Untitled Texas Attorney General Opinion ( 1982 )

The Attorney General of Texas
March 19, 1982
MARKWHITE
Attorney General
Mr. Sam Kelley, Commissioner opinion No. w-457
Supreme Court Building Consumer Credit Commission
P. 0. Box 12546
P. 0. Box 2107 KC?: Construction of article
Austin. TX. 7671 l- 2548
Austin, Texas 78768 5069 - 51.03A, V.T.C.S.,
5121475-2501
Telex 9101674-1367 denying pawnbroker's license
Telecopier 5121475.0266 to applicant convicted of
crime involving moral
turpitude
1607 Main St., Suite 1400
Dallas, TX. 75201-4709
21417424944 Dear Mr. Kelley:
You advise that an individual who was convicted of attempted
4624 Alberta Ave.. Suite 160
robbery in California in 1940 has applied for a pawnshop license.
E, Paso. TX. 799052793
This conviction is the only blemish on his record. You ask whether
9151533-3484
section 3A of the Texas Pawnshop Act, article 5069-51.01, et seq..
V.T.C.S., prevents you from granting him a license.
1220 Dallas Ave.. Suite 202
Houston, TX. 77002.6966 Section 3A. codified as article ~5069-51.03A. V.T.C.S., was
7 13165OGS66
enacted by the Sixty-seventh Legislature. Acts 1981, 67th Leg., ch.
99, at 222. It provides in pertinent part as follows:
806 Broadway, Suite 312
Lubbock, TX. 79401.3479 (a) To be eligible for a pawnshop license, an
6061747.5236 applicant must:
4309 N. Tenth, Suite B (1) be of good moral character and not
McAllen. TX. 76501.1665 have been convicted of or be under indictment
5121662-4547 for theft, fraud, forgery, or any crime
involving moral turpitude.
200 Main Plaza. Suite 400
San Antonio. TX. 76205-2797 Nothing in the language of section 3A suggests that the statute
5121225.4191 only applies where a conviction is obtained in a Texas court for an
;:zens;prdeJ Teo~p~l.aw. Compare Muniz v. State, 575 S.W.2d 408 (Tex.
Christi 1978. writ ref'd n.r.e.) (construing
An Equal Opportunity/
Affirmative Action Employer
similar linguage in section 6 of article 320a-1, V.T.C.S.). Thus, the
mere fact that this applicant was convicted in California of an
offense under California law does not excuse him from the provisions
of section 3A(s)(l).
Under section 3A. a pawnshop license must be denied to an
applicant who has been convicted of three specific crimes: theft,
fraud or forgery. A conviction of attempted robbery is not a
Mr. Sam Kelley - Page 2 (m-457)
conviction of theft, fraud or forgery. See Penal Code 5115.01
(criminal attempt); 29.02 (robbery); 31.03 (theft). A license must,
however, also be denied to an applicant who has been convicted of “any
crime involving moral turpitude.” The remaining question, therefore.
is whether this applicant is in this category.
“Crime involving moral turpitude” is a nebulous term which is not
defined in the Texas Pawnshop Act. For that matter, it has never been
clearly defined, although some cases do contain useful discussions of
the term. In Munia v. State, supra, at 411, for example, the court
stated as follows:
Moral turpitude has been defined as anything done
knowingly contrary to justice, honesty, principle,
or good morals. [citations omitted]. It has also
been defined to be an act of baseness, vileness,
or depravity in the private and social duties
which a man owes to his fellow men or to society
in general. [citations omitted]. The term
implies something immoral in itself, regardless of
whether it is punishable by law. The doing of the
act itself, and not its prohibition by statute,
fixes the moral turpitude. [citation omitted].
Immoral conduct is that conduct which is willful,
flagrant, or shameless, and which shows a moral
indifference to the opinion of the good and
respectable members of the community. [citations
omitted].
See generally 62 Tex. Jur. 2d Witnesses 1271.
Section 29.02 of the Texas Penal Code lists the elements of the
crime of robbery. It provides that:
(a) A person commits an offense if, in the
course of committing theft as defined in [section
31.01 et. seq.] of this code and with intent to
obtain or maintain control of the property, he:
(1) intentionally, knowingly, or
recklessly causes bodily injury to another;
or
(2) intentionally or knowingly,
threatens or places another in fear of
inrminent bodily injury or death.
6) An offense under this section is a
felony of the second degree.
Mr. Sam Kelley - Page 3 (MW-457)
r
Section 15.01 of the Texas Penal Code deals with criminal
attempt. It provides in pertinent part as follows:
(a) A person commits an offense if, with
specific intent to commit an offense, he does an
act amounting to more than mere preparation that
tends but fails to effect the commission of the
offense intended.
. . . .
(d) An offense under this section is one
category lower than the offense attempted....
Under present Texas law, therefore, attempted robbery is a third
degree felony.
Under California law in effect in 1940, the year in which this
applicant was convicted, the elements of attempted robbery were in all
essential respects the same as those established by present Texas law.
Section 211 of the California Penal Code provided (and still provides)
that:
Robbery is the felonious taking of personal
property in the possession of another, from his
person or immediate presence, and against his
will, accomplished by means of force or fear.
"Attempted" robbery occurred where there was a soecific intent to
commit- robbery and- a direct, unequivocal, but ineffectual overt act
directed at its consummation. See, e.g., People v. Viscarra, 168 Cal.
Rptr. 257 (Ct. App. 1980); People v. Gibson. 210 P.2d 747 (Ct. App.
1949) (elements of "attempted" cri me): Cal. Penal Code §§663. 664
(West).
We believe Texas courts would treat the Texas offense of
attempted robbery as a crime involving moral turpitude. Compare,
*, Arambula v. State, 112 S.W.Zd 737 (Tex. Grim. App. 1938) (theft
a crime involving moral turpitude); Sherman v. State, 62 S.W.2d 146
(Tex. 1933) (swindling a crime involving moral turpitude); see also
American Motorists Insurance Company v. Evans, 577 S.W.2d 514 (Tex.
Cl". App. - Texarkana 1979, writ ref'd n.r.e.). As noted, this
offense is a third degree felony, and the elements discussed in Munis
v. state, supra, are certainly present. Similarly, we believe the
crime of which this applicant was convicted in 1940 is a crime
involving moral turpitude within the meaning of section 3A(s)(l). The
elements of attempted robbery as then defined by California law were,
as noted, essentially the same as those established by present Texas
p. 1589
Mr. Sam Kelley - Page 4 (MW-457)
law, which demonstrates that the crime “as no less heinous under
California’s criminal justice system than it now is under ours.
We next consider how section 3A(s)(l) applies in the present
situation. As noted before, that section provides that in order to be
eligible for a pawnshop license, an applicant “mustu meet certain
requirements. In our opinion, the word “must” is, in this context,
mandatory. See Vela v. Schacklett, 1 S.W.2d 670 (Tex. Civ. App. - San
Antonio 1927, no writ); 73 Am. Jur. 2d Statutes 522. The consumer
credit commissioner “must ,‘I therefore, deny a license to an applicant
who has been convicted of a crime involving moral turpitude.
It has been suggested that article 6252-13~. V.T.C.S., enacted by
the Sixty-seventh Legislature, Acts 1981, chapter 267, at 694, compels
a different result. Section 4 thereof provides that:
(a) A licensing authority may... disqualify
a person from receiving a license... because of a
person’s conviction of a felony or misdemeanor if
the crime directly relates to the duties and
responsibilities of the licensed occupation.
The argument is that, notwithstanding section 3A(s)(l) of the Pawnshop
Act, the consumer credit commissioner may. by virtue of article
6252-13~. grant an applicant a license if he concludes that the crime
of which the applicant was convicted would not directly relate to the
duties and responsibilities of the licensed occupation.
We disagree. It is true that section 4(a) of article 6252-13~
authorizes (although it does not require) a licensing authority to
deny an applicant a license if it concludes that the applicant’s past
criminal activity would directly relate to the licensed occupation.
On the other hand, section 7(e) of article 6252-13~ provides that
“[u]pon a licensee’s felony conviction... his license shall be
revoked.” (Emphasis added).
We need not, in this instance, determine the import of section
7(e) or resolve the apparent conflict between this section and section
4(a). In our opinion, article 5069-51.03A controls in any event,
because it is a specific statute which provides that an applicant for
a particular license must be denied that license under certain
circumstances. As between neneral and specific statutes, the latter
are uniform nly regarded as the best evidence of the legislature’s
intent, see. e.g., Cuellar v. State, 521 S.l J.2d 277 (Tex. Grim. App.
1975); City of Baytown v. Ange~1, 469 S.W.2d 923 (Tex. Civ. App. -
Houston [14th Dist.1 197 1, writ ref’d n.r.e.), and we believe the
enactment of section 3A(s)(l) of the Pawnshop Act plainly evidences a
legislative intent absolutely to deny pawnshop licenses to applicants
who have been convicted of the specific crimes listed therein.
p. 1590
..
Mr. Sam Kelley - Page 5 (MW-457)
8
SUMMARY
By virtue of article 5069-51.03A, V.T.C.S.,
an applicant who was convicted of attempted
robbery in California in 1940 is not eligible for
a pawnshop license.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Jim Moellinger
Bruce Youngblood
p. 1591