Untitled Texas Attorney General Opinion ( 1962 )

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FVILL WILSON.
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IJovcmbcr21.>~1962
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:::aljace Opinion m.:ib78
District Attorney
3rd Judicial District EC : titlethor
the Shoplifting Act,
Athens, Texas Article'l4?6e, V.P.C., re-
peals that portion of Arti-
cle 1426c, V.P.C., relating
to edible meats; whether
conviction.for misdemeanor
theft constitutes'grounds
Dear Sir: for removal from'office.
You have requested an opinion on whether.the~Shoplift-
ing Statute, Article 1436e; Vernon's Penal Code, repeals
that portion of Article 1426c, Vernon's Penal Code,~relating
to~edible~meats.
The relevant portions of the statutes involved are as
follows:
firticle14x6?,.V.P.C.;:Shoplifting:. ' -'
"Section 1. Any person while legally'in
a retail business establishment as an invitee, ~.
or licensee who removes from its place,~goods,
edible meat or other corporeal personal pro-
perty of any kind or character under the value
of Fifty Dollars ($50.00) kept, stored or dis-,
played for sale -fliththe .&ntent.'to~.draudulently.
take and to deprive the owner of the value of -Lo
the same.and to,appropriate the same to the use
and benefit of-the person takingis guilty Of
shoplifting, Altering.of label or marking on
,goods, edible meat or other corporeal personal
proper~tyor transferring same from onecontainer
to anothrr'rrithintent to defraud the .owner~
also ~constitutes the crinc ofshoplifting.:' ,.
6. All ~la\iis.:a,nd-'~par'ts
!!,Section~ of iau;:in-,
consistent~or conflictin,g;iith':this
~.L\ct,
ibe
hereby'e:State, supra.
There being no conflict which would impair either
statute's validity, the clear meaning of Section 7 would
apply and the State has the right of election between~
offenses in a proper case.
You have also inquired if a conviction for misdemeanor
theft against a Sheriff constitutes official misconduct in
office which would work an immediate removal from office.
Article 5968, V.A.C.S., provides:
"All convictions by a petit jury of any
county officers for any,felony, or for any
misdemeanor involving official misconduct,
shall work an immediate removal from office
of the officer so convicted. Each such
judgment of conviction shall embody within
it an order removing such officer."
- .
Hon. Mack Wallace, Page 4 (``-1478)
Article 5973, V.A.C.S., provides:
"By 'official misconduct,t as used herein
with reference to county officers, is meant
any unlawful behavior in relation to the duties
of his office, wilful in its character, of any
officer intrusted i&any manner with the ad-
ministration of justice, or the execution of
the law; and includes any wilful or corrupt
failure, refusal or neglect of an officer to
perform any duty enjoined on him by law."
It is apparent from these articles that in order for
misdemeanor theft to constitute official misconduct, it must
have been committed under some color of office. The deter-
mination of whether or not ,such theft was committed in re-
lation to the duties of office must, of course, be made from
the facts of each particular case.
SUMMARY
Article 1436e does not repeal that por-
tion of Article 1426~ relating to edible meats.
In order for a conviction for misdemeanor
theft to constitute grounds for removal from
office, such theft must amount to official mis-
conduct.
Sincerely,
WILL WILSON
Attorney General of Texas
Assistant Atto
PP:nss
- -
Hon. Mack Wallace, Page 5 (``-1478)
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
Norman V. Suarez
Ben Harrison
Pat Bailey
Cecil Rotsc~h
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore