You have requested our opinion concerning whether there is a concealment under section 32.33 of the Penal Code where a debtor refurrea to deliver collateral upon demand of a secured party but does not harm or reduce the value of the collateral.

Section 32.33 provides in part: (b) A person who has signed a security agreement creating a secuiity intere8t in property or a mortgage or deed of trust creating a lien on property comaits an offense if, with intent to hinder enforce- ment of that interest or lien, he destroys, removes, conceals, encumbers, transfers, or otherwise harms or reduces the value of the property.

(c) For purposes of this section, a person is presumed to have intended to hinder enforceraent of the security interest or lien if, when any part of the debt secured by, the security interest or lien waa due, he failed: (1) to pay the part then due; and (2) if the secured party had made demand, to deliver possession of the secured property to the secured party.

p. 4002 *2 The Honorable Terence S. Weakly - page 2 (H-980) The Subsection (b) provides for two elements of the OffenSe- first is an intent to hinder enforcement of the lien: the second is to destroy, remove, conceal, encumber, transfer, or otherwise harm or reduce the value of the property. With respect ,to the second element, the mere failure to deliver possession'is clearly not within the definitions of destroy, remove, encumber, transfer, or otherwise harm or reduce the value of the property. You have asked whether such a failure is within the definition of "conceal.*

The intent of section 32.33 is apparently to. protect secured property for the benefit of the.creditor. The clause "otherwise ham or reduces the value of the property" implies that the forementioned acts also harm or reduce such value.. .Certainly the mere failure to deliver property generally would not reduce its value. Accordingly, we do not believe that such a failure would in itself constitute a concealment. We are further supported in thi5 view by subsection (c) whigh makes the failure to deliver a facet of the first element of the offense, an intent to-hinder enforce- ment of the lien. In our view a concealment'under aubaection (bt ;uuat entail some further act beyona mere failure to deliver, otherwise the entire aecona element of the offense woula,be 5upcrfluoua. See 53 Tex. Jur.Zd Statute8 S 165, and author- itierr cited thzin.

SUMYARY The mere refusal to deliver propexty to a secured party is not an offense under section 32.33 of the Penal Code: Very truly yours, A APPROVED:

Opinion'Committee

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