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