Honorable Bert To*d, Adminirtrator
Texas Liquor Control Board
Austin, Texas

Dear Sirt                            Opinion So. O-6569
                                     Rot Would a parron be permitted
                                          to tranlport liquor from a
                                     wet oounty to friend8 in a dry
                                     county without . permit?
                                     May tha Btrto forfeit 8m autcmo-
                                     bile rhioh ~88 not 8eitad atthe
                                     time the liquor -8 found?

         Your raquort forthir department18 opinion on th* following faota
and question8 read8 in part a8 follow8:

             "That on or ndout July ZOth, 1944, 4 %a# driving hi8
        automobile upon the.8tnet.i of Oltiey,Young County, Texa8.
        The deputy rhoriff of Young Qunty, TBAB, 8.1 thm oar and
        8anuhat they thought maa whi8k.y and bar on the -ok seat
        of the oar.' There uwo four men riding in the oar, bolud-
        ing the driver. Three of them war. intoxioated. Tk depu-
        ty sheriff and the oity marshal1 approached the oar ta make
        an inve8tigntion and found that they had 8avea quarts of
        whirkey and four oaaae of her in the oar. The offlsarr
        reired tb Ihi8key and beer and arrested A, who wa8 very
        drunk, ana permitted thb other8 to go home. They placed A
        in jail at Graham, Young County, Texar. Thy did not reiao
        the nutomobile at that tima. The Couxty Attorney's office
        filed a complaint and information on A for'po88esrion of
        whi8key for purpose of sale.' About two weeks later the
        Counfy Attorneyto offio* filed a oharge of 'illegal t~8-
        port&ion of liquor.* A and hi8 owpanion8 rt the time of
        lrreet olaianodjoint ownership of the whiskey to the extent
        that eaoh one onned a quart of whiskey and that they brought
        three qurrhr back for other friend8 living in the town and
        that they were bringing a aaae of beer eaah to their friend8
        in Olaey, naming than a.~B and three others.

              "Quortidm 1: Under the law would A be permitted to
         tranrport liquor to the8e friend8 without a permit?

              "Question 2: lbuld A be pwmittad to tranrport the
         liquor for hi8 friend8 ridbg with h@e in the oar without
         a permit?
Honorable Eert Ford - Page 2 (O-6389)




                "Question 3r Could the sheriff, with the proper pn-
           pers,.confiscate the automobile now or after the trial of
           the criminal case where it WIT not seized at the time that
           whiskey was seized? In other words, if it were seized,
           must it be asized at the time the liquor was found?" (Sub-
           stitution of names in personal letter was made by this ds-
           partment.)

         ?R have oarefully considered the alcovestated questions and in
answer   to lbmixrs
                  1 and 2 direct your attention to Article 666-27(a) of
Vernon's Annotated Penal Cods, which provides a8 follows;




           the same ib being transported, to-exhibit such &it&n   stata-
           ment to the Board or any of its authorized representatives
           or to nny psaae officer making demand therefor, end it shall
           be unlawful for any person to fail or refuse to exhibit the
           same upon such demand. Such written statement shell be accept-
           ed by such representative or office a8 prima facie evidence of
           ths lawful right to transport such liquor." (Raphnsis added)

         We believe the above emphasized seotion manifests in clear and un-
ambiguous wording the legislative intent to render it unlawful for any psr-
son to transport liquor without the prescribed written statement from the
Xpper.    Therefore, xv answer your questions ??umbars1 and 2 in the nega-
tive.

         J% have found no Texas deoisions bearing on your third question,
but in view of the fact that Article 666-44, V.A.P.C., relating to the
seizure and forfeiture of automobiles is patterned after and borrows heavi-
ly fran the former Federal provision of the Volstead Law (Section 26),
passed on October 20, 1919, 41 Stat. 316, we are of the opinion that the
case of United States V. Slusser, 270 Fed. 616, construing said section
of the Volstead Law is controlling.

           Article 666-44, Vernon's Annotated Penal Code, reads in part as
followsr
Hon. Bert Fod - Page 3 (O-6369)




             "It is further provided thst if nny wagon, buggy,
        automobile, water or air craft, or any other vehicle is
        used for the transportation of any illioit beverage or
        any equipment designed to be used for illegnl manufact-
        uring of illicit beverages, or any material of any kind
        which is to be used in the manufadurine. of illicit bev-
        erages, such vehicle together with all such beverages,
        equipnsnt.,or material shall be seized without warrant
        by any representative of the Board or any peace officer
        who shall arrest any person in charge thereof. Such
        officer shall at once proceed against the person arrest-
        ed and all principals, aocomplioss, and accessories to
        such unlawful act, in any court having competent juris-
        diction3 . . ." (Emphasis added)

         Seotion 26 of the Federal Volstead Law reads in part ns followsr

              "Sec. 40. Wen the commissioner, his assistants,
         inspeotors, or any officer of the law shall discovur any
         mrson in the not of transWrtillF:in violation of the law.
         Intoxioating liquors in'ani wagon, buggy, automobile, nat&
         or air oraft..or other vshiole. it shall be his d&v to
         seize any 'hiTa
                       all intoxionti~g liquors found therein bQing
         transported oontrary to law. Whenever intoxicating liquors
         transported or possessed illegally shall be seized by an
         officer he shall take possession of the vehicle and team
         or automobile, boat, air or water craft, or any other oon-
         vevanoe. and shall arrest aw nerson in ohnrEa thereof.
         S&h ~of?icarshall at once pboased ngninst t& person ar-
         rested under the provisions of this chapter in any aourt
         having oompetent jurisdiction: , . ." (Bnphasis added)

         The case of United States v. Slusssr, Supra, on page 620, headnote
6, sets out the essential elements in the forfeiture of an automobile under
Section 26 of the Volstead Law as followsr

              "(6) Third, ns to the right of restitution: The
         forfeiture of an automobile, under the twenty-sixth sea-
         tion of the Volstead Law, must lx in strict pursuanoe
         to the terms thereof. United States v. H:rdes(D.C.) 267
         Fed. 471; the Goodhope, 266 Fed. 694. The following
         elements are essentialr

                   "(1) That en offioer of the law discover
              scme person in the not of illegally transport-
              ing liquor in n vehicle.

                  "(2) The seizure of the liquor so transport-
              ed or possessed.
Hon. Bert Ford - Page 4 (O-6389)



                    "(3)  The seizure of the vehicle and arrest
                of the persons.

                    "(4) That fhs officer ,prooeedagainst the
                person atidr&&In the vehiole, unless  redelivered
                to the owner, upon giving bond to return it to the
                custody of the offioer on the day of trial to
                abide the judpent of the court.

                    "(5) Conviction of the person and order of sals
                of the vehicle.

                    "(6)   Distribution of the prooesds.

                  "The highest degree of evidence, vizr that an officer
         of the law ~erceivs 8ome)~
                                  person in the aot of illegal transpor-
         tion, is n&ssary.    Se&r8   of the vehicle can oniy ta made
         when liquor is seized. The law does not forfeit all vehicle8
         at some time used for illegal transportation of liquor, but
         only those taken in the act. One may be convicted of illegal
         transportation, yet the vehicle will not be forfeited, unless
         seized at the time. U. S. v. Eydss,  supra. The seizing offi-
         o8r is to have the vehicle in possession on the diy of the
         trial of the person arrested, Eo abide the judgment in the
         8ame prov8eding. Should the defendant be acquitted, the
         automobile must be released, fbr it is only upon aonviction
         that its sale may be ordered." (Emphasis added)

         Thus, in 8n8wer to your third question, it is our opinion that the
automobile must be seized at the time the liquor is found.

                                                  very trW1y yours


                                                 ATTORNEY GENERAL OF TEXAS

                                                 By /s/Benjamin Woodall
                                                              Assistant
BMrdb:jrb:egw
                                                 By /8/ Bob Maddox
APPROVED M&Y 22, 1945                                      Assistant
/s/GROVER SELLERS
ATTORNEY GKWRAL OFTEXAS

Approved: Opinion Committee
          By GRIB,Chairman
