Honorable J. H. O'Neall
County Attorney
Swisher County
Tulia, Texas

Dear Sir:                            Opinion No. O-4040
                                     Rer Article 666-44, V.A.P.C.
                                     Searches, Seizures and forfsit-
                                     w-es.

          Your request for opinion has been recieved and carefully consid-
ered by this department. we quote from your request PS follows:

                 "The Sheriff stops A on public highway, searohss
            his oar, finds oonsiderable load of whisky, (66 pints)
            arrests saidA, seized the car and other equipnant con-
            sisting of containers & brings said A and all seized
            property into tow and files complaint.

                 "Then Sheriff takes appearance bond for next tern
            of County Court som 30 days hence. Thereupon said A
            employes an attorney who has the said appearance bond
            executed and presents title papers showing that the car
            conveying said liquor is in name of another, a 'friend'
            of defendant with purchase money lien held by a cer-
            tain finance concern in another county.

                 "The County Attorney refuses to agree to release
            said car on such showing and insists the matter is a
            matter for the court to hear and decide at time of hear-
            ing of defendant's case, or other time if court sees fit,
            to determine whether the oar should be released to said
            alleged owner.

                 "The sheriff, however, over the urgent protest of
            the county attorney releases said car, without order of
            the court, alaiming the title papers showing such title
            in said purported 'FRIEND OF DEFENDANT' places the res-
            ponsibility on him and therefore releases said car.

                 "It is our opinion that when said arrest has been
            made,.proper complaint filed and the property brought in,
            all matters thereafter are for the court and the author-
            ity of the sheriff is at an end until the further order
            of the court.
Honorable J. H. O'Neall -- Page 2 (o-4040)



                "Article 666-44, (CC) provides:

                " It is further provided that if any . . .
           automobile . . . or any other vehicle is used for
           the transportation of any illicit beverage, or any
           equipment designed to be used for illegal manufao-
           turing of illicit beverages, such vehicle, togeth-
           er with all such beverages, equipment or material,
           shall be seized, without warrant by any rspresenta-
           tive of the Board or any peace officer who shall
           arrest any person in charge thereof, Such officer
           shall at once proceed against the person arrtsted
           and ALL PRINCIPALS ACCOMPLICES AND ACCESSORIES TO
           SUCH UNLAWFUL ACT, UNDER THE PROVISIONS OF THIS ACT,
           IN ANY COURT HAVING COMPETENT JURISDICTIONI BUT
           SAID VEHICLE OR CONVEYANCE SHALL BE RETURNED TO THE
           OMU3R UPON EXECUTION BY HIM OF A GOOD AND VALID BOND.
           WITH SUFFICIENT SURETIES IN A SUM WJBLE OF THE AP-
           PRAISED VALUE OF THE PROFERTY, WHICH SAID BOND SHALL
           BE APPROVED BY SAID OFFICER AND SHALL BE CONDITIONED
           TO RETURN SAID PROPERTY TO THE CUSTODY OF SAID OFFI-
           CER ON THE DAY OF TRIAL TO ABIDE JUKMENT OF COURT.'

                "Then follows the provisions for the sale and
           disposition of the stuff 80 seized.



                "1. Under the law and faots stated, did the sheriff
           act without authority of law in releasing said car?

                "2. Under said Art. would the sheriff have any dis-
           cretion as to whether he should seize the conveyance and
           paraphernalia?

                "3 . After seizure, is the sheriff authorized to re-
           lease said seizure or any part thereof without order of
           court?

                “4.  Is said provision as to the seizure of both liquor
           and other property mandatory, or may he seize liquor only?

                "No question has been raised as to the legality of the
           search, arrest and seizure."

           Article 666-44, Vernon's Annotated Texas Penal Code, reads as
fOllOwS*

                "It is further provided that if any wagon, buggy, auto-
           mobile, water or air craft, or any other vehicle is used for
                -.                               ---X




Honorable J. H. OVsall   - Page 3 (o-4040)



          the transportation of any illicit beverage or any equip-
          ment designed to be used for illegal manufacturing of il-
          licit bevemges, or any material of any kind which is to
          be used in the manufacturs of illicit beverages, such ve-
          hicle together with all such beverages, equipment, or ma-
          terial shall be seized without warrant by any reprssenta-
          tive of thd Board or any peace officer who shall arrest
          any person in charge thereof. Such officer shall at once
          proceed against,the person arrested and all principals,
          8coomplices, and accessories to suoh unlawful act, under
          the provisions of law, in any Court having oompetant jur-
          isdiction! but said vehicle or conveyance shall be returned
          to the owner upon execution by him of a good and valid bond,
          with sufficient sureties in 8 sum double the appraised value
          of the property, which said tind shall be approved by said
          officer and shall be conditioned to return said property
          to the custody of said officer on the day of trial to abids
          judgment of the Court. The Court upon conviction of the
          person so arrested shall order the alcoholic beverages dis-
          posed of IS provided in this Act,  and unless good cause to
          the contrary is shown bythe owner, shall order the sale by
          public auction of the property seized, and the officer mak-
          ing the sale, after deducting the expenses of keeping the
          property, the seizure, and the cost of the sale, shall pay
          all liens, aocording to priorities, which am established
          by intervention or otherwise at said hearing or in other
          proceedings brought for said purpose, as being bona fide
          and as having been cmated without the lien or having any
          notice that the carlying vehicle was being used or witsto
           be used for illegal transportation of liquor and shall pay
          the balance of the proceeds to the Board to be allooa.tad
           86 permit fees. All liens against property sold under this
           Section shall be transferred from the property to the pro-
           ceeds of its sale. If, however, no one shall be found
           claiming the team, vehicle, water or air oraft, or automo-
           bile, the taking of the'same, with a dssoription thereof,
           shall be advertised in some newspaper published in the city
           or county whom taken, or if there be no newspaper in such
           city or county, any newspaper having circulation in the
           county, once a week for tvm (2) weeks and by handbills post-
           ed in three (3) public places near the place of seizure, and
           if no claimant shall appsar within ten (10) days after the
           publioation of the advertisement, the property shall ba sold
           ad the proceeds after deducting the sxpenses and costs shall
           be paid to the Board to be allocated as permit fees."

           We quote from 38 Texas Jurisprudence, p. 432, as follows:

                "A sheriff is an officer mentioned in article 5
           of the Constitution, titled 'Judicial Departments'
Honorable J. H. O'Ns*ll - - Page 4 (o-4040)



             nevertheless he is concerned with the administration
             of justice only PS I ministerial offioer, *8 distin-
             guished from those officers who h*ve judicial func-
             tions. Hence it is not his province to determine any
             douutful questions *rising in the course of his offi-
             cial duties and it is not proper that he should be
             dire&ad to sot in * judicial c*p*oity."

             You are respectfully advised that it is the opinion of this
de~rtmsntr

             1.   Your first question is answered in the affirmative.

           2.  It is unnecessary to answer your second question bec*us.a
the facts show that the sheriff did seize the property.

           3. In answer to your third question it is our opinion that
the sheriff under the facts stated would not be *uthoriead to release
the automobile without an order of the court or without the bond required
by the statute.

           4. In answer to your fourth question, it is our opinion that
said provision is mandatory.

                                                    Very truly yours

                                                ATTORNEY GENERAL OF TEXAS

                                                By s/W.   J. Fanning

                                                       VBn. J. Fanning
                                                             Assistant
APPROVED APR 17, 1942
s/ Grover Sellers
FIRST ASSISTANT
ATTORNEY GNNERAL

WJF:GOregw                                        APPROVED Opinion Committee
                                                  By BlTBChairmPn
