       OFFICE   OF   THE   A7-l.ORNEY   GENERAL   OF   TEXAS

                               AUSTIN




Yonorable Bert Ford, ~ditilniatrator
Texas Liquor Control Board
Austin6 TeXaa
Dxir sir:




ion of this dep
as followar
                                          ly aware, there are
                                                such SB boot-


                          ivcn or the Toxaa Liquor control
                          80, ootivelp engaged in the pro-
                          olstors of this type but muoh
                          untered in apprehending them,
                        evideme of violations of la.%when
                       one are restria~tedto dealings with
     the military foroed.
           *It ir often found desirable to attire law-
     enforoement offloers in a fashion that would de-
     ceive the oriminal into a reasonable belief that
     the officer ie a soldier. Xhaki olothing similar
    FIonorebleBert Ford, page.-2


         to that of a aoldier oan readily be purohaaed In
         meroantlle sbbros which might serve the purpose,
         but In this connection there appeer to be oompli-
         cations which night give rlso to legal ob?ections
         to such practices.
                 "One of the prosecutors of the ,'.tete
                                                      haa.sd-
         visnd OS clrcumtenoes wherein two officers, at-
         tired in khaki clcthi&y purc?lasedprivately and
         bearl?c no Insignia thereon, ep;roaoked a boot-
         legeer catering only to soldiers enA were sold
         liquor by this bootlegger. One of the officers       '
         eotuslly   wuae wearing a Sovermant  iesued over-
         seas cap whiah hed been picked up in some plaoe
         and the other was without suoh e cap. Ties were
         of the testure and color worn by soldiers, ea
         were the tan shoes they wore.
              "The officers were clothed in this fashion
         for the axpress purpose of areatlng the Lmprea-
         sion in the mind of the bootlegger that they were
         soldiers of the United states AIIVIY. This took
         plaoe in the vicinity of one of the l8rge~mllitarg
         oamps looeted in the State.
              There is a question In the rnlndof the afore-
         mentioned prosecutor ,aa to the legality of lntro-
         ducing evidence obtained In this fashion, and.he
         has suggested that an opinion on the subject be
         obtained from your offloe.
               wArtiole 147 of Vernon*6 Penal Code provide8
         ee follows:

              wYYhoever shall ssorete, sell, dispose of,
         offer foraale, purohaee, ret&In after demand made
         by a eommleaioned orrioer of the active militia
         of this State, or Ln any manner pawn or pledge
         any arms, uniroms,   equipment6 or other military
         property, iesued under any provlalon of the law
         or of the military regulations  of this State, and
         any pereon who shall wear any uniform, or pert
         thereof or devioe, atrap, knot or insignia   of
I        any design er oharaotsr used as a deelgnation of
Honorable Eert Ford6 page 9


         grade, rank or offloe,    suoh as are by law or by
         general regulations    duly promulgated, presoriived
         ror the use of the active militia of the ;‘tate,
         02.similar thereto, exoept members of the army
         OS th6 United States or the active nilitS% of thie
         or any other state shall be Sined not less than
         one hundred nor more than five hundred dollars.'
              Wkrtlole 727a, Vernon's Code of Criminal Fro-
         cedure, provid~es86 Sollowa:
              R*Xo evidenoe obtained by nnofficer or other
         person In violation of any plovisions OS the Con-
         stitution or laws 0r the State of Texas, or 0r tie
         Constitution of the united States of Ameri.ca,%hall
         be admitted in evidence against the accueod on the
         trial or nny criminal case.*
              Under these oircumstances we would appreciate
         your opinion in response ~to'the following questions:
              “1. Vould the introduction of evidenoe and
         the Offering of testimony by an offleer attired
         in a rashion designed to create the impression
         that he was a solaler or tha TfnitedStatesq army
         but none of which clothing was of G~Vernfmit issue,
         be legal in the prosecution for the offense of un-
         lawfully selling liquor $0 suoh officer in a dry
         wee?

              *2.  v0ula the intxoauoti05 0r tlrviaenoeand
         the offering of testimony by an OSfiOer who waa
         oth%rv!iseattired In privately  purcbaasedclothing,
         not OS Government issue but designed to oreate
         such impression, wearing an.overseas oap of Eovern-
         ment Sesue; be legal in the proseotuion  of an of-
         renee of this cbarscter7"
             Sectl~on1893, Title 10, 0. 8. C. A., provides In
part :
           *It shall be unlawful for any person not an
     offioer or enlisted man of the United States Army,
     Navy, or Karlne Corps to wear the duly prescribed
Eoncrable J?%,rt
               Ford, psge 4


     tdf01~11Or th8 United StetOe AZYII~, Navy, or.lzarin%
     corps, or any dlstinatlve pert of suoh uniform or
     a unlrorm any part of whioh la elmllar to a dis-
     tlnctlve pert of the duly presorLbed uniform of the
     <nited States Army, Navy, or Ysrine Corpsi end it
     shall llk%wise be unlawful for any parson not s
     merrtberof the Women's Army Auxiliary Corpa to wear
     Its duly presoribsd uniform or any distinctive
     part thsrsor, or a uniform any pest OS whioh.16
     slmllar to e aistinotlve part tireof: . . .
          "Any person who offends against the prcvi-    '
     aIon of this seation shell, 05 oonvictlon, be
     punished by a fin% net exceeding $300, or by im-
     prisonment not exoeeding six months, or by both
     such fine end Imprisonment: . . ."
           Arti    727a, Vernon~s Code of Criminal Prooedure,
provide@ that no evldenoe obtained by an officer or other per-
%on In violation "of any provIelons of the Constitution or
lawe or the State or Texas, or or the Constitution or the
United States OS Sm%rIoa-, shell be admItted In evidence against
the aooused OA the trial Of any ariainal   caere. In order ror the
faota stated by you to come wIthIn the prohibition ~ofthat part,
of aaid Artiols pertaInlag to the Constitution or lawa oS the
s+dte 0r 78~8, they would have to oome withln~the provisions
or Artiole  147 of V%rnon*s penal Oode whIoh Is quoted In your
letter. A reading of this Art,lole,however, shows that It
deals only writhunIrorm8, %qtipaept, eta., Issued under the
provisions of the laws or mIlltars regulations of .thla State
and there IE nothing stated In your letter ahloh would show
a violation of this provision'of our Penal Code. The only
provision of the lawsiof the United States of Amerioa that
could have been viola.tedby said oifioers under the faots
stated by your ie said Ssotion 1393, Title 10, U. 3. C. 8..
above set forth., but R violetion of this law would not oome
within trie?rohIbitlons or sala Article  787a of the cod8 of
CrImInal Frooedure, for the reason that this artlale‘does not
ooter a law of the Ueitsd States of merioa    and only covers
the *constitution of the united States of Amerioa". It lr
clear, therefore, that even though said officers mey have been
vlolstlng the provisions of'sala Seotlon 1393 of th% Federal
Statutes, the eeourlng or suoh~evldenc8 in suoh m%nn%r does
not oome within themprogibltions or said ABtlole 727a or the
cod% or Criminal prooeaure.
Xonorabls Bert Ford, page 5


              If said officer8 wereviolating the laws of the
State of Texes and/or of the United States of America In be-
ing dressed a8 shown by your statement and for the purposes
therein stated, there IS no statute    in Texas whioh makes the
securing or obtaining of evidence under suoh conditions a
violation of the law, therefore, evidence so obtained would
be admlseible.     In tbia connection we direct your attention
to the case of Rerry v. State, 12 S. II. (2) 581, aa follows:
In this case Berry was indicted ror the sale of a h&lf of a
gallon of whiskey and Vi111Koore was named in the indictment
as the purchaser. EIeteatiiled that.he purcheseU iron the
appellant a half gallon or whiskey for whfch he paid him
$7.50. The witness MoKinney,     the Sheriff, testified that on
the night or Ootober 2Oth, while he and Hllkoore       were in.
an automobile on the street, he saw the appellant en8 heard
a conversation between him and ??oore.lnwhich-the appellant
agreed to sell Moore some whlakey. BoXinney had given Moore
a ten dollar bill with whioh to pay for the whiskey an4 saw.
Moore receive it and pay the appellant for it. He then ar-
rested the appellant and took from him the ten dollar bill.
Boore wes a oegro and MoXinney wae the eheriff, who was dis-
gu3ae4 so as t.olook like a negro. The appellant complained
of the reoefpt in evidence    of the t~estlmonyof VaXlnney, the
subat8noe or which la set out above.     The appellant took the
position that by disgufelng hinitztdf?6oKinney violated the
law and %hat.for that reason his testimony was inhfbbitedby
the statute (Article 727a, Vernon's Annotated Code of'Crimipi-
nal hocednrs) in which it is deolared that evbdenoe obtained
in violation of any provision of the Constitutfon or lawa of
the State of Texas, or oi the United States, shall not be ad-
mitted against the aocueed in any criminal case.
           we quote froa;this oase as lollowe:
            *The opinion is expressed that the etatute
    mentioned would not bar the state from reoeivfng
    the evidence at present under oonslderatlon. If
    the contrary were true, however, the testimony of
    riOKinney is not more speoific than that of the
    witness   Moore, whose teattiony to the effeOt   that
    he bought the whisky from the appellant and pafd
    him for It $8 not controverted. h!oore*stestimony
    was reoelved over objection, the objection being
    that Molsinney, the,sheriff, was blaokened and
    disguised. The sheriff, in blackening hia face
                                 f
 gonorabls Part Ford, page 6


     and fostering the commieeion OS the Oifenea, is
     ‘tobe commenCed more Xor his zeal than for hi8
     uriadom. . . .*
            %a also refer to the aaae of Anderson v. State, 3B
S. 7;. (2) 93, wherein appellant was convfoted oS the poesession
of lntoxloatlng liquor for the purpose of sale. Ke made the
contention that the oaae should be revereed for the reason that
he wae entrapped into the purchase of bhe liquor by an agent
of the enforcement officers. The faots in.regard tothir oon-
tention are not clear, but the oourt makes the statement that
appellant cited Varioue precedenta upon the subject   Of sVi-
dance secured through a detective who aided In committing the
orlme. In werruling said contention, Judge Korrow of said
court mds the following holding on this question:
                  The subject has been dlaouaaed by
     this o&    &I many ocoaalone among them Quyer v
    State, 31 Tex. Cr.R. 489, 30’s. W. 450; ,Berrgv.’
     State, 111 Tex. Cr. R. 281, 12 9. iR. (2d) 581.
   . This court has never coauuendedthe praotloe men-
     tioned, but has been oonatrained, in deferenoe  tom
     the verdict, ‘t&support oonv&ctlons upon the testi-
     mony or the oharedter mentIan.ed. . . .*
                                                                   ,
           &view   of the Soregoing atatementa and the statu-
tory provisions quoted and referred to, It is the’~
                                                  opinion ~oS
tbis department that both of the queationa submitted by your
should be anewsred In the aSSlrmatlv6. Trueting that this
sstisraotorily anawera your inquiry, we remain
                                          Very truly    youra
                        .,            .
                                             QFWZRAL OF TEXAS
                                      ATTORNEY
AYPROVRD APR 23, 1943
Grover sellers
FIRST AsEISTMT
ATTORREY GE?ZRAL                      BY /a/
                                               Jaa. Wi Baseett
                                                       Assistant

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THIS OPINXO:;COKXDRRED AND
APPROVED R? LlRlTW GORPRRENGE     r                    JwBtBLw
