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                                                                                                                             307
                  TXXE                                      NEYGENERAL
                                                 OIFTEXA~



                                                         April      12, 1951



      Hon.      H. D.         Dodgen
      Executive              Secretary
      “Game,      Fish          & Oyster         Commission
      Austin,          Texas
                                                                   Opinion        .No.    V-1167


                                                                   Re:     Authority          of game         wardens
                                                                           to seize        and      retain     posses-
                                                                           sion      of guns        -of game       viola-
                                                                           tors      pending        final     .disposition
      Dear      Sir:                                                       of criminal             charges.


                      ~,You have            requested       the opinion           of this      office       on the fol-
      lowing:


                       (1)      The      right    of a game         warden          to seize        the gun of
             a person            found       violating      the    game      laws        and arrested
             therefor.


                       .(2)     The      right    of a’game         warden          to hold      the seized
             gun as           evidence        to be presented             in the defendant’s
             trial.


                       ,(3)     The      right    of a game         warden          to hold        a gun after
             trial      and pending              appeal     from        conviction.


                       (4)      The      responsibility           for    return      of the gun to
             defendant,            whether         the court        should        order      its    return
             or   the game             warden         should      act    on his      own     initiative
             in returning              the    gun.


                       It becomes             necessary          at the outset           to determine           the au-
      thority      of a       “game         warden”to           make     arrests,         especially         without
      warrant,          for     violating        “game      laws,“since             the right        or     authority
      of,a“game               w+:rd,en”to        seize     and hold        weapons         depends          upon    his
      authority         to mrlke         arrests.          As    will    be pointed         out later         in this
      opinion,         the     seizure        and holding         of guns      is an incid~ent              to arrest
      and prosecution                 for    crime.
.Tloa’~H.‘D.         Dodgen;         V-1167,          Page        2.



               ‘~~Nowhere          do the statutes                of Texas           in specifics       terms
 authorize          ~“game      wardens”              to make           arrests         of any kind          with
 orwithout          ~a warrant.          “The        statutes          specifically            authorizing          ar-
 ,rest.without           a warrant,           or    otherwise,             by officers            of the’Game,
 Fish&         Oyster’commission                      are    statutes           which       were      passed
 ,and:brought           forward        from         the time          that department                was     ,headed
 by a.single          Commissioner                  who     apparently              appointed         ‘“deputies,”
 and, thesedeputies                  were      given        authority           along      with     the Com-
 ,miss~ioner         to make         arrests         without          warrant.           See      Articles         4018
 and~4021,          V.C.S.,        and Articles             905 and          914,     V.P.C.


                  Articiec978f;‘V.P.C.,                     was       enacted        in 1929 and abolish-
 ~edOhe,~office            of Game,         Fish      & Oyster           Commissioner                  and creat-
ed-the      present         ~Game,       Fish        & Oyster           Commission,                 consisting        of
 ,six members,              with     the authority,               powers,          duties,        and functions
 of the.former              Commissioner,                  and provided              for     the delegation
 to a*n ‘“executive             secretary”             of the executive                  duties       of the Com-
 mission          in enforcing          the Game            and       Fish      laws.        Section        6 of Arti-
 cle   978f provides,               in part,        that


                  “Said       executive            secretary           shall     have       authority
         to appoint          such     heads         of divisions             and     such      Game      and
       ~Fish       W~ardens          and other            employees             as in his         discre-
       ,,tion may          be deemed           necessary               to carry         out and enforce
         the laws          of this     State       which       it is the duty              of said     Game,
        .Fish      and     Oyster      Commission                    to carry        out,     execute        and
         administer,            and to perform                 all     other       duties      and services
         ,authorized          and    required          to be performed                   by    said     Game,
         Fish      and Oyster           Commission,                  and     shall      have      the auth-
         ority,     powers,          duties        and functions               heretofore           vested
         in Specia%~Deputy               Game,            Fish       and Oyster             Commissioners
         and other          employees              of the Game,              Fish       and Oyster           Com-
         missioner.”             (Emphasis             supplied.)


                 ‘The      authority        of the Game                and Fish         Wardens          vests      from
~the executive             secretary          through         whom         the      Commission              may     perform
 its   dutie,s     and      is therefore            the     same       authority           the Commission                 has
 in regard         to the right         to arrest            violators           of the       game      laws       of Tex-
 as.      By      virtue      of Articles           4018     and 4021,             V.C.S.,        and Articles
‘905 and, 914, ‘V.P.C.,                ,the deputies              of the       Game,         Fish     and Oyster
~Commissioner                 had the same             authority             as the Commissioner                     in
 regard        to the right          to arrest         a violator              of the game           laws      of Texas.
 Consequently,              the authority             of the Game               and Fish          Wardens          would
                                                                                                                                   309

‘?Ion,. +I,‘D.         Dodgen,        V-1167,            Page      3.



:bethe        same        as the      authority           of those         deputies         as    given        in the
 four      above-~cited            articles,           It follows         that ‘Game           and      Fish        War-
 dens      are     authorized          to arrest              without      warrant          persons           found
 violating         any    of the Game,                 Fish     and Oyster            laws       of Texas.


                  Article        401~8, V.C.S.,               provides:


                   “The     duties          of the Commissioner                       shall      be in
         the execution              of the laws            relating         to game,           fish,
         oyster         and marine             life,     and     such      further         duties       as
           are    .imposed         upon      him       by legislation.               In the execu-
         tion     of these         laws      he shall           exercise        the power              and
           authority        gi~ven to sheriffs.                   . . .     The      Commissioner,
         or      any    of his      deputies,           may      arrest       without         warrant
           anyone       found       vioIating          any of the fish,              game        or    oyster
         laws      of Texas,          and      shall      have      the     same       right       to exe-
         cute      original        process             as sheriffs.”           (Cf.     Art. 905,
         V.P.C.)

                  Under       this     statute,          the game          warden          has     the s.ame          powers
~&n&duties             of arrest       in cases           of violation              of game        statutes          as     the
 sheriff         has    in regard         to the violation                 of other        penal       statutes           of the
 State      of Texas.


                  The     right       of a law          enforcement             officer        to search            for     and
 seize      property          under       a search            warrant         is regulated              by the pro-
 visions         of Articles          304-332,           V.C.C.P.              We     infer,       however,           that
‘you     are     inquiring          about      the      right     of a game           warden.to              seize’the
 gun of a violator                 of the game            laws      who      is arrested~without                     a
 ,warrant,         and without            the issuance              of a search            warrant.             The        fol-
lo$+ng”rule              is stated        in Agnello            v. United           States,      269         U.S.    20,
 W(1925):

                   “The       right     without          a search          warrant          contem-
         poraneously               to search           persons          lawfully       arrested
         while         committing           crime         and to search               the place          where,
         ,the arrest          is made          in order          to find       and     seize       things
           connected         with     the crime               as its      fruits,     or      as the means
         by which it was committed,    as well as weapons                                                and
         other things to effect an escape  from  custody,                                              is not
         .to be doubted            .” !


                  ‘This     rule      has      been      approved           and     followed           in a number
H.     D.    Dodgen,V-1167,                  Page        4.



of Texas            cases.          ~West       v. State,       ll,O     Tex.         Grim.         290, ~8 S.W.2d
 119 (1928);              Reynolds     v. State, 106 Tex. Grim.   391, 293 S. W.
                          -,
,,178 ,(1927);            .pllelton v. State, 110 Tex. Crim.    439, 10 S.W.2d~384
 (1927).          fin an annotation                in 32 A.L.R.                681,    which         collates           the
authorities               on this       point,     the     general         rule        is    summarized                 as
follows:


                    “The      right        without        a search             warrant         to search
            the person            of one     lawfully          arrested,              and to seize
            articles        found       on him       or       in his     custody,            such      as
            weapons,          evidences            of the crime                charged,            etc.,    is
         well        established.”


                    From       these        authorities,             it is seen             that    a game         warden
has     the     right       to seize         the    gun of a person                   found         violating           the game
laws        and     arrested            therefor      if the gun or               the defendant’s                   posses-
 sion       of it has        an evidentiary               bearing          on the offense                  for    which         the
 violator           is arrested.             It should          be noted          that       the right           is limited
to a search,               contemporaneous                     with     the arrest,                of the person               and-
 of the place              where        the arrest            is made.


                    If the game            warden         has       obtained          lawful         custody         of the
 gun,       it may        be held        and used          as evidence                in the trial           of the per-
son     arrested.              Goodwin           v. State,           121 Tex.          Crim.          335,       38 S.W.2d
 806 (1930).              -It is    stated       in Gurski            v. State,         93 Tex.            Grim.         612,
 6~14, 248 S.W.               353,      355 (1923)            that     ““The      officers           making          the ar-
 rest       of the        appellant        . . . had the right                  to take        from         his    posses-
 sion       any property                found     thereon        and hold             it for       prope~r        disposi-
tion,        and the law            authorized            its use        against            him     in evidence,               if
 relevant,           to any        issue     in the case.”


                    The      question        of the right              to possession                 of property
 taken        for    use     as     evidence        pending            trial     of the criminal                  charge
 has    been         raised        in only       a few        cases.           Decisions            which         are    bas-
 ed on specific               statutory           provisions            are      not relevant               ,here.        From
,the decided               cases,       which       have       been      collected            in annotations                  in
 ll~A..L.         R.. 681 and            13 A.L.R.            1168,      the conclusion                    may     be drawn
 that       the officer           has    a right      to retain           possession                of the proper-
 ty until         its     evidential        purpose           has      been      served,            unless        he is
 order&by                 a court        of competent               jurisdiction              to surrender               its
 custody.               Welchek         v. State,        93 Tex.         Grim.          271,       247 S.W.             524
 (1923),        involved            a s.eizure       .of intoxicating                 liquor,        which        was
 regulated              by specific         statutory           provisions,                 but the following
 language            is    applicable           to other        situations             as well:
                                                                                                                                 311

Hon:YH.         D.Dodgen,           V-1167,           Page       5.



                  “The      detection          of crime          and the punishment                          of
        criminals~          and the consequent                    preservation                  of the
        ,lives,     liberty,        peace,         and property              of the law-abiding
        part      of organized              society       is one of the most                      impor-’
        tant      fnnctions         of government,                and it not infrequently
        happens          that in the pursuit                 of this         function          the rights
        of the individual              citizen          must      endure           for       a season’
        when       there      is an apparent               conflict          between            them       and
        the rights          of the general               public.            One    whose          property
        is stolen         or whose           house       is burglarized                  or whose
        property          in other       ways          which      might           be instanced               be-
        comes        necessarily              a link      in a chain              of evidence           might
        find      himself      forced          to leave         such        property           in the’cus-
        tody      of the courts             till    the rights          of the general                 public
        to have       present         all     testimony           to develop              a criminal’
        case      have      been      observed,unless                  he can           satisfy        the
        authorities           that he would              produce            such       property           in
        court      when       its presence              became          necessary.                 It is
        not beiieved           that     any court            upon       motion           or petition
        would       d~eliver        to an alleged             criminal            or     those      inter-
        ested      in its      removal             or destruction             personal            property
        whose       presence           is deemed             necessary              to the develop-
        ment.of          a criminal            case.      . . .


                  I’. i’ ;~art must         always        be borne            in mind,           if there
        appear       the     fact     that      said     property            by its physical
        appearance             upon     the trial         will        aid    the court           in ar-
        riving      at a correct               conclusion             in a criminal               case,
        that, the owner’s              right        to the return             thereof            sbould
        be hsl-d in abeyance                   until     said      property              has     served
        the government,                the whole             people,         by its          appearance
        in testimony.           ”     (93      Tex.      Grim.         at 279,          280,      247 S.W.
        at 528.)


                  Since     ,tbe gun might              again         be needed              as evidence            upon
aretrial          of the case         where            a conviction           is       set     aside      on appeal
or   motion,         its possession                may       be retained               until    the case           is   final-
ly disposed           of.


                  If, pending         trial,        the prosecuting                 authorities              decide      that
it will.not         be necessary               to introduce             the gun in evidence                        on the
trial     and     have      no intention            of doing          so,    they        should,        of course,
return       it to the owner.                  While      some         of the cases               have       spoken        of
312

      Hon, ‘H. D.           Dodgen,         V-1167,       Page       6.



      property         held     for      evidence       as being          ins the custody             of the law,
      we do not deem                it essential          that a court.           order       its     surrender
      before        it can be         returned        to the owner             before        introduction           in
      evidence.              In this        regard,     there        is a distinction               between
      property         unlawfully            in the possession                of the defendant,                 such
      as stolen        or     contraband           property,           and property              the possession
      of which         is not in itself            unlawful.           Where          the defendant’s             posses-
      sion     of the gun was               not unlawful,           no order           of court        would       be
      necessary.


                       In instances            where      the     gun has         been       seized       for    rea-
      sons     other        than    that     of being       held     and used           as    evidence,          the
      gunshould             be returned            as soon        as the reason              for    such    seizure
      has     dissipated;             For     example,          where        the gun is seized                  merely
      to prevent            escape,         it should     be      returned           upon    release        of the
      arrested         person,           under     bond     or    otherwise.


                       Your     third        question        relates         to the     right       of a game
      warden         to hold       a gun after          trial     and pending               appeal,    from       con-
      viction;        After        property        is introduced              in evidence,            it becomes
      a part        of the official           record        of the case          and can be taken                 from
      the~~custody           of the court          only     with     the court’s             permission,           pend-
      ing    final     disposition           of the       case.        Since      a case         in which        an ap-
      peal     has     been     taken        has   not been         finally       disposed          of, property
      which      has     been       introduced          in evidence             remains          within     the con-
      trol     of the court           during       the pendency               of an appeal.


                       In your        fourth       question         you    ask       whether        the game
      warden         should        act    on his      own    initiative          in returning           the gun
      or     whether        the court         should        order      its     return.         From       the     an-
      swers      ,to your          previous        questions,          the following               conclusions
      may      be    stated:


                       1.     If the gun has            not been          introduced           in evidence,             the
      arresting  officer                 or the prosecuting    attorney  should return the
      gun to~the owner,                  on his own initiative    or upon demand ,by the
      owner,         as soon        as it is determined                   that the       gun is no longer
      needed         as evidence.


                       2.     If the gun has            been      introduced            in evidence,             it can-
      not be returned                 to the owner           pending          final    disposition          of the
      case     without         a court        order     permitting             its     return.


                       3.     After       the case      has       been       finally     disposed          of, the
                                                                                                                  313

Hon.,~H.        D. Dodgen,             V-1167,         Page       7.



better        practice        i,s-to     obtain     the court’s           permission            for     return
of propertywhich                   has     been     introduced            in evidence.           United
States        v. Parker,          166 Fed.          137 (C.C.A.            2d 1908).           Pezion
may      be     obtained       either          by the prosecuting                 authorities         (includ-
ing the        arresting          officer)        or by the owner.


                 4.     Where         the gun is not held                 as evidence,          but merely
as an’incident              of an arrest,           no court            order     is necessary,              of
course,         to authorize             its    return     to the owner.


                 This       opinion       does      not apply           to any     situation         where
the gun itself             is subject           to confiscation            or    forfeiture.


                                           SUMMARY


                 +    game      warden           may      seize        a gun in the posses-
         sion    ‘of a person             found     violating           the game        laws     of the
        State        and    arrested           therefor       if the      gun has       an eviden-
        tiary    bearing          on the offense              charged.          Where        it is de-
        termined            by the prosecuting                 officer         that the gun has
        no evidentiary                 value,     it should         be    returned         to the
        owner.          A gun not held              as evidence              in a game         law
         violation,         but as a mere                incident        of arrest,        should       be
        returned           upon      release        of the        arrested        party.       in those
        cases         where       the gun is introduced                    in evidence,          it re-
        mains         in the custody              and control            of the     court      pending
        appeal,         and the         court’s        permission            must      be obtained
        before         it can be         returned         to the owner.


                                                              Yours        very     truly,


                                                                  PRICE         DANIEL
APPROVED:                                                     Attorney          General


Ned     McDaniel
State     Affairs          Division


Jesse      P. Luton,           Jr.
Reviewing             Assistant


Charles’  D. Mathews                                          Mary        K.    Wall
First  Assistant                                              Assistants


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