Untitled Texas Attorney General Opinion

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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"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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