Honorable R. H; Jones
County Attorney, Polk County
Llvingeton, Texas
opinion No. Q-6966
Re: When a criminal prosecution
for unlawfully possessing
whiskey in a dry area for
purpoee of sale ie dismissed
because the whiskey to be
used 88 'evidence*e seized
illegally, what is the legal
disposition of such whiskey?
Dear Sir:
We heve received your recent inquiry, from which we quote aa
followe:
"A Search warrant wae ieeued by a Juetice of the Peace
to search the residence end premises of one Jewel1 Patterson.
The Search Warrant wae supported by the affidavit of only one
person, a deputy rheriff,stating that Alcoholic Liquors were
being kept end cold from there.
'The oificera went to said residence and found therein
38 quarts of regular sealed, labeled, and taxed whiskey, which
the sheriff took into hi6 poseeaeion,,receipted esid Pattereon
for ecune,end sent one copy inventory-receipt report to the
Liquor Control Board, es provided in Art. 666-30, (b).
"The caee wee eet for trial. Patterron had secured coun-
cl1 and the cam wee called for trial Nov. 30, 1945. The De-
fendante council moved to quash the Complaint on the grounds
that the Liquor wae seized under illegal Search Warrant in ,'
that on4 one effidavit supported it. This objection appeared
to me to be well founded, after reading Art. 666-20, and be-
lieving that.1 could not expect to get a conviction in the
case, I asked the Judge to diemiae the case, which he did.
"lbw, the quertion le, What ehall be done with,the
Liquor? I have failed to find any law applicable to such
a case. The defendant's council, though requested, hae
Honorable R. H. Jones - page 2 (o-6966)
failed to produce any law on the matter. It is unfortunate
that the Search Warrant was defective, for it is very evi-
dent that the liquor was possessed for the purpose of sale.
The Defendant lives in a very modest farm home and from
every visible appearance, a person of very small means, and
not one who would have had such an amount of liquor for his
own me. Since the case is dismissed, are the officers re-
quired to let defendant recover the liquor?"
Article 666-20, Vernon's Annotated Penal Code of the State of
Texas, on the subject of searches and seizures under the Texas Liquor Con-
trol Act, appears as follows:
"A search warrant may issue under Title 6 of the Code
of Criminal Procedure for the purpose of searching for,
seizing, and destroying any alcoholic beverage possessed,
sold, transported, manufactured, kept, or stored in viola-
tion of the provisions of this Act; for the purpose of
searching for and seizing any equipment and instrumentality
used for, capable of use for, or designed for use in the
manufacturing of any illicit beverage or any vehicle or in-
strumentality used or to be used for the illegaitransporta-
tion or storage of any illicit beverage, unlawful equipment,
or materials used or to be used in the illegal manufacturing
of any illicit beverage and for the purpose of searching for
and seizing any forged or counterfeit stamp, die, plate, of-
ficial signature, certificate, evidence of tax payment, li-
cense, or other instrument pertaining to this Act, or any
instrumentality, or equipment, or parts thereof used or to
be used, designed, or capable of use for the manufacturing,
printing, etching, inditing, or any other way bringing into
existence any forged or counterfeit stamp, die, plate, certi-
ficate, official signature, evidence of tax payment, permit,
license, or any other instrument pertaining to this Act.
"Search warrants may be issued by any magistrate upon
the affidavit of a credible person, setting forth the name
or description of the owner or person in charge of the prem-
ises to be searched, or stating that his name and description
are unknown, the address or description of the premises, and
showing that the described premise is a place where some speci-
fied phase or phases of this kct are violated or are being vio-
lated. If the place to be searched is a private dwelling occu-
pied as such and no part thereof is used as a store, shop, hotel,
boarding house, or sny purpose,other than a private residence
such affidavit shall be made by two (2) credible persons.
"Except as herein provided the application, issuance, and
execution of any such warrant and all proceedings relative
Honorable R. H. Jones - page 3 (O-6966)
thereto shallconform as near as may be to the provisions
of Title 6 of the Code of Criminal Procedure.
"All such alcoholic beverages end articlea shell be
seized by the officer executing the warrant and shall not
be taken from the custody of any officer by writ of replev-
in nor any other process but shall be held by such officer
to await final judgment in the proceedings. It is not in-
tended by the proviaione of this Section,that a search war-
rant shall be required for any peace officer or any agency,
representative, or inspector of the Board to search any
premise covered by any permit or license under the provi-
sions of this Act." (Underscoring edded for emphasis.)
Article 666-42, Vernon’s Annotated Penal Code of the State of
Texas, on the subject of seizure of liquors end the disposition of same,
appears 8s follows:
"(a) All alcoholic beverages declared by this Act to
be a nuisance, and all illicit beverages as defined by this
Ad;, may be seized with or without a warrant by an egent or
employee of the Texas Liquor'Control Board, or by any peace
officer, and any person found in the possession or in charge
thereof may be arrested without a warrant. Bo alcoholic
beverages or articles so seized shall be replevied, but shall
be stored by the Board, or by the sheriff of the county where-
in the seizure was made, to be held for final action of the
court as hereafter provided.
"(b) It shall be the duty of~the Attorney General, the
District Attorney, and the County Attorney, or eny of them,
when notified by the officer making the seizure, or by the
Texas Liquor Control Board, that such seieure has been made,
to institute e suit for forfeiture of such alcoholic bever-
ages and property, such suit to be brought in the neme of
the State of Texas in any court of competent jurisdiction
in the county wherein such seizure was made. Notice of pend-
ency of such suit shell be served in the manner prescribed by
law and the case shell proceed to trial as other civil cases.
If upon the trial of such suit it is found that alcoholic
beverages or property are,* nuisance or were used or kept in
maintaining e nuieencei,under the term of this Act, or that
the alcoholic beverage is illicit, as defined by this Act,
then the court trying said:cause shell render judgment for-
feiting the same to the State of Texas end ordering the same
disposed of as provided for by Section 30 of this Article.
The costs of such proceedings eball,be paid by the Board,
out of funds derived under the provisions of said Section 30,
or from eny other fund evaileble~to the Board for such purpose.
Honorable R. H. Jones - page 4 (o-6966)
"(c) As to any property or articles upon which there
may be a lien, by a bona fide lien holder, the holder of such
may intervene to establish his rights and shall be required
to show such lien to have been granted in a bona fide manner
and without knowledge of the fact at the time of creation of
the lien, that any article or property upon which such lien
exists bad been used or was to be used in violation of this
Act. If the holder of any such lien shall intervene, then
the court trying said cause shall render judgeant forfeiting
the same to the State of Texas, and authorizing the issuance
of an order of sale directed to the sheriff or any constable
of the county wherein the property was seized, commanding
such officer to sell said property in the same manner as per-
sonal property is sold under execution. The court may order
such property sold in whole or in part as it may deem proper
and the sale shall be conducted at the courthouse door. The
money realized from the sale of such property shall be applied
first to the payment of the costs of suit and expenses incident
to the sale and after such expenses have been approved and al-
lowed by the court trying the case, then the further proceeds
of such sale shall be used to pay all such liens according to
priorities and any remaining proceeds shall be paid to the
Board to be allocated as provided in Section 30 hereof. All
such liens against property sold under this Section shall be
transferred from the property to the proceeds of its sale.
"(d) The sheriff executing said sale shall issue a bill
of sale or certificate to the purchaser of said property, and
such bill of sale or certificate shall convey valid and unim-
paired title to such property." (Underscoring added.)
Article 666-3a, V.A.P.C., defines the term "Illicit Beverages"
as used in Article 666-42, supra, as follows:
"'Illicit Beverage' shall mean and refer to any alcoholic
beverage manufactured, distributed, bought, sold, bottled, recti-
fied, blended, treated, fortified, mixed, processed, warehoused,
stored, possessed, imported, or transported in violation of this
Act, or on which any tax imposed by the laws of this State has
not been paid end the tax stamp affixed thereto; and any alcoholic
beverage possessed, kept, stored, owned, or imported with intent
t 0 manuf*cture, sell, distribute, bottle, rectify, blend, treat,
fortify, mix, process, warehouse, store, or transport in viol*tion
of the provisions of this Act." (Underscoring added.)
Subsection (b) of Article 666-4, V.A.P.C., declares the follow-
ing to be in violation of the Texas Liquor Control Act:
"(b). It shall b&unlawful for any person in any dry area
to manufacture, distill, brew, sell, possess for the purpose of
Honorable R. 8. Jones - page 5 (o-6966)
sale, import into this State, export from the State, trans-
port, distribute, warehouse, atore, solicit or take orders
for, or for the purpose of sale to bottle, rectify, blend,
treat, fortify, mix, or process any liquor, distilled spir-
its, whiskey, gin, brandy, wine, rum, beer or ale." (Un-
derscoring added.)
You state that the criminal proceedings, based on the
seizure in question, have been dismissed. Even if such proceed-
ings had resulted in a conviction, in order to dispose of said
seized liquor legally, it would be necessary to proceed under
Article 666-42, supra, to declare such liquor an "illicit bever-
.3gew,i.e., unlawfully possessed in a dry area for the purpose
of sale. We do not believe the civil proceedings under Article
666-42, supra, to be dependent upon a criminal conviction as a
matter of law. As a practical matter, a prior conviction for
a criminal offense concerning the subject matter of the seizure
is highly desirable and, in soms cases, almost a necessity. In
the case in question, you may file a forfeiture suit against such
seized liquor under Article 666-42, supra, and attempt to prove
same an "illicit beverage", i.e., possessed in violation of the
Texas Liquor Control Act. This being a civil proceeding, Article
727*, Code of Criminal Procedure, prohibiting the use of evidence
illegally obtained on the trial of any criminal case, does not
control, and the result of the search and seizure in question
would be competent evidence therein. See McCormick and Ray, Texas
Evidence, page 308; Allison v. American Surety Company, 248 S. W.
829 (Civ. App.); and M&o11 et ux v. Hardin, 70 S. W. (2d) 327
(Civ. App.).
Whether or not a proceeding under said Article 666-42
would be warranted in the instant case can best be determined
by you. The strength of available proof as to the criminal in-
tent of the possessor of such liquor would be a matter to consider.
While the possession of more than one quart of whiskey would in-
voke the legal presumption of criminal intent as to its contemplated
use, yet it is a presumption only and rebuttable by contrary proof.
In the event no proceeding of forfeiture is instituted
under said Article 666-42, as outlined above, or if said proceeding
is instituted and judgment is rendered therein against the State of
Texas, then the said liquor should be returned to the person from
whom it was seized.
Honorable R. H. Jones - page 6 (O-6966)
Trusting this satisfactorily solves your problem, we
are
Yours very truly,
APPROVED DEC 17 1945 ATTORNEY GENERAL OF TEXAS
Id Grover Sellers
By /s/ Robert L, Lattimore, Jr.
A!-Ll!ORN!ZY
GENEWL OFTEXAS Robert L. Lattimre, Jr.
Assistant
RLL:gb:lm
APPR0VF.D
OPINION
COMt4ITl!EE
BY Is/ GWB
CHAE=MAN