Case Information
*1 OFFICE OF THE ATPORNRt GENERAL OF TEXAS AUST3N .
GERALD C. EIANX
ATTORNES? GESERAL
Honorable George Ii. Sheppard
Comptroller oi’ Publti Acoounte
' Austin, Te.xs~ Opinion No. O-4158
Dear slra : Ret Whether person, firm or corporation
who engages In business of lendlng money throuzh the “bill of sale” aystkm is siibibjecf to proiloloni of .~ Subd. '13, Art. 7047, R.C.S., tit, .6146. R.C.S. and Art. 6148. R.&S.. and i%lated~question& -
This Is in answer to you?? letter of Harch 23, W&2,, I whereln .you request the oplnldn of this ,department In response to the following. questions: : : “1. 18 8 peison, ?Zrm Oti, corporation who _., in the business of’ lending money through the &gages ‘bill of sale’ system, sub ect to the provlslcins of i subdivision 13, Article 70 7, R.C.S., Article 6146, i
~: R.C.S., and Article 6148, R.C.S.?. For example, the
‘bill of sale’ system is used’as follows;
“IA, I who wishes to obtain. the. use of a certain sum OS money for a period of thtity (30) dayye, '. delivers some article of value. to *B’, who will pur- ,‘.
chase the ortlcle fOr~.an E~r&d amoi?nt. ‘A’ delivers : a ball of sale the artloIs ’ to IBl with the .verbal understand- that ‘A* will,have .the privilege of se- . . purchao%ng the same article on or ‘before thirty (30) ~. : " days, at a price equal to ten per. cent more than JA’
received for the article when sold it to ‘B’.
“2. Has the Comptroller of” Public Accounts the autholrlty, under Artlole 6148, RiC+Si~, .to Inspect ‘.
or examlne the books or records of’ a p@rson, firm or corporatZon, for~the pus?poso of determtilng whether or not such person, etc.,, Is en$aged in business as a pambroker, as defined by Articlo6146, R.W. a and therefore liable for,the occupation tax levlad by Sub-~ ~ divlslon 13* 7047, R.C.S.? ','
"2% Under’ what conditions or cfscuiistanuen * nay this right of, inspection bo lawfully exercised by _~ the Comptroller of Public Accounts? ,Iirey it be exercised :
In instance!5 where the .Comptrolldr, in his official dis- ca?etion, has rcaeonable grounds to believe, under the that, a p.erson, firm or ^ &$tendS.ng faCta and olrcum3t3noe3~ *2 Honorable George X. Sheppard, Page 2 -corn* G-13158
corporation 13 engaged In such buslncss, although such person, firm or corporation, dcnlen that such buslnese [13] be%ng pursued .._. _, . . . . _ and refuse3 access to the records?"
Subdivision 13, Article 7047, R.C.S., provldeo that an nrnual occupation tax of one hundred and fifty dollars shall be collecteC from every p3wnbroker.
Article 6146, R.C.S., defines a gownbroker as follows: 'A ~poxnbrolcer 1s one who pursues the buslneon of lending monoy upon Interest and reoolving upon deposit anypersonal property as security .for the payment of 3uch.
loan end interest.*
!Phe words "pawn“ and "pledge" mcen the s2rzz thing, 33 Tcx. Al?. 687. Under our statute to pawn or pledge propcrQ mean3 to &posit It ulth a oredltor to secure the oyment of a debt, WCC of SMth vs. Anderson, 27 S.W. 775, t Tex. Clv. Apn 18D1nh:&q on the books of a corporation*io th; tkt a transfer of dock. 3&1m payment of a loan nlth interest, tho*ugh 3uch transfer ~~33 absolute on lts.,r"acei ~3 a pI,edge and not a 3ale, the court sald:
"The character of the transaction between the parties 13 to be dctermlned by-their intention, znd it zstters not what languege~lsxsed, or what the Form or ‘iz txatPer was, If It na8 lnten~ed to secure the na - ment of money it m3t be construea as a pled?+
it necessary that the conolderatlon be a pre~e~l3tlng lndebtednes3; it Is aufflclent lf It be a present advanoe-
ment: (Italics oura)
The f&&s stated by you ungueatlonably present a debtor- ;rei;tor relatlonshlp as opposed to the relatlonshlp of vendor land'
ez 6; St i’ollo~ that under the law, a8 stated ln Smith v. Anderson, supra, a person, f%rm or CorpOratlon who engages 111 the business oi' lending money through,the"blll of sale" system a8 Illustrated by your examplo.13 &gaged ln the buolness HOP a pavanbroker a3 defined by Artlole 6146, R.&S. 6148, R.C.S., read8 as follows:
"I&h pawnbroker shall keep a well bound book, to be kept open for inspection in which shall register all his transactions [03] a broker at th3 tine the same occur3. Such register shall show:
“1. An aoourate desorlption of the artlcol pawned.
l?rora whom received.'
9. "3. The tl.me and the amount for which the artl-
cle pawned; Lt3 probable value and the rate of interest agreed upon.
"4. The final dl3posltlon made of such property,
and lf sold to whom sold and the amount which each articze was sold," *3 O-4158
Jionorable Qcorge Pi. Sheppard, Page 3 This article authorizes the Comptroller of Public Ac- counta, or any other Interested party to intpcct the books there- r-eqzlr-d to be kept. It will be noted, hovcver, t%t the provlsiox UT i-.‘zh Article 6148 apply only to pambrokers. zii31CGD he is e?GnZcd ~_ zr, the buclneas of a pambroker one is not ,‘equixd to keep such a 0~: of books, and unless he engaged in such buslneas, this article his boo!a. vi? nust annoxer ~VCC no omthe prlvilcge of lnsgoctlii Gour cuestlons 2 and 2a thuat As a condition gecedent. to lnc~ectlon ‘;f rhd books required to beg kept by Artlclc’. 6148, R.C.S., it mzot be establlnhod that the perroon whose books are to be inspected lo engaged irr the buslmss of a pawnbroker, and Is roqulred by such article to her, said books. It fellows that auoh books ., could not be cxazxined w&r the authoFitv of said article for the ~urw3e of dc?temSnl~~ wdther he isengqed In the business of a p&&roker.
Yours very truly
,. . _.
‘. By &T?ovlor Roberts
i?owlor Robeots Assistant
fEi:eJ:wo
APPROVRD APRlL 8, 15~42 ,, ‘,:
0/ &over Sellers
FIRST ASSISTANT .~ ,- AT’%ZX3! CiENERi%
Apprwed Opinion Connaietee Ry s/lWR Chafman