Untitled Texas Attorney General Opinion

September 23, 1949 Bon. James C. Mnrtfn 0plnlon Ho. v-911 county Attorney Huecea county lie:The aqthority of tha Corpus Christi, Texas county court to con- flscate firearms upon a conviction for un- Dear 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 be- fore 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 docket entry to the effect that the weapon involved In the case la confiscated by the Court for disposal as the Co\urt sees fit. We have thus far never had any appsel or dlffl- culty attendant to this practice. But la checking the authority of the County Court to follov such practice, the wrlt- er 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 aaddle bags any pistol, dlrk, dagger, slung-shot, sword cane, spear or ImucUea mmde of 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 $500.00 or by confinement in jail for not less than one month nor more thsn one year.” I . Bon. James C. MsrtIn, psege 2 (V-911) Generally speaking, the authority for tha for- feiture or confiscation of a weapon must be derived &am the general lav of the State. In the case of Clt ~Coun- cl1 v. Leomrd, 39 S.E. 248 (s.C.Sup.1901), It +: was 88 ” . . . Althou& ve hold that the en- era1 assembly of this State has clothe II the City Council of Abbevllle with power to pass the ordinances for the vlolatlon of vhich the defendant vas convicted, yet ve hold, at the same time, that It had no power to affix the penalty of a forfeiture of the pistol used by defendant. lo such power I$ 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 leg- islative authority.” Article 51 of Vernon’s Penal Code provides: “When a convict IS Imprisoned In the penitentiary, his property shall be con- trolled 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 OS Texas, provides: Bon. James C. mrtln, page 3 (V-911) "Iloconviction shall vork corruption of blood, or forfeiture of estate, and the estates of those rho destroy their own lives shall descend or vest as la the case of lutural death." By virtue of the foregolllgauthoritiesIt Is our opinion that the County Court of Eueces County would not be authorizedto enter a judgreRt COnfl8Catlng the weapon subssquent to a conviction pursuant to Article 483, V.P.C., for unlawfully carrying arms. SUIMARY There Is no authority for the county court to coaflscatea weapon of a defendant subsequentto.a,eonvIctIonfor an offense of unlawfully carrylq arms mlthin the maulng of Article 403;T.P.C; Yours very truly, ATTORH'EY~EMlLRN,OFTEXAS Bu:bh:mw ,L’ B: LWWQ Burnell \laldrap ’ Asslst8ai / R.U FIRST ASSISTAWT ' ATTOBIILIOXBHUL