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

Dear Sir:                      Opinion No. O-4722
                               Re: Article 666-44, V. A. P. C.--
                                    Opinion No. 0-4040--searches,
                                    seizures and forfeitures.

          Your request for opinion has been received and
carefully considered by this department.  We quote from your
request as follows:

                               "Opinion No. O-4040
                               Re: Art. 666-44 V.A.P.C.
                               &aRckRS, sfzi;zrazzzi
                                                   and &?ffRiture.
                               April 17th. 1942

          The following questions have grown out of
     the matters referred to in the above opinion and
     the facts are as follows: The car mentioned in
     said opinion was released as stated in my letter.
     The defendent learning that the car was released
     fled to Oklahoma and is still there. Since we
     have no car he seems to feel that we are helpless
     because of the release of the car and the bond
     which was approved by the sheriff of Lubbock Coun-
     ty and accepted by our sheriff (for his appearance
     for trial) in not collectable-- securities no good.

          "I am confident that if we can again take pos-
     ssession (legally) of the car the defendant will
     again appear since he and pretended owner of car
     are friends. I think we can locate car.

              "QUESTION
          "I think we are warranted under the law to
     again take the car since it was not legally re-
     leased and is still in hands of the pretended
     owner. AM I RIGHT?
          "If I have rightly construed the law, would
     it require a court order to repossess the car?
          "We are having trouble plenty with bootleg-
     gers and will appreciate your early reply to this.
Hon. J. H. O'Neall, Page 2


                "QUESTION TWO

         "If the car is ordered sold by the court and
    a valid lien holder establishes his claim and said
    claim is more than the highest bid on the car- Can
    he take all the proceeds before costs are paid or
    must he take the balance after said costs are paid?"

         In our opinion No.O-4040, addressed to you, we
    hold that the Sheriff had no authority to release the auto-
    mobile under the facts stated in your letter in the manner
    that he did. We quoted Article 666-44, Vernon's Annotated
    Texas Penal Code, as authority for such holding. Since you
    already have a copy of this opinion we do not feel.it neces-
    sary to again quote this Article or to elaborate on our
    holding in said opinion.

         In answer to your first question it is our opinion
    under the facts given that the Sheriff would not be author-
    ized to re-take possession of the car unless he had a court
    order.   (Of course, though, if the car was transporting whis-
    key again he could take it and the whiskey without a court
    order: however, we assume from your letter that the car is
    not now being used for transporting whiskey.)

         In answer to your second question it is our opin-
    ion that the costs must be paid before the lien from the
    proceeds of the sale of the car. See Article 666-44, Very
    non's Annotated Texas .Penal Code, which provides in part
    as follows:
         II. . . and the officer making the sale, after
    deduction the expenses of keeping the property, the
    seizure, and the cost of the sale, shall pay all
    liens, according to their priorities. . . W

                                    Very truly yours

                                ATTORNEY GENERAL OF TEXAS

                                By /s/   Wm. J. Fanning
                                              Assistant
    APPROVED JULY 31, 1942
    /s/ Gerald C. Mann
    ATTORNEY GENERAL OF TEXAS

                                  APPROVED OPINION COMMITTEE
                                        By BWB, Chairman
