Hon. Wayne Lefevre              Opinion No. O-4929
County Auditor                  He:   Under the facts     submitted    does a
Clay County                     peace officer     have the legal    authority
Henrietta,  Texas               to arrest   and search    a person possess-
                                ing liquor    without  a warrant    of arrest?
Dear Sir:
           Your letter        of October 9, 1942,         requesting      the opin-
ion of this department         on the above stated          question,     reads in
part as follows:
              “Please    answer    the   following    question     for   me.
                “If a law enforcement      officer      suspects   a person
       to be in possession        of alcoholic       beverages   in a dry
       territory      for purpose    of sale and searches        this per-
       son outside       of his home and finds what he was looking
       for.      Is it necessary    for this officer         to have a
       search warrant       to lawfully    search and arrest        this per-
       son?      Taking into consideration         that the suspected
       person has been convicted         of the same charge many
       times in the past.”
           Bs we understand     your request,   you desire               our opin-
ion on the question,    whether    or not a peace officer                can legally
arrest  and search   a person under the facts      submitted              without    a
warrant  of arrest.
               Generally    speaking     the laws of this State have ex-
pressly     authorized     peace officers        to make arrests       without    war-
rants    in a great many cases.            (Articles     212-217,    Vernon’s      Anno-
tated   Code of Criminal         Procedure)        Thus  generally     an  arrest    may
be made when an offense           which is a felony         or which is against
the public      peace is committed         in the presence        or within    the
view of the arresting          party,    or when it is shown by satisfactory
proof to a peace officer,             upon the representation          of a credible
person,     that a certain       party   has committed       a felony,     and is
about to escape.          Other circumstances         giving    rise to authority
to arrest      without    warrant     are the verbal      order of a magistrate
before whom a felony          or breach of the peace has been committed,
or the existence         of a city ordinance         passed    in conformity      with
State   law and commanding search and arrest                 under prescribed
conditions.
Hon. Wayne Lef avre,     page 2      (O-4929)


            Under the Texas Liquor         Control   Act the possessing
of liquor    as defined   in said act      for the purpose    of sale in
a dry area is only a misdemeanor           offense.     The possession     of
liquor   for the purpose     of sale in      a dry areas is not a breach
of the peace within     itself.     For    the purpose   of this   opinion
we assume that no city ordinance           is involved.
              We have carefully     considered    Article   666-20 and Ar-
ticle   666-44,   Vernon’s    Annotated    Penal Code, and have concluded
that these statutes       are not applicable     to the question     under
consideration     as the search of buildings,         premises   or vehicles
of transportation      is not mentioned      in your inquiry.
             In view of the foregoing    you are respectfully    advised
that    it is our opinion  that the peace officer     has no authority
to arrest    the person in question   without   a legal warrant   of
arrest.
            In connection      with the foregoing      we wish to point out
that it is a settled       rule that no search warrant         is essential    in
order to search the person of one lawfully             under arrest     for the
purpose  of finding      and seizing    dangerous    weapons,    the instru-
ment s or fruit 3 of a crime,        and such other things       as may be of
use as evidence     on the trial.       Even in cases where the law per-
mits an arrestwithout         warrant   the right    to search the person
arrested   follows    as an incident      to the arrest,     and this natur-
ally implies     a search    contemporaneous     with the arrest.       In the
language   of the United States        Supreme Court (Agnello       v. United
States,  269 U.S. 20) frequently          quoted and approved by the Texas
Court:
             “The right    without    a search warrant       contempor-
      aneously    to search persons      lawfully    arrested     while
      cominitting   crime,    and to search the place where the
      arrest    is made in order to find and seize things
      connected    with the crime as its fruit          or as the
      means by which it was committed,            as well as weapons
      and other things      to effect    ah escaue from custody,
      is not to be doubted.”
            Trusting    that   the   foregoing   fully   answers   your   inquiry,
we are
 “PROVED OCT 29, 1942                      Yours very truly
/s/ Gerald C. Mann                         ATTORNEYGENERALOF TEXAS
‘AT?ORNEYGENERALOF TEXAS                   By /s/ Ardell Williams
                                           Ardell Williams,  Assistant
APPROVED: OPINION COMMITTEE
BY:       BWB, CHAIRMAN
AW:AMM:wb
