Untitled Texas Attorney General Opinion

OFFICE OF THE A7-l.ORNEY GENERAL OF TEXAS AUSTIN Yonorable Bert Ford, ~ditilniatrator Texas Liquor Control Board Austin6 TeXaa Dxir sir: ion of this dep as followar ly aware, there are such SB boot- ivcn or the Toxaa Liquor control 80, ootivelp engaged in the pro- olstors of this type but muoh untered in apprehending them, evideme of violations of la.%when one are restria~tedto dealings with the military foroed. *It ir often found desirable to attire law- enforoement offloers in a fashion that would de- ceive the oriminal into a reasonable belief that the officer ie a soldier. Xhaki olothing similar FIonorebleBert Ford, page.-2 to that of a aoldier oan readily be purohaaed In meroantlle sbbros which might serve the purpose, but In this connection there appeer to be oompli- cations which night give rlso to legal ob?ections to such practices. "One of the prosecutors of the ,'.tete haa.sd- visnd OS clrcumtenoes wherein two officers, at- tired in khaki clcthi&y purc?lasedprivately and bearl?c no Insignia thereon, ep;roaoked a boot- legeer catering only to soldiers enA were sold liquor by this bootlegger. One of the officers ' eotuslly wuae wearing a Sovermant iesued over- seas cap whiah hed been picked up in some plaoe and the other was without suoh e cap. Ties were of the testure and color worn by soldiers, ea were the tan shoes they wore. "The officers were clothed in this fashion for the axpress purpose of areatlng the Lmprea- sion in the mind of the bootlegger that they were soldiers of the United states AIIVIY. This took plaoe in the vicinity of one of the l8rge~mllitarg oamps looeted in the State. There is a question In the rnlndof the afore- mentioned prosecutor ,aa to the legality of lntro- ducing evidence obtained In this fashion, and.he has suggested that an opinion on the subject be obtained from your offloe. wArtiole 147 of Vernon*6 Penal Code provide8 ee follows: wYYhoever shall ssorete, sell, dispose of, offer foraale, purohaee, ret&In after demand made by a eommleaioned orrioer of the active militia of this State, or Ln any manner pawn or pledge any arms, uniroms, equipment6 or other military property, iesued under any provlalon of the law or of the military regulations of this State, and any pereon who shall wear any uniform, or pert thereof or devioe, atrap, knot or insignia of I any design er oharaotsr used as a deelgnation of Honorable Eert Ford6 page 9 grade, rank or offloe, suoh as are by law or by general regulations duly promulgated, presoriived ror the use of the active militia of the ;‘tate, 02.similar thereto, exoept members of the army OS th6 United States or the active nilitS% of thie or any other state shall be Sined not less than one hundred nor more than five hundred dollars.' Wkrtlole 727a, Vernon's Code of Criminal Fro- cedure, provid~es86 Sollowa: R*Xo evidenoe obtained by nnofficer or other person In violation of any plovisions OS the Con- stitution or laws 0r the State of Texas, or 0r tie Constitution of the united States of Ameri.ca,%hall be admitted in evidence against the accueod on the trial or nny criminal case.* Under these oircumstances we would appreciate your opinion in response ~to'the following questions: “1. Vould the introduction of evidenoe and the Offering of testimony by an offleer attired in a rashion designed to create the impression that he was a solaler or tha TfnitedStatesq army but none of which clothing was of G~Vernfmit issue, be legal in the prosecution for the offense of un- lawfully selling liquor $0 suoh officer in a dry wee? *2. v0ula the intxoauoti05 0r tlrviaenoeand the offering of testimony by an OSfiOer who waa oth%rv!iseattired In privately purcbaasedclothing, not OS Government issue but designed to oreate such impression, wearing an.overseas oap of Eovern- ment Sesue; be legal in the proseotuion of an of- renee of this cbarscter7" Sectl~on1893, Title 10, 0. 8. C. A., provides In part : *It shall be unlawful for any person not an offioer or enlisted man of the United States Army, Navy, or Karlne Corps to wear the duly prescribed Eoncrable J?%,rt Ford, psge 4 tdf01~11Or th8 United StetOe AZYII~, Navy, or.lzarin% corps, or any dlstinatlve pert of suoh uniform or a unlrorm any part of whioh la elmllar to a dis- tlnctlve pert of the duly presorLbed uniform of the