(dissenting).
I respectfully dissent. As I view the record, the search and seizure here involved was unreasonable in violation of the Fourth Amendment, United States Constitution and Article I, Sec. 9, Texas Constitution, Vernon’s Ann.St.; See also Article 1.06, V.A.C.C.P. Therefore, the fruits of the warrantless search were inadmissible and their admission, over objection, calls, in my opinion, for reversal.
Officer Cantrell of the Burglary and Theft Detail of the Dallas Police Department testified that after talking to the alleged thief, he went to the Wine Stop Liquor store at 2608 Bexar Street in the City of Dallas near 5 p. m. on September 15, 1966, for the purpose of conducting the *522search in question. The record shows that the premises in question were “licensed premises” within the meaning of the Texas Liquor Control Act (Article 666-1, V.A. P.C.).
Cantrell testified that his purpose in going to the premises in question was solely to look for suits stolen from the J. C. Penney store; that he did not have a warrant and did not try to get one; that he did take the alleged thief before a magistrate (see Article 15.17, V.A.C.C.P.) prior to the search but that he did not attempt to secure a search warrant from such magistrate since he was a City Corporation Court Judge and did not have such authority;1 that he knew he did not need a warrant since his authority was the state liquor law which authority he had used many times before; that no liquor law violations on the premises in question had been reported to him; that he did not go for the purpose of looking for liquor law violations and that after arriving he did not observe any liquor law violations.
Cantrell acknowledged that after entering the retail section of the building which was open for business he went along a hall to a room with a locked door not open to the public which lock he “forced” or “jimmied” with his pocket knife. Therein he found the man’s suit and tag offered in evidence and a bed and other items described in the majority’s opinion. The appellant was not present at the time and no arrest was made before or after the search in question.
The majority upholds the search in question by virtue of the authority of Article 666-13 (d), V.A.P.C., which reads as follows :
“It is expressly provided that the acceptance of a permit or license issued under either Article I or Article II of this Act shall constitute an express agreement and consent on the part of the permittee or licensee that the Board, any of its authorized representatives, or any peace officer shall have at all times the right and privilege of freely entering upon the licensed premises for the purpose of conducting any investigation or for inspecting said premises for the purpose of performing any duty imposed by this Act upon the Board, its representative, or any peace officer.”
Article 666-20, V.A.P.C., relating to the issuance of search warrants, also reads in part:
“All such alcoholic beverages and articles shall be seized by the officer executing the warrant and shall not be taken from the custody of any officer by writ of replevin nor any other process but shall be held by such officer to await final judgment in the proceedings. It is not intended by the provisions of this Section that a search warrant shall be required for any peace officer or any agent, representative, or inspector of the Board to search any premise covered by any permit or license under the provisions of this Act. Acts 1935, 44th Leg., 2nd C.S., p. 1795, ch. 467, Art. 1, § 20, added Acts 1937, 45th Leg., p. 1053, ch. 448, § 25.”
In Plainos v. State, 131 Tex.Cr.R. 516, 100 S.W.2d 367; Plainos v. State, 132 Tex.Cr.R. 110, 102 S.W.2d 217; Kelley v. State, 133 Tex.Cr.R. 180, 109 S.W.2d 482 and in Hines v. State, Tex.Cr.App., 362 S.W.2d 652, the right of a peace officer to make a warrantless search of the licensed premises was upheld. Cf. Rone v. State, 132 Tex.Cr.R. 23, 101 S.W.2d 1017. In each case, however, the violation involved was that of the Texas Liquor Control Act and-the search was conducted for the purpose of enforcing that law. I have no quarrel with the soundness of these decisions. I fully agree that the acceptance of a license or permit under the Texas Liquor Control *523Act is an implied consent to such inspection and visitorial examination as is required for the purpose of enforcing that act and is an implied waiver of the constitutional immunity to that extent, but to that extent only.
The first Plainos case and the Kelley case, supra, were quoted with approval in Schepps v. State, Tex.Cr.App., 432 S.W.2d 926, 931. There the authority granted Liquor Control Board Inspectors by Article 666-13 (d), supra, was favorably compared with the authority granted to the Comptroller and his employees and assistants under Articles 7.27 and 7.01 of Title 122A, V.A.T.S. Nothing in Schepps suggests, however, that such statutes authorized any police officer to enter upon the premises of any person licensed by the State Comptroller as a tobacco distributor for the purpose of “any investigation” or for the purpose of a general and exploratory search unrelated to the purposes of the statute.
In Brown v. State, Tex.Cr.App., 391 S.W.2d 425, the defendant was convicted of unlawful possession of barbiturates. There, for the first time, this court interpreted Article 666-13 (d), supra, as authorizing a search of licensed premises for violations other than liquor law violations. The search in Brown was, however, held equally sustainable as a result of the consent to search which was given at the time of the search. In the case át bar there is no question of such consent since even Cantrell admitted that the employee on duty questioned his authority to enter the locked room.
In Brown, it is observed that to reach the desired effect the opinion quotes Article 666-13 (d) out of context. The majority in the case at bar utilizes the same approach in its final conclusion that the acceptance of liquor license or permit constitutes an intelligent, voluntary and knowing waiver of the constitutional right against all unreasonable searches and seizures, at any time of the day or night, whether related to regulation of the liquor law or not. They, too, quote Article 666— 13(d), supra, out of context in support of such conclusion.2 In my humble opinion, the majority paints with too broad a brush in its decision of waiver.
It appears to be the majority’s position that a licensee or permittee relinquishes certain constitutional guarantees and agrees to submit to all police searches even though not essential to the purpose of the Texas Liquor Control Act, and that the scope of the authority of the searching officer is not limited. The majority thus grants to all peace officers a blank form of a general warrant to search all licensed premises at any time under any circumstances eliminating the necessity of ever obtaining in advance judicial approval of searches and seizures through the warrant procedure.
Does this broad waiver or assent upon the acceptance of a license or permit under the Texas Liquor Control Act waive the constitutional rights of others such as managers and employees? May customers and patrons on such licensed premises be searched? I think not. See Davids v. State, 208 Md. 377, 118 A.2d 636; Mason v. Wrightson, 205 Md. 481, 109 A.2d 128. The licensee in question was the appellant’s brother, Eugene Clark, not the appellant who was the manager of the store and used the room in question to rest during the *524day and as sleeping quarters on weekends. The majority does not discuss, however, appellant’s standing to complain or the effect upon him of the third party’s implied consent to search. Cf. Mancusi v. De Forte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154.
I cannot conclude in considering the entire Texas Liquor Control Act in context that it was the legislative intent in enacting Articles 666-13(d) and 666-20, supra, to authorize any peace officer, at any time, to conduct without a warrant a search of licensed premises unlimited in scope and regardless of whether the conditions are reasonable or unreasonable for a purpose totally unrelated to the Texas Liquor Control Act. Cf. State of Iowa v. Union Asphalt and Roadoils, Inc., D.C., 281 F.Supp. 391. As I read the statute, the authorization of any investigation or inspection is “for the purpose of performing any duty imposed by this Act upon the Board, its representative, or any peace officer.”
If I be wrong as to the legislative intent, then I think a serious question of the constitutionality of such statutes is involved insofar as they authorize a warrantless search in connection with just “any investigation.”
Camara v. Municipal Court, 387 U.S. 523, 530, 87 S.Ct. 1727, 18 L.Ed.2d 930, and See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943, extended Fourth Amendment protections to administrative searches. In Camara the court expressly limited its decision to “searches of the kind at issue here” meaning, as I take it, searches conducted pursuant to broad grants of authority rather than narrow warrants. The majority opinion in both Camara and See observed that warrantless searches are still permitted “in certain carefully defined classes of cases,” the standard being whether the burden of obtaining a search warrant is likely to frustrate the governmental purpose behind the search. The court explicitly stated that it did not question the regulation of licensing programs by inspection. See People v. White, 259 Cal.App.2d Supp. 936, 65 Cal.Rptr. 923.
It would thus appear that the door was left open to warrantless administrative searches in those special situations where protection against excessive intrusion upon the individual’s privacy could be reasonably assured and the objectives demanded by the public interest would be frustrated if the inspectors were required to obtain warrants. See Colonnade Catering Corp. v. United States, 2 Cir., 410 F.2d 197.
If Article 666 — 13 (d), supra, is to be given the construction contended by the majority, it would authorize the broad type of search condemned in the Camara and See cases. Under the majority’s interpretation any peace officer may enter licensed premises at any time for the purpose of making “any investigation” or for making general and exploratory searches without warrants, whether related to the Texas Liquor Control Act or not. The scope of the permissible intrusion is not therefore carefully restricted. Further, the search victim or victims have no way of knowing the lawful limits of the officer or whether the officer was acting properly. Liquor dealers know that they are engaged in a heavily regulated business, have accepted the regulations, and usually are aware of liquor law regulations to which they are subject, but they cannot be aware of all other purposes for which officers may search. Certainly it cannot be said that the statutes here involved impose restrictions that a warrant operates to impose in other searches.
Therefore, in my opinion, the lack of a warrant rendered the search in question unreasonable and fruits thereof inadmissible. In my opinion Officer Cantrell exceeded the statutory authority conferred and the statute cannot and should not be used to immunize his action. It should be borne in mind that we are not here dealing with a situation where an officer is lawfully in a place where he has a right to be and observed evidence of crime in plain view or where in the process of a valid inspection or *525search for the purpose of enforcing the Texas Liquor Control Act he observes evidence of another crime.
For the reasons stated, I dissent.
. Officer Cantrell was in error. Article 2.-09, V.A.C.C.P., provides that “judges of the city courts of incorporated cities or towns” are magistrates and magistrates may issue search warrants. Article 18.01, V.A.C.C.P.
. In Tucker v. State, 244 Md. 488, 224 A.2d 111, relied upon by the majority, it is observed that the officers entered the licensed premises by virtue of a search warrant, unlike the case at bar. Tucker attacked the search warrant since it authorized a search of the entire premises whereas the statements intended to constitute probable cause for the issuance of the search warrant were directed to one room only. In upholding the search the court pointed out that the heroin was, in fact, found in the single room described in the supporting affidavit. Only in disposing of one of Tucker’s contentions did the Maryland Court mention the state’s statute authorizing the inspection and warrantless search of licensed premises. Such statute (Article 2b, Sec. 190) is not at all worded like the Texas statute.