                                                            R-896



                    EA

                   ‘L
PRICE  DANIEL’
                           Aucvrnv
                                 11.Texas
ATTORNEYGENERAL

                                December 30, 1947

        Han, Sherwood Brown, Jr,       Opinion No. 'V-469
        County Attorney
        Galveston County               Re:   Authority'of a com-
        Galveston, Texas                     missionersO court to
                                             purchase an automo-
                                             bile for the county
                                             juvenile officer with
                                             money seised in a
                                             gambling house raid,
       Dear Sir:

                  Reference is made to your letter and enclo-
        sures of recent date wherefn you request the opinion of
        this Department on the following question:
                   "Does the County Auditor have authority
              to advertise for and purchase an automobile
              for the Juvenile Officer of Galveston County,
              Texas, with money sefsed,in a gambling house
              raid, said money being declared confiscated
              by an order of the District Judge under the
              provisions of Artiele 637, Penal Code of
              Texas, and delivered ,to the County by said
              order upon the condition that it be used for
              that purpose, where said money was deposited
              by the 6ounty,Audftor in the General Fund,
              and where there is no pr.ovisfonunder %he
              law permittfng the purchase by the County of
              Galveston of an automobile for the Juvenile
              Officer?"
                 This Department, following the decisions af
       the Texas courts, has repeatedly held that the Commie-
       sionersQ Court is a Court of limited jurisdiction and
       has only,such powers as are conferred upon it by the
       statutes and Constitution of this State, either by ex-
       press terms or by necessary implication. See, 18 of
       Art,,V, Constitutfonof Texas; Art, 2351, V,C,S.; Von
       Rosenberg vsO Lovett, I.73S,W, 508; Galveston, H, & S,
       A, Ry. Coo VS~ Uvalde County, 167 SOW, (2d) 1084; 11
       Texi Jur, 5640
                                               ..    .




Hon. Sherwood Brown, Jr. - Page 2   (V-469)


          In former Opinion No, O-5812 dated February
9. 1944. this Department had under consideration the
authority of the-Commissioners( Court to purchase au-
tomobiles for the county judge, county tax assessor-
collector and county probation officer, all to be used
in the performance of officialbusiness. In advising
that the Legislature of Texas, in the absence of a
special County Road and Bridge Law, and under provi-
sions of the general law, had granted authority to Com-
missioners' Courts to purchase automobiles for only the
sheriff and the district attorney or criminal district
attorney in certain counties, and for no other county
officials. The opinion used the following language:
          "No other statutory or constitutional
     authority exists, so far as we have been
     able to ascertain, whereby a Commissioners
     Court may furnish or allow an automobile
     for the'use of any'county or district of-
     ficials, other than those hereinabove listed.
          "It is a familiar rule of construction
    th&the    specification of one partioular
            excludes all other cl.asseso
    v. &el,    (Civ. App,) 61 S,W; (2d) 14"?t"
    Also see 39 Tex. Jur,, pe 188, par. 100, in
    which the Pexpressio unius' rule (the ex-
    pression of one thing is exclusive of an-
    other) is discussed. Said rule of construc-
    tion clearly has application to the~ouestions
    now under consideration, The Legislature has,
    by general law, only designated two classes
    of officers that might be allowed automobiles
    for official use by the Commissioners',Court,
    They are sheriffs and certain District Attor-
    ne s or Criminal District Attorneys as afore-
    eaf de Not having so designated any other of-
    ficer or officers to whom the Commissionersq
    Court might furnish or allow automobiles for
    official use) the Legislature has granted no
    authority by general law to said Court to
    furnish or allow automobiles for such use to
    any officials other than those already named."
          We are aware of the special road law, with the
amendment thereto, under which Galveston County operates.
However, we find no authority contained in it forthe
purchase of an automobile for the county juvenile offi-
cer of Galveston County.



                                )
Hon, Sherwood Brown, Jr0 - Page 3   (V-469)


          Tubing directly to the question now under con&
sideration, we quote Sec. 3 of Art, 637, V,P,C,, in part,
as follows:
         "If upon a hearing of the matter referred
    to in Art, 636, Penal 6ode of Texas the JUS-
    tice of the Peace, 6ounty Judge or &Lstrict
    Judge before whom the cause is pending, shall
    determine that the property seized is a gaming
    table, bank,or gambling paraphernalia and equip-
    men% per 5e, or if Che Justice of the Peace,
    County Judge or District Judge shall determine
    that the same8 or any part thereof, was in
    fact used as equipment OP paraphernalia for
    gambling.house or was being used for gaming
    purposes, then any money or coins seized in or
    with said equipment or paraphernalia shall;by
    order of the 60urt, be declared confiscated,
    and the GOUP% shaalll
                        cause the same to be de-
    livered to %he S&ate of Texas or any political
    subdivision thereof, OP to any State institu-
    tion to be used by it for its own use and bene-
    fi%, or the Cour% may fn its dfscre%ion order
    such money or coins to be delivered to the
    Grand Jury of the county in which such equip-
    ment or paraphernalia was seized; to be used
    by said Grand Jury for the purpose of %nveati-
    gatfn the violations of the gaming laws of
    this 5tate or for the purpose of investigating
    violations of any of the provisions of the
    Penal 6ode of this State, O Qn




fiscated in a gambling house raid to GaYves%on 6ounty
burdened, however, with an express condition as to its
future use0
          We quote Art, XVI See, 24 Gonstitution of
Texas, and Arts, 1626 and I&28, V,6,S, as foliows:
          "Sec. 24, The Legislature shall make
     provision for laying out and work%ng public
     roads, for %he building of bridges, and for
     utilizing fines, forfeitures, and convict
     labor to a91 these purposesOn
Hon, Sherwood Brown, Jr. - Page 4   (V-469)



          Art, 1626 reads as follows:
          "Claims against a county shall be reg-
     istered in three classes, as follows:
          "1. All'jury scrip and scrip issued for
     feeding jurors.,
          "2. All scrip issued under the provi-
     sions of the road law or for work done on
     roads and bridges.

          “3.  All the general indebtedness of the
     county, including feeding and guarding pris-
     oners, and paupers9 claims,"
          Art. 1628 reads as follows:
         "The funds received by the county treas-
    urer shall be classed as follows, and shall be
    appropriated, respectively, to the.payment of
    all claims regist~eredin the first, second and
    tkiirdclasses:
          "1, All jury fees;all money received
     from the sale of estrays, and all occupation
     taxes.
          "2. All mon'eyreceived under any of the
     provisions of the road and bridge law, in-
     cluding the penalties recovered,from railroads
     for failing to repair crossings, and all fines
     and forfeitures,

          “30  All money received, not otherwise ap-
      ropriated herein or by the commissioners court."
     PUnderlining supplied)
         -Forfeiture is the loss of lands and goods to
the State, as the consequence of crime, and is distin-
guishable from confiscation in that the latter is the
consequence of the forme,r, Forfeiture is the result
which the law attaches as an immediate and necessary
consequence to the illegal acts of the individual; con-.
fiscation implies the action of the state, and property,
although it may be forfeited, cannot be said to be con-
fiscated until the government has formally claimed or
taken possession of itO BlackPs Law Dictionary, 3rd Ed,
.      .




    Hon. Sherwood Brown, Jr. - Page 5   (V-469)


           Clearly a forfeiture has occurred in this case,
and the forfeited property has been confiscated by the
State0 Following the plain import of.the above quoted
constitutional and statutory mandates, if the District
.Judge gives the #1710060 to Galveston County it is to
be deposited in the road and bridge fund of Galveston
County. Once in the road and bridge fund, it becomes
county funds for all intents and purposes and is to be
expended by the commissioners' court as the Constitution
and statutes direct that road and bridge funds should be
spent.
              The CommissionereD Court of Galveston County
    is powerless to fulfill the condition placed upon the
    use'of the Qbl7lOb60delivered to it under the terms of
    Art. 637, V.P.C,, in the absence of statutory or con-
    stitutional authority. The Commissioners' Court can
    function only where authority ha6 been conferred upon it
    and in this instance no authority to ex end county funds
    for an automobile for the county juvenife officer exists,
              In view of the fore$olyi we are of the opin-
    ion that the county auditor o Ga veeton County has no
    authority to advertise for and purchase an automobile
    for the county juvenile officer with money confiscated
    and delivered to Galveston County under the circumstances
    you have outlined.


                A commissionersP court has no authority
           to purchase an automobile for the county ju-
           venile'officer with money seised ina gambling
           raid and declared confiscated by a district
           court and delivered to the county upon condi-
           tion that it make such purchase. Sec. 3$ Art.
           637, V,P,C,; Seca 24 Art. XVI Texas Con&.,
           Art. 1628 V.CoSos Opinion No, b-5812.

                                        Yours very truly
    APPROVED:                      ATTORNEY GENERAL OF TEXAS



                                   BY
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