldrap Asslst8ai /

**R.U** 

### FIRSTASSISTAWT ' ATTOBIILI

OXBHUL