Untitled Texas Attorney General Opinion

c OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN Zonorsblc 2. 7:. i3urkhalter ~,.cting County Attorney Throckmorton, Texas Cear Sir: Re :Lasooaftioq of liquor sei&d.by shsriff in a dry areaunder Texas Liquor Control Ace, ,,., you have requested the/opinion.of this deo;rt-' ment concerning the!disgositionof,intoxicating liquors seized by a sheriff in a dry area.,-> ?Wthink the question is answered by the follo;ring.?rwisions of th.:! Texas Lirluor ::ontrolAct (Articles 666 and 661, YemoB's :;nnotatxiPenal i:odaof Texas, as amended): rlrticlo66&3a;, .,, ~._ '. "The fol$owihg definitions of.&rds and terms shall Opply as usbd Sh this Act: '!I r'~lcoholic"Bevra~s'.~~ha;fl mean alcohol and B~~-"Bevera~e':con'ta~ni~morethan one-half of,,bneper:,.cent of aldohc$ by volume which is c,gpabX'e'@@us,e for bov=gaagepurposes, either aloac or wh@'diluted. ‘1.. ‘~~~~AJ&t3ileverage * shall tilean and refer to anp%alcoh 'ic beverage manufactured, distri- buted, bu@ r sold, bottled, rectified, blanded, treated, fortified, mixed, processed.,warehoused, 'stored,possessed, imported, or transported in Violation of this Act, or on which any tax iaposed by the laws of this State has not been paid and the tax stamp affixed thereto; and any alcoholic beverage Gossessed, kapt, stored, owned, or imported with int,?nt to manufacture, sell distribute, bottle rectify, ~;onorabloD. ::t. Surkhaltar, ::age2 blond, treat, fortify, nix, process, Warehouse, sto.r3,or transport in violation of the provi- sions of this act.?' Article 666-29, as annndsd: !'(a) iiff room, building, boat, structure, or place of any kind whsre alch,oholicbdvsrages are sold, bartered, manufactured, stored, pos- sessed or consumsd in violation of t3ie hot, or under oonditions and circumstances contrary to the purposes of this Act, and all sxh bsv- erages and all _rropertykept andussd in any such place, hereby are declared to ba a common uui- salice'and any person who maintains or assists in ;;~aintainirg suck common nuisance shall be zuilty~of a violation of this Act. ~. . ." Article 636-42, as amend-d: "(3) All nlcoi:olicb:tvorarjeodeclriredby this i&t to be a nuisance, and all illicit bev- erages es derined by this Act, may be seized with or wvitbouta warrant by an agent or em- . ?loyee of the Texas Liquor Control Doard, or by any peace officer, and any parson round in the possession or in charge thereor my be arrested without a warrant. Wo alcoholic beverages or articles so seized shall be replevied, but shall be stor:d by the Board, or by the sheriff or.t,heCounty wherein the seizure was made, to be held for final action of the court as here- after provided. "(b) It shall be the duty of the Attorney General, the District Attorney, and the County Attorney, or any of them, when notified by the officer making the seizure, or by the Texas Liquor Control Board, that such seizure has beon made, to institute a suit for forfeiture of such alconolic beverages antiproperty, ouch suit to be brought in the name or the State of Texas in any court of competent jurisoiot$on in the county Honora'bleD. W. Durkhaltsr, page 3 wherein such eeizure was made. Notice of pen- dency of such suit shall be served in the man- ner prescribed by law and the case shall ?rocaad to trial as other civil cases. If upon the trial of such suit it is found that alcobollc beveragas or property are a nuisance or were used or kept in maintaining a nuisanoe, under tha terms of this Act, or that the alooholio beverage is illicit, as dafined by this Act, then the court trying said cause shall render judeant forfeiting the same to the State of Texas and ordering the same disposed of as pro- viaed for by Section 30 of this Article. The costs of suah proceedings shall be paid by the Board, out of funds derived under the provisions of said Section 30, or from any other fund avail- able to the Doard for such purposs. ". . . ." Article 666-30, as amentisd: "ia) All alcoholic b-jveragesand the oon- tainars thereof, equipment, and other yrogerty forfeited to the State as nuisances, unless otherwise herein provided, and all illicit bev- erages and the containers thereof forfeited to the state, shall be turned over to the Board for public or private sale in such place or manner as it may deem best; Irovided, that the Board shall exercise diligent effort to obtain the best available price for anything thus sold; provided, further, that any bill of sale execut- ed by the Board or Administrator shall convey a good and valid title to the purchaser as to any such property sold. The Board shall sell alco- holic beverages only to the holders of qualified permits or licenses. No alcoholic beverage un- fit to be sold for public consumption or of illicit manufacture, may be sold by the Board, but are declared a nuisance per se and may be destroyed.by the Board. The certificate of any qualified ohemist shall be accepted by the Board as evidence?of unfitness of such alco- holic bevrages." I Honorable D. ;. Rurkhalter, page 4 In addition to these statutory provisions con- c3rning tl:edisposition of liquor lawfully seized by an en- foroemvnt officer, we would like to aall your attention to the well recognized rule whicn has baen aptly stated in a leading case as hollows: '"It is not only the common practice, but the requirement of the common law, that articles whiah may tilpplyevidence of guilt of a party accused found in his possession or under his control may be taken in poss3ssion by the Officer officiating in making the arrest; and, indeed, it is the duty of such officer to take into his possession and retain such articles, subject to the power and direction of the court of justice having cognizance of the alleged aMme. This principle is one of necessity in tha administration of the criminal _ law, and it is generally recognized by the oourts of the country with few, if any, exceptions." Simpson VS. .y it. John, 93 W.Y. 363. See also 11 A.L.R. 681, and 13 A.L.R. 1168. :;e trust that ne.have answered your inquiry in a mannilr that +I11 be of some aid to you. Very truly yours, ATTORNEY GXNERAL OF ThW BY Bugene Alris Aesiatant EA:D-d:ZH APPROVED OCT. 10, 1944 s.-Carlos Ashley FIRST ASSISTANT AlTORNEY GENERAL