Untitled Texas Attorney General Opinion

Honorable Bert To*d, Adminirtrator Texas Liquor Control Board Austin, Texas Dear Sirt Opinion So. O-6569 Rot Would a parron be permitted to tranlport liquor from a wet oounty to friend8 in a dry county without . permit? May tha Btrto forfeit 8m autcmo- bile rhioh ~88 not 8eitad atthe time the liquor -8 found? Your raquort forthir department18 opinion on th* following faota and question8 read8 in part a8 follow8: "That on or ndout July ZOth, 1944, 4 %a# driving hi8 automobile upon the.8tnet.i of Oltiey,Young County, Texa8. The deputy rhoriff of Young Qunty, TBAB, 8.1 thm oar and 8anuhat they thought maa whi8k.y and bar on the -ok seat of the oar.' There uwo four men riding in the oar, bolud- ing the driver. Three of them war. intoxioated. Tk depu- ty sheriff and the oity marshal1 approached the oar ta make an inve8tigntion and found that they had 8avea quarts of whirkey and four oaaae of her in the oar. The offlsarr reired tb Ihi8key and beer and arrested A, who wa8 very drunk, ana permitted thb other8 to go home. They placed A in jail at Graham, Young County, Texar. Thy did not reiao the nutomobile at that tima. The Couxty Attorney's office filed a complaint and information on A for'po88esrion of whi8key for purpose of sale.' About two weeks later the Counfy Attorneyto offio* filed a oharge of 'illegal t~8- port&ion of liquor.* A and hi8 owpanion8 rt the time of lrreet olaianodjoint ownership of the whiskey to the extent that eaoh one onned a quart of whiskey and that they brought three qurrhr back for other friend8 living in the town and that they were bringing a aaae of beer eaah to their friend8 in Olaey, naming than a.~B and three others. "Quortidm 1: Under the law would A be permitted to tranrport liquor to the8e friend8 without a permit? "Question 2: lbuld A be pwmittad to tranrport the liquor for hi8 friend8 ridbg with h@e in the oar without a permit? Honorable Eert Ford - Page 2 (O-6389) "Question 3r Could the sheriff, with the proper pn- pers,.confiscate the automobile now or after the trial of the criminal case where it WIT not seized at the time that whiskey was seized? In other words, if it were seized, must it be asized at the time the liquor was found?" (Sub- stitution of names in personal letter was made by this ds- partment.) ?R have oarefully considered the alcovestated questions and in answer to lbmixrs 1 and 2 direct your attention to Article 666-27(a) of Vernon's Annotated Penal Cods, which provides a8 follows; the same ib being transported, to-exhibit such &it&n stata- ment to the Board or any of its authorized representatives or to nny psaae officer making demand therefor, end it shall be unlawful for any person to fail or refuse to exhibit the same upon such demand. Such written statement shell be accept- ed by such representative or office a8 prima facie evidence of ths lawful right to transport such liquor." (Raphnsis added) We believe the above emphasized seotion manifests in clear and un- ambiguous wording the legislative intent to render it unlawful for any psr- son to transport liquor without the prescribed written statement from the Xpper. Therefore, xv answer your questions ??umbars1 and 2 in the nega- tive. J% have found no Texas deoisions bearing on your third question, but in view of the fact that Article 666-44, V.A.P.C., relating to the seizure and forfeiture of automobiles is patterned after and borrows heavi- ly fran the former Federal provision of the Volstead Law (Section 26), passed on October 20, 1919, 41 Stat. 316, we are of the opinion that the case of United States V. Slusser, 270 Fed. 616, construing said section of the Volstead Law is controlling. Article 666-44, Vernon's Annotated Penal Code, reads in part as followsr Hon. Bert Fod - Page 3 (O-6369) "It is further provided thst if nny wagon, buggy, automobile, water or air craft, or any other vehicle is used for the transportation of any illioit beverage or any equipment designed to be used for illegnl manufact- uring of illicit beverages, or any material of any kind which is to be used in the manufadurine. of illicit bev- erages, such vehicle together with all such beverages, equipnsnt.,or material shall be seized without warrant by any representative of the Board or any peace officer who shall arrest any person in charge thereof. Such officer shall at once proceed against the person arrest- ed and all principals, aocomplioss, and accessories to such unlawful act, in any court having competent juris- diction3 . . ." (Emphasis added) Seotion 26 of the Federal Volstead Law reads in part ns followsr "Sec. 40. Wen the commissioner, his assistants, inspeotors, or any officer of the law shall discovur any mrson in the not of transWrtillF:in violation of the law. Intoxioating liquors in'ani wagon, buggy, automobile, nat& or air oraft..or other vshiole. it shall be his d&v to seize any 'hiTa all intoxionti~g liquors found therein bQing transported oontrary to law. Whenever intoxicating liquors transported or possessed illegally shall be seized by an officer he shall take possession of the vehicle and team or automobile, boat, air or water craft, or any other oon- vevanoe. and shall arrest aw nerson in ohnrEa thereof. S&h ~of?icarshall at once pboased ngninst t& person ar- rested under the provisions of this chapter in any aourt having oompetent jurisdiction: , . ." (Bnphasis added) The case of United States v. Slusssr, Supra, on page 620, headnote 6, sets out the essential elements in the forfeiture of an automobile under Section 26 of the Volstead Law as followsr "(6) Third, ns to the right of restitution: The forfeiture of an automobile, under the twenty-sixth sea- tion of the Volstead Law, must lx in strict pursuanoe to the terms thereof. United States v. H:rdes(D.C.) 267 Fed. 471; the Goodhope, 266 Fed. 694. The following elements are essentialr "(1) That en offioer of the law discover scme person in the not of illegally transport- ing liquor in n vehicle. "(2) The seizure of the liquor so transport- ed or possessed. Hon. Bert Ford - Page 4 (O-6389) "(3) The seizure of the vehicle and arrest of the persons. "(4) That fhs officer ,prooeedagainst the person atidr&&In the vehiole, unless redelivered to the owner, upon giving bond to return it to the custody of the offioer on the day of trial to abide the judpent of the court. "(5) Conviction of the person and order of sals of the vehicle. "(6) Distribution of the prooesds. "The highest degree of evidence, vizr that an officer of the law ~erceivs 8ome)~ person in the aot of illegal transpor- tion, is n&ssary. Se&r8 of the vehicle can oniy ta made when liquor is seized. The law does not forfeit all vehicle8 at some time used for illegal transportation of liquor, but only those taken in the act. One may be convicted of illegal transportation, yet the vehicle will not be forfeited, unless seized at the time. U. S. v. Eydss, supra. The seizing offi- o8r is to have the vehicle in possession on the diy of the trial of the person arrested, Eo abide the judgment in the 8ame prov8eding. Should the defendant be acquitted, the automobile must be released, fbr it is only upon aonviction that its sale may be ordered." (Emphasis added) Thus, in 8n8wer to your third question, it is our opinion that the automobile must be seized at the time the liquor is found. very trW1y yours ATTORNEY GENERAL OF TEXAS By /s/Benjamin Woodall Assistant BMrdb:jrb:egw By /8/ Bob Maddox APPROVED M&Y 22, 1945 Assistant /s/GROVER SELLERS ATTORNEY GKWRAL OFTEXAS Approved: Opinion Committee By GRIB,Chairman