                                            The Attorney General of Texas
                                                                  March 19,    1982

MARKWHITE
Attorney General

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

                                                 You advise     that an individual   who was convicted         of attempted
4624 Alberta        Ave.. Suite     160
                                          robbery   in California      in 1940 has applied      for  a pawnshop license.
E, Paso. TX.        799052793
                                          This conviction      is the only blemish   on his record.       You ask whether
9151533-3484
                                          section   3A of the Texas Pawnshop Act,       article     5069-51.01,    et seq..
                                          V.T.C.S.,   prevents    you from granting him a license.
1220   Dallas      Ave..   Suite   202
Houston,    TX.      77002.6966                 Section   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.    It provides     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:

4309   N. Tenth,       Suite   B                                    (1)    be of good moral character    and not
McAllen.     TX.     76501.1665                              have been convicted      of or be under indictment
5121662-4547                                                 for    theft,    fraud,    forgery, or   any crime
                                                             involving     moral turpitude.
200 Main Plaza. Suite 400
San Antonio.  TX. 76205-2797                     Nothing   in the language        of section     3A suggests      that the statute
5121225.4191                              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/
Affirmative       Action     Employer
                                          similar   linguage      in section    6 of article     320a-1,   V.T.C.S.).      Thus, the
                                          mere fact      that     this   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  of three       specific     crimes:        theft,
                                          fraud     or forgery.       A conviction   of     attempted      robbery     is     not    a
Mr. Sam Kelley      - Page 2              (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
crime 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,
             or good morals.          [citations     omitted].        It has also
             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
             in    general.         [citations        omitted].          The     term
             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,
             flagrant,      or shameless,         and which shows a moral
             indifference        to     the    opinion     of    the     good      and
             respectable      members of the community.                 [citations
             omitted].

See generally      62 Tex.         Jur.     2d Witnesses       1271.

        Section  29.02           of the Texas Penal           Code lists        the   elements   of   the
crime    of robbery.             It provides that:

                      (a)  A person commits an offense       if, in the
             course     of committing  theft    as defined  in [section
             31.01     et.  seq.]  of this   code and with intent       to
             obtain     or maintain control    of the property,   he:

                             (1)            intentionally,           knowingly,     or
                      recklessly           causes    bodily     injury   to another;
                      or

                             (2)     intentionally         or                   knowingly,
                      threatens    or    places     another                in     fear     of
                      inrminent bodily    injury   or death.

                      6)           An offense   under          this    section         is   a
             felony         of    the second degree.
    Mr. Sam Kelley       - Page 3            (MW-457)
r




          Section    15.01   of    the Texas   Penal Code deals                       with    criminal
    attempt.     It provides    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             that
                  tends but fails        to effect  the commission     of the
                  offense     intended.

                         . . . .

                         (d)         An offense  under    this    section       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.
    Section   211 of the California     Penal Code provided     (and still provides)
    that:

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

    "Attempted"      robbery   occurred    where there    was a soecific    intent  to
    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    of "attempted"     cri me):  Cal.  Penal Code §§663.    664
    (West).

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




                                                    p.   1589
Mr. Sam    Kelley     - Page 4        (MW-457)




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

                       (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    to
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,    section     7(e)    of article      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
 4(a).       In our opinion,           article    5069-51.03A         controls      in any event,
 because      it is a specific         statute    which provides         that an applicant          for
 a particular           license     must be denied            that     license      under     certain
 circumstances.            As between neneral        and specific          statutes,      the latter
 are    uniform nly regarded          as the best          evidence      of 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     197 1, writ     ref’d     n.r.e.),       and we believe         the
 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.




                                                p.   1590
..
     Mr. Sam Kelley    - Page 5       (MW-457)
        8




                                          SUMMARY

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




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