Untitled Texas Attorney General Opinion ( 1958 )

TIXE````~ORNEY GENERAL OFTEXAS Hon. H. H. Wellborn Opinion No. WW-347 County Attorney Rusk County Re: Wilfulaurning of an automo- Henderson, Texas bile belonging to another. Dear Mr. Wellborn: You have requested an opinion as to the proper article of the Texas Penal Code under which to prosecute the criminal offense of the wilful burning of an automobile belonging to another. Articles 1304 of the Penal Code provides: ‘I ‘Arson’ is the yilful burning of any house included within the meaning of the succeeding article of this chap- ter . ” Article 1318 of the Penal Code provides: “Whoever shall wilfully burn any building not a house as defined in the preceding chapter, or shall wilfully burn any stack of.corn, hay, fodder, grain, or flax, or any pile of boards, lumber, or wood, or any fence or other inclosure, the property of another, shall be confined in the penitentiary not less than two nor more than five years, or be fined not exceeding two thousand dollars.” Article 1323 of the Penal Code provides: “Whoever wilfully burns any personal, property belong- ing to another, the punishment for which is not otherwise pro- vided for in this chapter, shall be fi.ned not exceeding,two thou- sand dollars.” Article 1350 of the Penal Code provides: ‘I( 1) It shall be unlawful for any person to wilfully in- jure or destroy, or attempt to injure or destroy, any prop- erty belonging to another, of any kind whatsoever, v&hout Hon. H. H. Wellborn. page 2 (WW-347) the c.onsent of the owner and lienholder, if any, there- on. “(2) Whenever the law provides a particular pun- ishment for the wilful injury or destruction by a certain means, such as by burning, or whenever a particular punishment is provided for wilful injury or destruction of a certain type of property, such as fences, the pro- visions of this Act shall not be applicable. II II . . . Article 1404b of the Penal Code provides: “Section 1. Any person who breaks into or enters a vehicle with the intent of committing a felony or the crime of theft shall be guilty of a felony and upon con- viction thereof shall be confined in the State penitentiary for a term of not more than three (3) years. It is our opinion that Article 1323 is the proper article of the Penal Code under which to prosecute the offense of the wilfulburn- ing of an automobile belonging to another. Articles 1304 and 1318 are not applicable because they require the burning of a house or other building, agricultural products, lumber, etc. Article 1350 is not appli- cable because of Section 2 of that article which provides: “Whenever the law provides a particular punishment for the wilful injury or destruction by a certain means, such as by burning, or whenever a particular punishment is provided for wilful injury or destruction of a certain type of property, such as fences, the provisions of this Act shall not be applicable.” Article 1404b is not applicable because that article requires a breaking in or entering of the automobile and an intent to commit a felony or theft. The facts that you have presented do not show a breaking or en- tering of the automobile or an intent to commit a felony or theft. Therefore, under the facts that you have stated, Article 1323 of the Texas Penal Code is the proper Article under which to file the above criminal offense of wilful burning of an automobile belongin@ to another. Hon. H. H. Wellborn, page 3 (WW-347) SUMMARY Article 1323 is the proper Article of the Texas Penal Code under which to prosecute the criminal of- fense of the wilful burning of an automobile ,belonging to another. Yours very truly, WILL WILSON Attorney General of Texas Richard B. Stone Assistant APPROVED: OPINION COMMITTEE: George P. Blackburn, Chairman B. H. Timmins, Jr, Mary K. Wall Milton Richardson REVIEWED FOR THE ATTORNEY GENERAL BY: W. V. Geppert