.   .   .




                     THEA~TORNEYGENERAL
                                    OF    TEXAS




            Honorable Coke R. Stevenson, Jr.      Opinion No. WW-979
            Administrator
            Texas Liquor Control Board            Re:   Whether the District, County
            State Office Building                       or Justice Court has jurisdiction
            Austin, Texas                               to try a suit for the forfeiture
                                                        of illicit alcoholic beverages,
            Dear Mr. Stevenson:                         and related question.

                    Your request for an opinion reads as follows:

                           "Subsection (b) of Section 42 of Article I of the
                    Texas Liquor Control Act, provides that the Attorney General,
                    the District Attorney, and the County Attorney, or any of
                    them, shall, after notification of a seizure of illicit
                    alcoholic beverages, institute a suit for the forfeiture
                    of such alcoholic beverages in the name of the State of
                    Texas in any Court of competent jur:sdiction in the county
                    wherein such seizure was made.

                            "Section 8 of Article V of the Constitution of the
                     State of Texas, provides that the District Court shall have
                     original jurisdiction in all suits in behalf of the State to
                     recover forfeitures.

                            "In the light of this Constitutional Provision, we have
                     interpreted the phrase, 'Court of competent jurisdiction,' to
                     be a District Court only. Thus, should a Justice of the Peace
                     Court adjudge alcoholic beverages to be illicit and enter an
                     Order of Forfeiture, we would consider the judgment to be void,
                     and we would feel impelled to not pay the Court costs in
                     connection with the proceeding.

                            "We, therefore, respectfully request your valuable opinion
                     on the following questions:

                                   "1. Which type of trial Court, either
                            District, County, or Justice of the Peace, has
                            original jurisdiction to try a suit for the
                            forfeiture of illicit alcoholic beverages?
                                                                                  ‘-   .




Honorable Coke R. Stevenson, Jr., Page 2     (ww-979)

                        "2.  If the District Court only is
                 your answer to question No. 1, is the Board
                 authorized to pay Court costs of a Justice
                 of the Peace Court that has entered an Order
                 of Forfeiture of illicit alcoholic beverages,
                 and, does title to such beverages pass to the
                 State of Texas?

                 "These questions are not the subject of any pending
          or proposed litigation."

         The District Court has original jurisdiction to try a suit for the
forfeiture of illicit alcoholic beverages. Section 8 of Article V of the
Constitution of the State of Texas, reads in part as follows:

                 "The District Court shall have original jurisdiction
          . . . in all suits in behalf of the State to recover . . .
          forfeitures. . . .ll

No other court of original jurisdiction can acquire original jurisdiction over
the subject matter of a forfeiture suit since such jurisdiction is granted
exclusively to the District Court by the Constitution. Meyers v. State, 105
S.W. 48, (Civ. App. 1907); State v. Compton, 142 Tex. 494, 179 S.W.2d 501
(1944).

         Any judgment rendered in a Justice of the Peace Court disposing of
illicit alcoholic beverages by an order of forfeiture is void for want of
jurisdiction, and does not pass title to the State of Texas.

         Before the Board is authorized to pay the court costs of such pro-
ceedings there must be an appropriation and a pre-existing law authorizing
s&d expenditure.

         Acts 1959, 56th Legislature, 3rd called session, ch. 23, Appropriation
Act, p. 662, Item 54, appropriates funds for the Texas Liquor Control Board to
pay court costs.

         For pre-existing authority for the payment of court costs to the
Justice Court we must look to the Texas Liquor Control Act.

          Article 66, Texas Penal Code, Sec. 42(b), reads in part as follows:

                 "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 been made,
          to institute a suit for forfeiture of such alcoholic beverages
          and property . . . in any court of competent jurisdiction in
Honorable Coke R. Stevenson, Jr., Pa.9   3       (ww-979)
         the county wherein such seizure was made. ,. . . The
         costs of such proceedings shall be paid by the Board,
         out of the funds derived under the provisions of said
         Section 30, or from any other fund available to the
         Board for such purpose." [Fxphasis added]

There is no other provision of the Texas Liquor Control Act which would
authorize payment of the costs. Since the present suit was not in "any
court of competent jurisdiction" Sec. 42(b) does not authorize payment of
the court costs for a forfeiture suit in Justice Court.

         This opinion is limited to civil    suits for the forfeiture of illicit
alcoholic beverages and we are not called    upon and are not deciding the ques-
tion of whether or not an order that such    beverages belonging to a defendant
in a criminal proceeding be sold would be    but an incident of that proceeding.

                               SUMMARY

         1. The District Court is the only court with original
         jurisdiction to try a suit for the forfeiture of illicit
         alcoholic beverages.

         2. The Texas Liquor Control Board is not authorized to
         pay court costs of a Justice of the Peace Court that has
         entered an order of forfeiture of illicit alcoholic beverages,
         and said order does not pass title to such beverages to the
         State of Texas.

                                                  Yours very truly,

                                                  WILL WILSON
                                                  Attorney General of Texas




                                                     Cecil Cammack, Jr.
                                                     Assistant

APPROVED:

OPINION COMMITTEE               REVIEWED FORTHEATTORNEY      GENERAL
W. V. Geppert, Chairman         BY: Morgan Nesbitt

Bob Armstrong
Watson C. Arnold
Elmer McVey
