Untitled Texas Attorney General Opinion ( 1959 )

AURTINM.%'EXA~I
hfarch23, 1959
Honorable Jack Sardee opinion NO. ``-580
District Attorney
Third Judicial District Re: Is a 20 year old man criminally
Courthouse liable under Article 1558 of
Athena, Texas the Penal Code for disposing of
mortgaged cattle?
Dear Mr. Hardee:
You have asked us the following questions:
1. Is a 20 year old man crtiinally liable under Article 1558 of the
Penal Code for disposing of mortgaged cattle?
2. If he is not liable because he is a minor, does Section 3 of the
Probate Code remove that minor's disability when he marries, while he is
ktll under the age of 211
In Jones Y. State, 20 S.W. 578 (Tex.Crim.App. 1892)>+he Court states
that a minor cannot be held criminally responsible for selling chattels
mortgaged by him, since the sale is a disaffirmance of the mortgage and
the infant has a right to disaffirm a mortgage. The Penal Code (Present
Article 1558) has not been changed in respect to the crime involved since
the case was decided. In Acts 1929, 41st Leg., 2d C.S., p. 85, ch. 48, 51,
the law was modified to include taking mortgaged property out of the
county with fraudulent intent; this change does not affect the problem at
hand.
As can be seen from the Jones case, if the minor did not have a right
to avoid the mortgage, he would be guilty of a violation of Article 1558,
Penal Code.
In 1955 the new Probate Code, effective January 1, 1956, was adopted
and in Section 3(t) has a new definition of a minor:
“When used in this Code, unless otherwise apparent from
the content:
. . .
(t) 'Minors' are all persons under twenty-one years cd-age
who have never been married, except persons under that age
whose disabilities of minority have been removed generally,
except as to the right to vote, in accordance aith the
laws of this State.
L ^
Honorable Jack Hardee;Page 2, (WW'+ 5@0)',
I,
. . .
The Courts of this State have held that this definition is to he given
a broad and general application and is not to be restricted to proceedings
under the Probate Code. Therefore, when a boy under 21 marries he may be
sued as an adult. Pittman v. Time Securities, 301 S.W.2d 521 (Tex.Civ.App.
1957),Ward v. Iaq, 314 S.W.2d 381-383 (Tex.Civ.App. 1958).
There seems to be no question that where, after January 1, 1956, a
married male under 21 enters into a contract, he may be sued as an adult.
It follows also that he may be convicted of violation of Article 1558i
Penal Code, since he can no longer avoid the mortgage.
Where the contract was entered into prior to January 1, 1956, but pay-
ments or other acts of affirmance were made on the contract after January 1,
1956, the married minor came of age of January 1, 1956, see Pittman case,
page 525 supra, and his rights are governed accordingly. Whether a person
has in fact ratified a contract executed during his minority is a question
of fact for the jury. Miller v. McAden, 253 S.W. 901 (Tex.Civ.App. 1923).
SUMMARY
A 20 year old man who has never been L
married is not criminally liable under
Article 1558 of the Penal Code for dis-
posing of mortgaged property.
A 20 year old man, who has married, is
criminally liable for disposing of
mortgaged property, if the mortgage
was executed after marriage and on or
after January lst, 1956.
A 20 year old man, who has married, is
criminally liable for disposing of
mortgaged property, although the mort-
gage was executed while a single man,
or prior to January 1, 1956, if he in
fact ratified the mortgage contract
after marriage and on or after January
1, 1956.
Respectfully submitted,
WILL WILSON
Attorney General of Texas
By d?--+?‘ \
~, Cecil Cammack. Jr.
Assistant '
Honorable Jack Hardee, Page 3, (WW- 580 )
CC:aw
APPROVED:
OPINION COMMI!lTE:
Geo. P. Blackburn, Chairman
Leonard Passmore
C. Dean Davis
Henry G. Braswell
Marvin H. Brown, Jr.
Marvin Sentell
REVIEWJfDFCIRTHEATTORNFIGENH(AL
BY
W. V. Geppert