R-896
EA
‘L
PRICE DANIEL’
Aucvrnv
11.Texas
ATTORNEYGENERAL
December 30, 1947
Han, Sherwood Brown, Jr, Opinion No. 'V-469
County Attorney
Galveston County Re: Authority'of a com-
Galveston, Texas missionersO court to
purchase an automo-
bile for the county
juvenile officer with
money seised in a
gambling house raid,
Dear Sir:
Reference is made to your letter and enclo-
sures of recent date wherefn you request the opinion of
this Department on the following question:
"Does the County Auditor have authority
to advertise for and purchase an automobile
for the Juvenile Officer of Galveston County,
Texas, with money sefsed,in a gambling house
raid, said money being declared confiscated
by an order of the District Judge under the
provisions of Artiele 637, Penal Code of
Texas, and delivered ,to the County by said
order upon the condition that it be used for
that purpose, where said money was deposited
by the 6ounty,Audftor in the General Fund,
and where there is no pr.ovisfonunder %he
law permittfng the purchase by the County of
Galveston of an automobile for the Juvenile
Officer?"
This Department, following the decisions af
the Texas courts, has repeatedly held that the Commie-
sionersQ Court is a Court of limited jurisdiction and
has only,such powers as are conferred upon it by the
statutes and Constitution of this State, either by ex-
press terms or by necessary implication. See, 18 of
Art,,V, Constitutfonof Texas; Art, 2351, V,C,S.; Von
Rosenberg vsO Lovett, I.73S,W, 508; Galveston, H, & S,
A, Ry. Coo VS~ Uvalde County, 167 SOW, (2d) 1084; 11
Texi Jur, 5640
.. .
Hon. Sherwood Brown, Jr. - Page 2 (V-469)
In former Opinion No, O-5812 dated February
9. 1944. this Department had under consideration the
authority of the-Commissioners( Court to purchase au-
tomobiles for the county judge, county tax assessor-
collector and county probation officer, all to be used
in the performance of officialbusiness. In advising
that the Legislature of Texas, in the absence of a
special County Road and Bridge Law, and under provi-
sions of the general law, had granted authority to Com-
missioners' Courts to purchase automobiles for only the
sheriff and the district attorney or criminal district
attorney in certain counties, and for no other county
officials. The opinion used the following language:
"No other statutory or constitutional
authority exists, so far as we have been
able to ascertain, whereby a Commissioners
Court may furnish or allow an automobile
for the'use of any'county or district of-
ficials, other than those hereinabove listed.
"It is a familiar rule of construction
th&the specification of one partioular
excludes all other cl.asseso
v. &el, (Civ. App,) 61 S,W; (2d) 14"?t"
Also see 39 Tex. Jur,, pe 188, par. 100, in
which the Pexpressio unius' rule (the ex-
pression of one thing is exclusive of an-
other) is discussed. Said rule of construc-
tion clearly has application to the~ouestions
now under consideration, The Legislature has,
by general law, only designated two classes
of officers that might be allowed automobiles
for official use by the Commissioners',Court,
They are sheriffs and certain District Attor-
ne s or Criminal District Attorneys as afore-
eaf de Not having so designated any other of-
ficer or officers to whom the Commissionersq
Court might furnish or allow automobiles for
official use) the Legislature has granted no
authority by general law to said Court to
furnish or allow automobiles for such use to
any officials other than those already named."
We are aware of the special road law, with the
amendment thereto, under which Galveston County operates.
However, we find no authority contained in it forthe
purchase of an automobile for the county juvenile offi-
cer of Galveston County.
)
Hon, Sherwood Brown, Jr0 - Page 3 (V-469)
Tubing directly to the question now under con&
sideration, we quote Sec. 3 of Art, 637, V,P,C,, in part,
as follows:
"If upon a hearing of the matter referred
to in Art, 636, Penal 6ode of Texas the JUS-
tice of the Peace, 6ounty Judge or &Lstrict
Judge before whom the cause is pending, shall
determine that the property seized is a gaming
table, bank,or gambling paraphernalia and equip-
men% per 5e, or if Che Justice of the Peace,
County Judge or District Judge shall determine
that the same8 or any part thereof, was in
fact used as equipment OP paraphernalia for
gambling.house or was being used for gaming
purposes, then any money or coins seized in or
with said equipment or paraphernalia shall;by
order of the 60urt, be declared confiscated,
and the GOUP% shaalll
cause the same to be de-
livered to %he S&ate of Texas or any political
subdivision thereof, OP to any State institu-
tion to be used by it for its own use and bene-
fi%, or the Cour% may fn its dfscre%ion order
such money or coins to be delivered to the
Grand Jury of the county in which such equip-
ment or paraphernalia was seized; to be used
by said Grand Jury for the purpose of %nveati-
gatfn the violations of the gaming laws of
this 5tate or for the purpose of investigating
violations of any of the provisions of the
Penal 6ode of this State, O Qn
fiscated in a gambling house raid to GaYves%on 6ounty
burdened, however, with an express condition as to its
future use0
We quote Art, XVI See, 24 Gonstitution of
Texas, and Arts, 1626 and I&28, V,6,S, as foliows:
"Sec. 24, The Legislature shall make
provision for laying out and work%ng public
roads, for %he building of bridges, and for
utilizing fines, forfeitures, and convict
labor to a91 these purposesOn
Hon, Sherwood Brown, Jr. - Page 4 (V-469)
Art, 1626 reads as follows:
"Claims against a county shall be reg-
istered in three classes, as follows:
"1. All'jury scrip and scrip issued for
feeding jurors.,
"2. All scrip issued under the provi-
sions of the road law or for work done on
roads and bridges.
“3. All the general indebtedness of the
county, including feeding and guarding pris-
oners, and paupers9 claims,"
Art. 1628 reads as follows:
"The funds received by the county treas-
urer shall be classed as follows, and shall be
appropriated, respectively, to the.payment of
all claims regist~eredin the first, second and
tkiirdclasses:
"1, All jury fees;all money received
from the sale of estrays, and all occupation
taxes.
"2. All mon'eyreceived under any of the
provisions of the road and bridge law, in-
cluding the penalties recovered,from railroads
for failing to repair crossings, and all fines
and forfeitures,
“30 All money received, not otherwise ap-
ropriated herein or by the commissioners court."
PUnderlining supplied)
-Forfeiture is the loss of lands and goods to
the State, as the consequence of crime, and is distin-
guishable from confiscation in that the latter is the
consequence of the forme,r, Forfeiture is the result
which the law attaches as an immediate and necessary
consequence to the illegal acts of the individual; con-.
fiscation implies the action of the state, and property,
although it may be forfeited, cannot be said to be con-
fiscated until the government has formally claimed or
taken possession of itO BlackPs Law Dictionary, 3rd Ed,
. .
Hon. Sherwood Brown, Jr. - Page 5 (V-469)
Clearly a forfeiture has occurred in this case,
and the forfeited property has been confiscated by the
State0 Following the plain import of.the above quoted
constitutional and statutory mandates, if the District
.Judge gives the #1710060 to Galveston County it is to
be deposited in the road and bridge fund of Galveston
County. Once in the road and bridge fund, it becomes
county funds for all intents and purposes and is to be
expended by the commissioners' court as the Constitution
and statutes direct that road and bridge funds should be
spent.
The CommissionereD Court of Galveston County
is powerless to fulfill the condition placed upon the
use'of the Qbl7lOb60delivered to it under the terms of
Art. 637, V.P.C,, in the absence of statutory or con-
stitutional authority. The Commissioners' Court can
function only where authority ha6 been conferred upon it
and in this instance no authority to ex end county funds
for an automobile for the county juvenife officer exists,
In view of the fore$olyi we are of the opin-
ion that the county auditor o Ga veeton County has no
authority to advertise for and purchase an automobile
for the county juvenile officer with money confiscated
and delivered to Galveston County under the circumstances
you have outlined.
A commissionersP court has no authority
to purchase an automobile for the county ju-
venile'officer with money seised ina gambling
raid and declared confiscated by a district
court and delivered to the county upon condi-
tion that it make such purchase. Sec. 3$ Art.
637, V,P,C,; Seca 24 Art. XVI Texas Con&.,
Art. 1628 V.CoSos Opinion No, b-5812.
Yours very truly
APPROVED: ATTORNEY GENERAL OF TEXAS
BY
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