« ForrigeFortsett »
of intoxicating liquor has been prohibited under the laws of this state, kept, maintained or used for the purpose of selling intoxicating liquor in violation of law, and any intoxicating liquor kept or possessed for such purpose, whether kept or possessed in any such place, room building or elsewhere, and any signs, screens, bars, bottles, glasses and any other furniture, tools, appliances or other articles or things used as aids in keeping and maintaining any such place, room or building, or any such liquor are each and all hereby declared to be a common nuisance.
SEC. 2. Upon affidavit being made by any suitable person of the County where the proceeding is begun, before the County Judge or a Justice of the Peace of said County, describing the place, room, or building where it is believed by the affiant that intoxicating liquor is being sold in violation of law, or is being kept or possessed for the purpose of being sold in violation of law, or shall name or describe if the name is unknown, any person who has, keeps or possesses any intoxicating liquor for the purpose of sale in violation of law, then and in either event it shall be the duty of such County Judge or Justice of the Peace, as the case may be, to issue a warrant commanding the sheriff or any constable of the County to immediately search such place, room or building, describing the same, or such person giving name or description, and it shall be the duty of said officer to whom said warrant is delivered by the County Judge or Justice of the Peace to immediately search such place, room or building or such person, and if refused admission into any such place, room or building or into any place, room or building, or into any place, room or building where the affiant has good reason to believe any such person has placed or secreted any such liquor, then, and in such event, the officer executing such warrant shall be and is hereby authorized to force an entrance to any such place, room or building, using such force as may be necessary for that purpose, and he shall search for and seize any intoxicating liquor found in such place, room or building, or in the possession or under the control of such person named or described in said warrant, and shall also seize all signs, screens, bars, bottles, glasses, furniture, tools, appliances or other articles or things used in keeping or maintaining such place, or used in any manner as an aid to the unlawful sale of intoxicating liquor; and after seizure he shall make an accurate inventory of everything seized, stating therein the estimated value of each item, and shall securely keep the same until replevied or otherwise disposed of under the provisions of this Act.
SEC. 3. The search warrant above provided for shall in substance conform to the following requisites; it shall run in the name of the State of Texas and be directed to the Sheriff or any constable of the County; shall command him to search the place, room, premises, building or any part thereof, or the person named in the complaint, and shall specify in general terms the things to be searched for and seized, and shall be signed officially by the magistrate issuing the same; provided, an immaterial variance between the complaint and warrant shall not render the latter void.
SEC. 4. At any time before the trial of the issues as provided herein the owner of said property seized, or any part thereof, or the person in whose possession or under whose control the same was at the time of seizure, may replevy the same by giving bond with two or more good and sufficient sureties, or a solvent guaranty or surety company, chartered or authorized to do business under the laws of this State, to be approved by the officer making the seizure, or his successor in office, payable to the State of Texas, in an amount equal to the value of the property replevied, as fixed on the inventory; conditioned, that should said property in said action be condemned as a nuisance, the obligors in such bond will pay to the State of Texas the amount thereof, being the value of the property replevied as fixed by said officer, and all costs, including 15 per cent additional on said amount as a fee to the County or District Attorney who discharges such duty for the State, and 10 per cent on the amount thereof for the Sheriff or constable.
SEC. 5. The officer executing said warrant shall within fifteen days make due return to the County Judge or the Justice of the Peace issuing the same, and when a seizure has been made thereunder he shall within five days after said seizure make said return, showing therein a list of the liquor and other articles seized, the value thereof as fixed by him, and the replevy bond or bonds, if any given, and if not replevied the name and residence of owner or owners of any such property seized and not replevied, and if no one is known to be the owner, then the name or names and residence of the person, firm or corporation in whose possession or under whose control said liquor or other property was when seized; on return being made to said County Judge or Justice of the Peace, he shall file and docket said cause or causes, the same to be filed and docketed in the proper Court of said County having jurisdiction of the amount involved, as shown by the valuation of the officer, or by the amount of the replevy bond or bonds, if any; provided, that when the County and District Court have concurrent jurisdiction, then the same shall be filed in either the County or District Court, as directed by the County Attorney of the County or District Attorney who may represent the State in such proceedings; provided, further, when two or more replevy bonds are given or where there are two or more owners or claimants to the property or parts thereof seized, urging distinct and separate claims, then, and in such event, each case shall be filed and docketed separately in the proper Court, and in such event said County Judge or Justice of the Peace shall make and certify to as many copies of the original papers as there are cases, all of which shall be considered and treated as originals. The Justice of the Peace or Clerk of the Court when filed, shall docket the cause in the name of the State of Texas, as plaintiff, and the principal in the replevy bond, and if not replevied the name of the owner or person found in possession, as defendant.
SEC. 6. The Court in which such case or cases shall be filed shall immediately issue notice, which shall be served upon the defendant in the manner required for service of citation in civil suits, provided the defendant shall be required to answer if served ten days before the first day of the return term, excluding the day of service and return; and provided further, the defendant shall have the right to expedite a trial of the issue by waiving service and time; said cause if tried by a jury shall be submitted on a special issue, which shall be in substance whether or not the intoxicating liquors and other property seized constituted a nuisance within the meaning of this Act, when seized. The said cause shall have precedence in all Courts over all other causes except cases of like kind or cases to which the State is a party; the same shall be tried and prosecuted under the rules of evidence, practice and procedure, and in all other respects as other civil cases; and in case of appeal the transcript shall, without delay, be made up and forwarded by the Clerk to thc proper Appellate Court; provided, that the State shall not be required to pay or give security for costs, nor bond on appeal, and the same shall be perfected by notice thereof given in open Court.
Sec. 7. The notice provided for in this Act, shall briefly recite the record upon which it is based; provided, that any immaterial variance between the writ and former proceedings will not be fatal thereto. It shall require the defendant to show cause by a day named why the liquor and other articles seized should not be declared a nuisance; but the burden of proof shall be upon the State to show by a preponderance of the evidence that the allegations of the complaint are substantially true.
SEC. 8. The property shall remain in the custody of the officer seizing or in that of his successor in office until final judgment subject to such orders for the preservation of same as the Judge or Justice of the Peace may make, either in term time or vacation as shall appear to be to the best interest of all parties concerned; provided, that the defendant in said suit may replevy the property at any time prior to final trial.
SEC. 9. Should the State prevail in the suit, the Court shall enter a judgment condemning the property seized to be destroyed and against the defendant for all costs, and shall issue a proper writ directing the Sheriff or any constable of the County to execute the same. The said writ shall conform in all material respects to the writ of execution, except that it shall command said officer, in addition to making levy sufficient to collect the amount of costs, to destroy said property in the manner most suited to its nature. If the property, prior to the entry of said judgment, has been replevied, judgment shall be entered against the principal and the sureties on such bond for the full amount thereof, including 15 per cent thereof attorney's fees and 10 per cent fee to the sheriff or constable, and the judgment when collected, less the costa, shall be paid into the County Treasurer, and shall become a part of the jury fund of the County. Should the defendant prevail, judgment shall be entered restoring said property seized to the defendant or discharging the replevy bond, as the case may be.
SEC. 10. In all cases when the State recovers judgment there shall be taxed against the defendant as costs the usual fees allowed in civil cases, in addition to 15 per cent of the value of the property for the County or District Attornev’s fee, and 10 per cent of the value thereof for the sheriff or constable, which fees and costs shall not be accounted for by said officers under any provisions of law relating to fees of office; provided, however, that the State shall in no event be liable for or be required to pay any costs.
SEC. 11. The actual, threatened or contemplated use of any place, room, premises, building or part thereof, in any County, Justice Precinct, town, City, or sub-division of a County, as may be designated by the Commissioners' Court of said County, in which the sale of intoxicating liquor has been prohibited under the laws of this State, for the purpose of selling intoxicating liquor in violation of law, or in which to keep, store or deposit any intoxicating liquor for the purpose of being sold in violation of law, or the possession of or having under control or management at any such place, or any intoxicating liquor for the purpose and with the intent to sell the same in violation of law, shall be enjoined at the suit of the State or of any citizen thereof.
SEC. 12. Any person, company, corporation or association of persons who may so use, or be about to use, or who may aid or assist in any such actual or threatened use of such place, room, premises, building or part thereof, or any person who may have, possess or manage for any such purpose any intoxicating liquor, or who may aid or assist another in thus possessing, having or maintaining or managing intoxicating liquor for such purpose, may be made a party defendant to such suit.
SEC. 13. The Attorney General and the several District and County Attorneys shall institute and prosecute all such injunction suits, that the said Attorney General or District or County Attorney may deem necessary; provided, that such suit may be brought and prosecuted by any one of said officers; and provided, further, that nothing contained herein shall prevent such injunction from issuing at the suit of any citizen of this State who may sue in his own name; and any such citizen shall not be required to show that he is personally injured by reason of the matters and things of which he complains.
SEC. 14. The procedure in all cases brought hereunder shall be the same as in other suits for injunction, or where injunction is sought as near as may be; provided, that where the suit is brought in the name of the State by any of the officers aforesaid, the petition therefore need not be verified, nor shall the State be required to pay or give security for costs or on appeal, and appeal by the State shall be perfected by giving notice thereof in open Court, and all such cases shall have precedence on the docket of all Courts where pending.
SEC. 15. In any proceeding under the provisions of this Act evidence of the general reputation of the house, place, building, premises, or part thereof, or of the business, occupation or pursuit of the defendant involved, may be admitted in evidence as tending to prove the allegations of the complaint; provided, that in any investigation no person shall be exempt from giving testimony therein, but the testimony given by a witness shall not be used against him in any criminal action or proceeding, nor shall any criminal action or proceeding be brought against such witness on account of any testimony so given by him.
Sec. 16. The insufficiency of the laws of this State to prevent violation of the local option laws, create an emergency and an imperative public necessity demanding that this Act take effect and be in force from and after its passage, and the same is so enacted.
[NOTE.—The enrolled bill shows that the foregoing act passed the Senate by the following vote, yeas 27, nays 0; was referred to the House of Representatives, amended and passed by the following vote, yeas 90, nays 5, and that the Senate concurred in the House amendments by the following vote, yeas 25, nays 1.]
Approved April 5, 1907.
FISH-REGULATING THE TAKING OF.
H. B. No. 500.1
An Act to amend Chapter 153 of the General Laws of the State of Texas, passed
at the Regular Session of the Twenty-fifth Legislature, and amended at the Regular Session of the Twenty-sixth Legislature, and at the Regular Session of the Twenty-seventh Legislature, and at the First Called Session of the Twenty-seventh Legislature, and at the Regular Session of the Twenty-eighth Legislature, and as amended by the Regular Session of the Twenty-ninth Legislature, “An Act to prohibit the taking of fish from the fresh waters and streams of this State otherwise than by means of the ordinary hook and line and trot line; and to prohibit the sale or shipping of game fish in this State; and to provide penalties for the violation thereof, by fixing a penalty for the use of poison, dynamite or other explosives in killing, catching and taking fish.
SECTION 1. Be it enacted by the Legislature of the State of Texas: That Chapter 153 of the General Laws of the State of Texas, passed at the Regular Session of the Twenty-fifth Legislature, and amended at the Regular Session of the Twenty-sixth Legislature, and at the Regular Session of the Twenty-seventh Legislature, and at the First Called Session of the Twenty-seventh Legislature, and at the Regular Session of the Twenty-eighth Legislature, and as amended by the Regular Session of the Twenty-rinth Legislature, be amended to hereafter read as follows:
Chapter 153, Section 1. That if any person shall at any time during the year, take, catch or kill, or attempt to take, catch or kill, any fish by means of poison, dynamite or any other explosive in any of the fresh waters, lakes and streams of this State, such person shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than fifty nor more than two hundred dollars or by im prisonment in the county jail for a term of not less than twentyr more than sixty days, or by both such fine and imprisonment.
Sec. 2. If any person shall at any time during the year, take, catch, ensnare or entrap any fish (except minnows for bait) by means of nets, or in any other manner than with the ordinary hook and line or trot line, except as specified in Section 1 of this chapter, such person shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than twenty-five nor more than one hundred dollars; provided, that the following counties are hereby exempted from the provisions of this section: Anderson, Angelina, Archer, Baylor, Bosque, Brown, Burnet, Brazoria, Bowie, Camp, Caldwell, Chambers, Cherokee, Cass, Coryell, Comanche, Delta, De Witt, Eastland, Fanning, Freestone, Galveston, Goliad, Grimes, Hamilton, Hardin, Hopkins, Hill, Hood, Houston, Jefferson, Johnson, Jones, Knox, Lamar, Lavaca, Limestone, Liberty, Llano, Mason, Matagorda, Morris, Nacogdoches, Newton.