Case Information

*1 The Attorney General of Texas March 19, 1982 MARKWHITE

Attorney General

Mr. Sam Kelley, Commissioner opinion No. w-457 Consumer Credit Commission Supreme Court Building P. 0. Box 12546 P. 0. Box 2107 KC?: Construction Austin. TX. 7671 l- 2548 Austin, Texas 78768 5069 - 51.03A, V.T.C.S., 5121475-2501 denying pawnbroker's license Telex 9101674-1367 applicant convicted Telecopier 5121475.0266 crime involving moral 1607 Main St., Suite Dallas, ^{[21417424944]} TX. 75201-4709 ^[1400]

Dear Mr. Kelley: turpitude 4624 Alberta Ave.. Suite E, Paso. TX. 799052793 9151533-3484 This conviction robbery You advise 3A of in California the Texas Pawnshop Act, article is the only blemish on his that an in 1940 has applied individual who was convicted record. for a pawnshop 5069-51.01, You ask whether of attempted et seq.. license.

V.T.C.S., prevents you from granting him a license.

1220 Dallas Ave.. Suite 202

Houston, TX. 77002.6966 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. 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: (1) be of good moral character and not 4309 N. Tenth, Suite B have been convicted of or be under indictment McAllen. TX. 76501.1665 theft, fraud, forgery, or any 5121662-4547 involving moral turpitude.

200 Main Plaza. Suite 400 Nothing in the language of section 3A suggests that the statute San Antonio. TX. 76205-2797 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/ similar linguage in section 6 of article 320a-1, V.T.C.S.). Thus, the Affirmative Action Employer mere fact 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 three specific crimes: theft, fraud forgery. A conviction of attempted is not a (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 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, [citations omitted]. It has also or good morals. 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 [citations omitted]. term in general. The 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, and which shows a moral flagrant, or shameless, indifference to opinion of the good and respectable members of the community. [citations omitted].

See generally 62 Tex. Jur. 2d Witnesses 1271. 29.02 of the Texas Penal Code lists the elements of the

crime of robbery.

(a) A person commits an offense if, in the course of committing theft as defined in [section et. seq.] this code and with intent obtain or maintain control of the property, he: intentionally, knowingly, or (1) recklessly causes bodily injury to another; or intentionally knowingly, (2) or places

threatens another in fear inrminent bodily injury or death. An offense is a

6) felony of the second degree.

r Section of the Texas Penal Code deals with criminal attempt. 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 tends but fails to effect the commission of the offense intended.

. . . .

(d) An offense this 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. 211 of the California Penal Code provided (and still provides)

Robbery is the felonious taking of personal property in the possession of another, from his person immediate presence, and against his will, accomplished by means of force or fear.

"Attempted" robbery occurred where there was a soecific intent 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 "attempted" cri me): Cal. Penal Code §§663.

(West).

We believe Texas courts would treat the Texas offense attempted 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, offense is a third degree felony, and the elements discussed in Munis v. state, supra, are certainly present. Similarly, we believe 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 Mr. Sam Kelley

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 In our opinion, the word “must” is, in this context, requirements. 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

(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 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, 7(e) 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 In our opinion, article 5069-51.03A controls in any event, 4(a). because it is a specific statute which provides that an applicant a particular license must be denied license certain circumstances. As between neneral and specific statutes, the latter are uniform nly regarded as the best evidence 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 1, writ ref’d n.r.e.), and we believe 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.

. .

SUMMARY By virtue 5069-51.03A, V.T.C.S., an applicant who was convicted attempted in California in 1940 is not eligible 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