                                     1965

Honorable Robert S. Calvert              Opinion   No. C-539
Comptroller of Public Accounts
Austin, Texas                            Re:   Whether peace officers,
                                               under the laws of Texas,
                                               have the authority   to de-
                                               tain or seize unstamped
                                               cigarettes,   If in a pro-
                                               hibited quantity end in
                                               the possession   of an un-
Dear Mr. Calvert:                              authorized person.
          You recently   requested   an opinion     from this   office
on the following   question:
              “Since the recent inorease by the
          Legislature   in the oigarette   tax, we
          are experiencing    an Increase in the
          Influx of unstamped cigarettes      into
          the State of Texas.      This department
          requests your opinion as to whether or
          not peace officers    under the laws of
          this State have the authority     to de-
          tain or seize unstamped cigarettes       if
          in a prohibited    quantity and In the
          possession  of an unauthorized person.”
         Article   7.37, Taxation-General,  Vernon’s Civil Stat-
utes, makes the transportation    and the possession  for use,
sale, or exchange of unstamped cigarettes    in quantities  of more
than 40 clgaxettes    a felony.
             Article   7.30, Taxation-General,      Vernon’s Civil Stat-
 utes, provides for the seizure by the Comptroller of cigarettes
‘which are transported       in violation   of the law or found in the
 possession,     custody, or control of any person in violation       of
 the cigarette      tax law and Article    7.31 thereof provides for the
 dlsposltion     of the cigarettes     when seized.
         Article  7.30,    in addition    to providing   for the seizure
of unstamped cigarettes,     provides:
Honorable Robert    S. Calvert,   Page 2, C-539


              II
                    . All such cigarettes,   vehicles
          and iriperty   so seized as aforesaid,     re-
          maining in the possession     or custody of
          the Comptroller,   sheriff   or other offl-
          cer for forfeltuI
          asprovided    by law,. shall be deemed to be
          in the custody of law and lrrepleviable.”
          (Emphasis Added’)
            The above provision    recognizes  that the authority to
seize unstamped cigarettes       is not vested exclusively     in the
Comptroller and that sheriffs       and other officers    may make such
seizures.     An officer   making a legal arrest Is authorized to
search the premises and seize the things used In carrying out
a criminal enterprise.        Stokes v. State, 35 S.W.2d 727 (Tex.
Crlm. 1931).     Therefore,    under the laws of the State of Texas
any pea&e bfficer      may seize unstamped cigarettes     when there is
a legal right to arrest the person found In possession           of such
cigarettes,    and a lawful search has disclosed       the presence of
unstamped cigarettes.
          Article  34 of Vernon’s Code of Criminal Procedure pro-
vides that the sheriff   and his deputies,    constable,   the marshal
or policemen of an Incorporated     town or city,   the officers,  non-
commissioned officers   and privates of the State ranger force,
and any private person specially     appointed to execute criminal
process are “peace officers.”
           Article  2.12 of Senate Bill 107, 59th Legislature,             to
take effect    and be In force on January 1, 1966, provides:
               “The following    are peace officers:     The
           sherfff   and his deputies,    constable,   marshal
           or policemen of an incorporated       town or city,
           the officers,    non-commissioned officers     and
           privates   of the State Ranger Force and De-
           partment of Public Safety, law enforcement
           agents of the Texas Liquor Control Board, and
           any private persons specially       appointed to
           execute criminal process.”
          Article 666-7% of Vernon’s Penal Code provides that
commissioned inspectors  and representatives of the Texas Liquor
Control Board shall have all the powers of a peace officer   co-
extensive with the boundaries of the State.
           In Cervantes v. United States,     263 F.2d 800,      (C,C.A.
gth,   1959), the Court stated:

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Honorable Robert   S. Calve&,    Page 3, C-539


              "An authorized federal border official
          may, upon unsupported suspicion     stop and
          search persons and their vehicles      entering
          this country.    19' U.S.C.A. 13 482.   Carroll
          v. United States, 267 U.S. 132 (1925).       . ."
           It is, therefore,   the opinion of this office      where
a lawful search Is made by a federal border official          and he
discovers   unstamped cigarettes   in quantities     of more than
&3 cigarettes    that are in the possession     of an unauthorized
person and the federal border official        reports the presence
of such cigarettes    to a peace officer    of the State of Texas,
present at the border inspection      station,    then the peace offi-
cer may seize the cigarettes     in his official     capacity as a
peace officer    of the State of Texas.
           A peace officer   who makes a legal arrest,  within the
boundaries of the State, is authorized to search and seize un-
stamped cigarettes,     if In a prohibited  quantity and in the
possession   of an unauthorized person.     Stokes v. State,  supra.

                        SUMMARY
              Under the laws of the State of Texas
          any peace officer   may seize unstamped
          cigarettes  where there is a legal right
          to.~arrest the person found in possession
          of the cigarettes,   and a legal search has
          disclosed  the presence of unstamped cig-
          arettes in a prohibited   quantity in the
          possession  of an unauthorized person.
                                          Very truly    yours,
                                          WAGGONER CARR
                                          Attorney General of Texas




                                          Assistant    Attorney   General
DHC/dt
APPROVEDr
OPINION COMMITFER:

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Honorable   Robert   S. Calvert,   Page 4, C-539


w. V. Geppert,    Chalrman
Sam Kelley
ru~t~u~ahardson
Ivan Williams
APPROVEDFoRTRRATTORNFXGEN~
BY: T. B. Wright




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