Honorable J. H. O'Neall 

County Attorney 

Swisher County 

Tulia, Texas 

Dear Sir: Opinion No. O-4722 

Re: Article 666-44, V. A. P. C.-- 

Opinion No. 0-4040--searches, 

seizures and forfeitures. 

Your request for opinion has been received and 

carefully considered by this department. We quote from your 

request as follows: 

"Opinion No. O-4040 

Re: Art. 666-44 V.A.P.C. 

&aRckRS, sfzi;zrazzzi and &?ffRiture. 

April 17th. 1942 

The following questions have grown out of 

the matters referred to in the above opinion and 

the facts are as follows: The car mentioned in 

said opinion was released as stated in my letter. 

The defendent learning that the car was released 

fled to Oklahoma and is still there. Since we 

have no car he seems to feel that we are helpless 

because of the release of the car and the bond 

which was approved by the sheriff of Lubbock County and accepted by our sheriff (for his appearance 

for trial) in not collectable-- securities no good. 

"I am confident that if we can again take posssession (legally) of the car the defendant will 

again appear since he and pretended owner of car 

are friends. I think we can locate car. 

"QUESTION 

"I think we are warranted under the law to 

again take the car since it was not legally released and is still in hands of the pretended 

owner. AM I RIGHT? 

"If I have rightly construed the law, would 

it require a court order to repossess the car? 

"We are having trouble plenty with bootleggers and will appreciate your early reply to this. 
Hon. J. H. O'Neall, Page 2 

"QUESTION TWO 

"If the car is ordered sold by the court and 

a valid lien holder establishes his claim and said 

claim is more than the highest bid on the car- Can 

he take all the proceeds before costs are paid or 

must he take the balance after said costs are paid?" 

In our opinion No.O-4040, addressed to you, we 

hold that the Sheriff had no authority to release the automobile under the facts stated in your letter in the manner 

that he did. We quoted Article 666-44, Vernon's Annotated 

Texas Penal Code, as authority for such holding. Since you 

already have a copy of this opinion we do not feel.it necessary to again quote this Article or to elaborate on our 

holding in said opinion. 

In answer to your first question it is our opinion 

under the facts given that the Sheriff would not be authorized to re-take possession of the car unless he had a court 

order. (Of course, though, if the car was transporting whiskey again he could take it and the whiskey without a court 

order: however, we assume from your letter that the car is 

not now being used for transporting whiskey.) 

In answer to your second question it is our opinion that the costs must be paid before the lien from the 

proceeds of the sale of the car. See Article 666-44, Very 

non's Annotated Texas .Penal Code, which provides in part 

as follows: 

II . . . and the officer making the sale, after 

deduction the expenses of keeping the property, the 

seizure, and the cost of the sale, shall pay all 

liens, according to their priorities. . . W 

Very truly yours 

ATTORNEY GENERAL OF TEXAS 

By /s/ Wm. J. Fanning 

Assistant 

APPROVED JULY 31, 1942 

/s/ Gerald C. Mann 

ATTORNEY GENERAL OF TEXAS 

APPROVED OPINION COMMITTEE 

By BWB, Chairman