Honorable R. H; Jones
County Attorney, Polk County
Llvingeton, Texas

                                      opinion No. Q-6966

                                      Re:   When a criminal prosecution
                                            for unlawfully possessing
                                            whiskey in a dry area for
                                            purpoee of sale ie dismissed
                                            because the whiskey to be
                                            used 88 'evidence*e seized
                                            illegally, what is the legal
                                            disposition of such whiskey?

Dear Sir:

            We heve received your recent inquiry, from which we quote aa
followe:

         "A Search warrant wae ieeued by a Juetice of the Peace
    to search the residence end premises of one Jewel1 Patterson.
    The Search Warrant wae supported by the affidavit of only one
    person, a deputy rheriff,stating that Alcoholic Liquors were
    being kept end cold from there.

         'The oificera went to said residence and found therein
    38 quarts of regular sealed, labeled, and taxed whiskey, which
    the sheriff took into hi6 poseeaeion,,receipted esid Pattereon
    for ecune,end sent one copy inventory-receipt report to the
    Liquor Control Board, es provided in Art. 666-30, (b).

         "The caee wee eet for trial. Patterron had secured coun-
    cl1 and the cam wee called for trial Nov. 30, 1945. The De-
    fendante council moved to quash the Complaint on the grounds
    that the Liquor wae seized under illegal Search Warrant in    ,'
    that on4 one effidavit supported it. This objection appeared
    to me to be well founded, after reading Art. 666-20, and be-
    lieving that.1 could not expect to get a conviction in the
    case, I asked the Judge to diemiae the case, which he did.

         "lbw, the quertion le, What ehall be done with,the
    Liquor? I have failed to find any law applicable to such
    a case. The defendant's council, though requested, hae
Honorable R. H. Jones - page 2 (o-6966)



         failed to produce any law on the matter. It is unfortunate
         that the Search Warrant was defective, for it is very evi-
         dent that the liquor was possessed for the purpose of sale.
         The Defendant lives in a very modest farm home and from
         every visible appearance, a person of very small means, and
         not one who would have had such an amount of liquor for his
         own me.   Since the case is dismissed, are the officers re-
         quired to let defendant recover the liquor?"

            Article 666-20, Vernon's Annotated Penal Code of the State of
Texas, on the subject of searches and seizures under the Texas Liquor Con-
trol Act, appears as follows:

              "A search warrant may issue under Title 6 of the Code
         of Criminal Procedure for the purpose of searching for,
         seizing, and destroying any alcoholic beverage possessed,
         sold, transported, manufactured, kept, or stored in viola-
         tion of the provisions of this Act; for the purpose of
         searching for and seizing any equipment and instrumentality
         used for, capable of use for, or designed for use in the
         manufacturing of any illicit beverage or any vehicle or in-
         strumentality used or to be used for the illegaitransporta-
         tion or storage of any illicit beverage, unlawful equipment,
         or materials used or to be used in the illegal manufacturing
         of any illicit beverage and for the purpose of searching for
         and seizing any forged or counterfeit stamp, die, plate, of-
         ficial signature, certificate, evidence of tax payment, li-
         cense, or other instrument pertaining to this Act, or any
         instrumentality, or equipment, or parts thereof used or to
         be used, designed, or capable of use for the manufacturing,
         printing, etching, inditing, or any other way bringing into
         existence any forged or counterfeit stamp, die, plate, certi-
         ficate, official signature, evidence of tax payment, permit,
         license, or any other instrument pertaining to this Act.

              "Search warrants may be issued by any magistrate upon
         the affidavit of a credible person, setting forth the name
         or description of the owner or person in charge of the prem-
         ises to be searched, or stating that his name and description
         are unknown, the address or description of the premises, and
         showing that the described premise is a place where some speci-
         fied phase or phases of this kct are violated or are being vio-
         lated. If the place to be searched is a private dwelling occu-
         pied as such and no part thereof is used as a store, shop, hotel,
         boarding house, or sny purpose,other than a private residence
         such affidavit shall be made by two (2) credible persons.

              "Except as herein provided the application, issuance, and
         execution of any such warrant and all proceedings relative
Honorable R. H. Jones - page 3 (O-6966)



       thereto shallconform as near as may be to the provisions
       of Title 6 of the Code of Criminal Procedure.

           "All such alcoholic beverages end articlea shell be
      seized by the officer executing the warrant and shall not
      be taken from the custody of any officer by writ of replev-
      in nor any other process but shall be held by such officer
      to await final judgment in the proceedings. It is not in-
      tended by the proviaione of this Section,that a search war-
      rant shall be required for any peace officer or any agency,
      representative, or inspector of the Board to search any
      premise covered by any permit or license under the provi-
      sions of this Act." (Underscoring edded for emphasis.)

            Article 666-42, Vernon’s Annotated Penal Code of the State of
Texas, on the subject of seizure of liquors end the disposition of same,
appears 8s follows:

           "(a) All alcoholic beverages declared by this Act to
      be a nuisance, and all illicit beverages as defined by this
      Ad;, may be seized with or without a warrant by an egent or
      employee of the Texas Liquor'Control Board, or by any peace
      officer, and any person found in the possession or in charge
      thereof may be arrested without a warrant. Bo alcoholic
      beverages or articles so seized shall be replevied, but shall
      be stored by the Board, or by the sheriff of the county where-
      in the seizure was made, to be held for final action of the
      court as hereafter provided.

           "(b) It shall be the duty of~the Attorney General, the
      District Attorney, and the County Attorney, or eny of them,
      when notified by the officer making the seizure, or by the
      Texas Liquor Control Board, that such seieure has been made,
      to institute e suit for forfeiture of such alcoholic bever-
      ages and property, such suit to be brought in the neme of
      the State of Texas in any court of competent jurisdiction
      in the county wherein such seizure was made. Notice of pend-
      ency of such suit shell be served in the manner prescribed by
      law and the case shell proceed to trial as other civil cases.
      If upon the trial of such suit it is found that alcoholic
      beverages or property are,* nuisance or were used or kept in
      maintaining e nuieencei,under the term of this Act, or that
      the alcoholic beverage is illicit, as defined by this Act,
      then the court trying said:cause shell render judgment for-
      feiting the same to the State of Texas end ordering the same
      disposed of as provided for by Section 30 of this Article.
      The costs of such proceedings eball,be paid by the Board,
      out of funds derived under the provisions of said Section 30,
      or from eny other fund evaileble~to the Board for such purpose.
Honorable R. H. Jones - page 4 (o-6966)



           "(c) As to any property or articles upon which there
      may be a lien, by a bona fide lien holder, the holder of such
      may intervene to establish his rights and shall be required
      to show such lien to have been granted in a bona fide manner
      and without knowledge of the fact at the time of creation of
      the lien, that any article or property upon which such lien
      exists bad been used or was to be used in violation of this
      Act. If the holder of any such lien shall intervene, then
      the court trying said cause shall render judgeant forfeiting
      the same to the State of Texas, and authorizing the issuance
      of an order of sale directed to the sheriff or any constable
      of the county wherein the property was seized, commanding
      such officer to sell said property in the same manner as per-
      sonal property is sold under execution. The court may order
      such property sold in whole or in part as it may deem proper
      and the sale shall be conducted at the courthouse door. The
      money realized from the sale of such property shall be applied
      first to the payment of the costs of suit and expenses incident
      to the sale and after such expenses have been approved and al-
      lowed by the court trying the case, then the further proceeds
      of such sale shall be used to pay all such liens according to
      priorities and any remaining proceeds shall be paid to the
      Board to be allocated as provided in Section 30 hereof. All
      such liens against property sold under this Section shall be
      transferred from the property to the proceeds of its sale.

           "(d) The sheriff executing said sale shall issue a bill
      of sale or certificate to the purchaser of said property, and
      such bill of sale or certificate shall convey valid and unim-
      paired title to such property." (Underscoring added.)

            Article 666-3a, V.A.P.C., defines the term "Illicit Beverages"
as used in Article 666-42, supra, as follows:

            "'Illicit Beverage' shall mean and refer to any alcoholic
      beverage manufactured, distributed, bought, sold, bottled, recti-
      fied, blended, treated, fortified, mixed, processed, warehoused,
      stored, possessed, imported, or transported in violation of this
      Act, or on which any tax imposed by the laws of this State has
      not been paid end the tax stamp affixed thereto; and any alcoholic
      beverage possessed, kept, stored, owned, or imported with intent
      t 0 manuf*cture, sell, distribute, bottle, rectify, blend, treat,
      fortify, mix, process, warehouse, store, or transport in viol*tion
      of the provisions of this Act." (Underscoring added.)

            Subsection (b) of Article 666-4, V.A.P.C., declares the follow-
ing to be in violation of the Texas Liquor Control Act:

           "(b). It shall b&unlawful for any person in any dry area
      to manufacture, distill, brew, sell, possess for the purpose of
Honorable R. 8. Jones - page 5 (o-6966)



       sale, import into this State, export from the State, trans-
       port, distribute, warehouse, atore, solicit or take orders
       for, or for the purpose of sale to bottle, rectify, blend,
       treat, fortify, mix, or process any liquor, distilled spir-
       its, whiskey, gin, brandy, wine, rum, beer or ale." (Un-
       derscoring added.)

             You state that the criminal proceedings, based on the
seizure in question, have been dismissed. Even if such proceed-
ings had resulted in a conviction, in order to dispose of said
seized liquor legally, it would be necessary to proceed under
Article 666-42, supra, to declare such liquor an "illicit bever-
.3gew,i.e., unlawfully possessed in a dry area for the purpose
of sale. We do not believe the civil proceedings under Article
666-42, supra, to be dependent upon a criminal conviction as a
matter of law. As a practical matter, a prior conviction for
a criminal offense concerning the subject matter of the seizure
is highly desirable and, in soms cases, almost a necessity. In
the case in question, you may file a forfeiture suit against such
seized liquor under Article 666-42, supra, and attempt to prove
same an "illicit beverage", i.e., possessed in violation of the
Texas Liquor Control Act. This being a civil proceeding, Article
727*,  Code of Criminal Procedure, prohibiting the use of evidence
illegally obtained on the trial of any criminal case, does not
control, and the result of the search and seizure in question
would be competent evidence therein. See McCormick and Ray, Texas
Evidence, page 308; Allison v. American Surety Company, 248 S. W.
829 (Civ. App.); and M&o11 et ux v. Hardin, 70 S. W. (2d) 327
(Civ. App.).

            Whether or not a proceeding under said Article 666-42
would be warranted in the instant case can best be determined
by you. The strength of available proof as to the criminal in-
tent of the possessor of such liquor would be a matter to consider.
While the possession of more than one quart of whiskey would in-
voke the legal presumption of criminal intent as to its contemplated
use, yet it is a presumption only and rebuttable by contrary proof.

            In the event no proceeding of forfeiture is instituted
under said Article 666-42, as outlined above, or if said proceeding
is instituted and judgment is rendered therein against the State of
Texas, then the said liquor should be returned to the person from
whom it was seized.
Honorable R. H. Jones - page 6 (O-6966)



             Trusting this satisfactorily solves your problem, we
are

                                               Yours very truly,

APPROVED DEC 17 1945                      ATTORNEY GENERAL OF TEXAS

Id    Grover Sellers
                                          By   /s/ Robert L, Lattimore, Jr.
A!-Ll!ORN!ZY
         GENEWL   OFTEXAS                          Robert L. Lattimre, Jr.
                                                                 Assistant

RLL:gb:lm


                                        APPR0VF.D
                                        OPINION
                                       COMt4ITl!EE
                                       BY Is/ GWB
                                         CHAE=MAN
