Honorable Bert Ford

Administrator Texas Liquor ControlBoard Austin, Texas Opinion NO. 

### o-4898 Re: Under Article 1, Section 44 of the Texas Liquor Control Act is the judgment ordering the sale of a seizedvehicle a necessary part of the judgment of convlction of the defendant, and related questions?
Dear Sir:

Your letter of October 1, 1942, requesting the oplnion of this department on the questions stated therein reads a3 follows:

"Article I, Section 44, of the Texas Liquor Control Act reads as follows:
"'It is further provided that if any wagon, buggy, automobile,water or air craft, or ang bther vehicle is used for the transportation of any llllcltbeverage or any equipxe:?t designed to be used for Illegalmanufacturing of illicit heveragez, or any material of any kind which is to be used in the manufacturing of illicitbeverages, such vehicle togetherwith all suchbeverages, equlpment,ormaterial shallhe seizedwithoutwarrant by any representative of the Board or any peace officerwho shall arrest any person in charge thereof. Such officer shall at once proceed against the person arrested and all principals, accomplices,and accessories to such unlawful act, under the provisions of law, In any court having competent jurisdiction;but zald vehicle or conveyance shallbe returned to the ownerupon executionby him of a good and valid bond,with sufficient sureties in a sum double the appraised value of the property,which saidHonorable Bert Ford - page 2 

### o-4898

be conditioned to return said property to the custody of said officer on the day of trial to abide judgment of the court, The court upon conviction of the person so arrested shall order the alcoholicbeverages disposed of as provided in thisAct, and unless good cause to the contrary
Is shown by the owner shall order the sale by public auction of the property seized,and the officer making the sale,after deducting the expenses of keeping the property, the seizure,and the cost of the ssle, shall pay all liens, according to priori.- ties,which are establishedby interventionor otherwise at said hearing or In other proceedings brought for saidpurpose, as belt-g bona fide and as having been cr,eated without the lien or having any notice that the carrying vehiclewas being used orwas to be used for ill.egal transportation of liquor and shall pay the halance of the proceeds to the Board to be allocated as permit fees. All liens against property sold under this Section shallbe transferred from the property to the proceeds of its sale. If, however, no one shallbe found claiming the team, vehicle,water or air craft, or automobile, the taking of the zame,with dezcrlption thereof, shall be advertised in some newspaper published In the city or countywhere taken, or if there be no newspaper in such city or county, any newspaperhaving circulation in the county once a week for two (2)weeks and by handbillsposted inthree 

### (3)public places near the place of seizure, and if no claimant shall appearwith ten (10)days after the publlcatlon of the advertisement, the property shallbe aold and the proceedsafter deducting the expenses and costs shallhe paid to the Board to be allocated as permit fess.' "Thep~ovizions of Sectlon 44 ebovequoted are not clear as towhether the judgment of the court MS to sale of the zelzed vehicle muzt be a part of the judgmentof conviction, and it 1s furthernot clear as to when said judgment of forfejtcre shouldbe entered. Your valued opinion is requested In response to the followingquestions:
"1

. Is judgment ordering the zale of the z&red vehicle a necessary part of a ju3gmentof conviction of the defendant?
"2

. If judgmentas to sale 1s not a necessary part of the judgment of the conviction, then wouldHonorable Bert Ford - page 

### 3 o-4898

a judgment ordering sale be valid if entered at any time during the term of court inwhich the defendant has been convicted? 

### "3

. If not answered In response to the previous questions submitted,what limitation of timewould prevail after conviction as to judgment of forfelture of the seized vehicle?"
In the first paragraph on page 2 of your letter you inquireas "as to when said judgmentof forfeiture should be entered". The proceeding involved Fn the disposition of the property seized under Article 1, Section 44 oftthe Texas Liquor ControlAct Is not a proceeding to forfeit. We direct your attention to the langua e of the court in the case of Pharizs v. Klmbrough 118 S. W. 72d) 

### 661,where the court Ispreferring to the same kFnd of proceeding as Fs involvedhere and says: "Theproceeding Is therefore not to forfeit;but to enforce the forfeiture thst has resulted under the statutes of the conviction of unlawful transportation of intoxicating liquor, in the commission of whLch offense the automobilewas used

f,

. . . . It will be noted that Article 1, Section 44 of the Texas Liquor ControlAct, supra, expresslyprovides in part: "Thecourt upon convlction of the person so arrested shall order the alcoholic beverages disposed of as provided In this Act and unless good cause to thecontrary Is shown by the owner, shall order the sale by public auction of the property seized, and the officermaking the sale, after deducting the expenses of keeping the property; the seizure, and the cost of the sale, shall pay all liens, according to priorities, which are establishedby lnterventlonor otherwise at said hearing or In other proceedingsbrought for said purpose, as being bona fide and as having been createdwIthout the lien or having any notice thatthe carryingvehiclewas being used orwas to be used for Illegal transportation of liquor and stallpay the balance of the proceeds to the Board to be allocated as permit fees. All liens against property sold under this Section shall be transferred from the property to the proceeds of its sale."

We do not think that the order of sale by public auction of the property seized upon conviction of the person so arrested of the criminal offense constitutesany part of a judgment of conviction of the defendant. The Acts which are defined and made criminal,offensezunder the Texas Liquor ControlAct are offenses of a misdemeanor grade.

Article 

### 766Vernon's Annotated Code of Crlmlnal Pro-. . r

.

Honorable Bert Ford - page 4 

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cedure defines the constituentsand requirements of a final judgment in felony cases. While the first 8 subdivisionsof Article 

### 766,supra, defining the constituentsand requirements of a final.judgmentapply~to judgments inmisdemeanor cases, subdivisions9 and 10, requiring the judgmentto adjudge the defendantguilty and specify that he be punishedas then determinedby the jury,do not apply. However, in lieu of subdivisions 9 and 10,Article 783, Vernon'sAnnotated Code of CriminalProcedureprovides: "Whenthe defendant is only fined the judgment shallbe that the State ofTexas recover of the defendant the amount of such fine and all costs of the prosecution,and that the defendant, If present,be committed to jailuntil such fine and costs are paid; or if the defendant be not present, that a capias forthwith issue, commanding the sheriffto arrest the defendant and commit him to jailuntil such fine and costs are paid; also, that executionmay issue against the property of such defendant for the amount of such fine and costs."

Article 784,Vernon's Annotated Code of Criminal Procedureprovides: "If the punishment is any other than a fine, the judgment shall specify it, and order it enforcedby the properprocess. It shall also adjudge the costs against the defendant,and order the collection thereof as in other cases."

As above pointed out itwill be noted that Article 1, Section 44 of the Texas Liquor ControlAct imposesa duty upon the courtupon conviction of the person so arrestedunless good cause to the contrary Is shownby the owner, shall order the saleby a public auction of the property seized. Itwill be noted that the statutedoes not specifyany time that such order of sale shallbe made exceptupon the convictFon of the person arrested.

In view of the foregoingwe answer your question,as follows: With reference to your first question it Is our oplnIon that the order of sale of the seized vehicle Is not a necessarypart of the judgmentof convlctlon of the defendant.

In reply to your second question you are advised that it is our opinion that an order of sale of the seizedproperty by the court upon conviction of the person arrestedwould be validat any time enteredduring the,term of court inwhich the defendanthas been convicted, provided, the seized property is still in the possession of the court or the seizing officers?,"unlessgood cause to the contrary is shown by the owner. It is our further opinion that the court could enter a valid order of sale of the seized property upon conviction of the person arrested at any term of court, provided, said property stillremains in the possession of the court or seizing. . . .

Honorable Bert Ford - page 

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officers, owner." "unlessgood cause to the contrary is shownby the

We think that our answers to your first two questions necessarily answer your third question.

Trusting that the foregoing fully answers your inquirywe are
Yours very truly
ATTORNEX TENERAL OF TEXAS

By s/ArdellWilliams Ardell Williams Assistant
AW:PO:wc

APPROVED OCT 14, 1942 s/GroverSellers FIRST ASSISTANT ATTORNEY GENERAL Approved Opinion Committee By s/BWB Chairman