                             “8uJnmX   ml. -n%xuA#

  FVILL    WILSON.
*TToxcNEYGENEIuL’
                            IJovcmbcr21.>~1962

       Iion.;:lacl,:
                 :::aljace             Opinion m.:ib78
       District Attorney
       3rd Judicial District           EC :   titlethor
                                                      the Shoplifting Act,
       Athens, Texas                          Article'l4?6e, V.P.C., re-
                                              peals that portion of Arti-
                                              cle 1426c, V.P.C., relating
                                              to edible meats; whether
                                              conviction.for misdemeanor
                                              theft constitutes'grounds
       Dear Sir:                              for removal from'office.
            You have requested an opinion on whether.the~Shoplift-
       ing Statute, Article 1436e; Vernon's Penal Code, repeals
       that portion of Article 1426c, Vernon's Penal Code,~relating
       to~edible~meats.
            The relevant portions of the statutes involved are as
       follows:
       firticle14x6?,.V.P.C.;:Shoplifting:.          ' -'
                   "Section 1. Any person while legally'in
              a retail business establishment as an invitee, ~.
              or licensee who removes from its place,~goods,
              edible meat or other corporeal personal pro-
              perty of any kind or character under the value
              of Fifty Dollars ($50.00) kept, stored or dis-,
              played for sale -fliththe .&ntent.'to~.draudulently.
              take and to deprive the owner of the value of    -Lo
              the same.and to,appropriate the same to the use
              and benefit of-the person takingis guilty Of
              shoplifting, Altering.of label or marking on
             ,goods, edible meat or other corporeal personal
              proper~tyor transferring same from onecontainer
              to anothrr'rrithintent to defraud the .owner~
              also ~constitutes the crinc ofshoplifting.:'   ,.
                            6. All ~la\iis.:a,nd-'~par'ts
                   !!,Section~                     of iau;:in-,
              consistent~or conflictin,g;iith':this
                                                 ~.L\ct,
                                                      ibe
              hereby'e:<presslyrepealed-~
IIon.Mack !!allace,Page 2   (~~-1478)


          "Section 7. Where property Is obtained
     in such manner that the acquisition thereof
     constitutes both shoplifting and some other
     offense, the party thus offending shall be
     amenable to prosecution at the state's elec-
     tion for shoplifting or for such other of-
     fense as may have been committed by him."
Article 1410, V.P,C., Theft defined:
          "'Theft' is the fraudulent taking of
     corporeal personal property belonging to
     another from his possession, or from the
     possession of some person holding the same
     for him, without his consent, with intent
     to deprive the owner of the value of the
     same, and to appropriate it to the use or
     benefit of the person taking."
Article 1426c, V.P.C., stealing wool, mohair, or edible meat
a felony:
          "Whoever shall steal any wool .ormohair
     or edible meat, shalmn     conviction, be
     guilty of a felony, and shall be confined in
     the penitentiary for not more than ten (10)
     years, or shall be confined in jail for not
     more than two (2) years, or shall be fined
     not more than Two Hundred Dollars ($200), or
     be punished by both such fine and imprison-
     ment in Jail." (Emphasis added)
     It is first important to note that Article 1426~ is merely
a specific penalty provision of the ordinary theft statute,
Article 1410. By virtue of the enactment of Article 1426c,
the Legislature has provided that regardless of the value, the
theft of edible meat is a felony.
     An examination of Article 1436e and Article 1410 reveals
a difference in the essential elements of each offense. First,
and most importantly, the Shoplifting Statute does not require
the element of want of consent essential to a prosecution un-
der ordinary theft. Further, the Shoplifting Statute requires
that the person be on the retail business premises legally.
Obviously no such element is required under ordinary theft.
                          .


!ivn   .   Kack !?!allace,
                         Page 3   (~~-1478)



     It is also observed that the shoplifting.statute has
recently been construed by the Court of Criminal Appeals.
Xhosc cases denote that the statute is constitutional when
attacked on the grounds that there is no element of want
of consent, or the words "steal" or "stolen" necessary
un?er Article 1410. Sullivan v. Stat;,Fi3:iS.W.2d 168;
Henderson v. State, No. 34,808'-*.          -    (not yet
reported).
     It is also important to note that while the Shoplift-
ing Statute has been codified under Title 17, Chapter 8,
there is nothing in the Act to show that the~legislaturk
chose or directed that the Act appear there rather than
elsewhere in the Penal Code.
     Therefore, in view of the fact that shoplifting re-
quires no element of want of consent but does require that
the person be on the retail business establishment pre-
nises legally, no conflict is perceived which would operate
to repeal Article 1426~ relating to iediblemeat as the
Shoplifting Statute has been construed to be an enactment
by the Legislature of a particular offense separate and
distinct from ordinary theft. Sullivan v. State, supra.
     There being no conflict which would impair either
statute's validity, the clear meaning of Section 7 would
apply and the State has the right of election between~
offenses in a proper case.
     You have also inquired if a conviction for misdemeanor
theft against a Sheriff constitutes official misconduct in
office which would work an immediate removal from office.
           Article 5968, V.A.C.S., provides:
                "All convictions by a petit jury of any
           county officers for any,felony, or for any
           misdemeanor involving official misconduct,
           shall work an immediate removal from office
           of the officer so convicted. Each such
           judgment of conviction shall embody within
           it an order removing such officer."
                                                               -   .




Hon. Mack Wallace, Page 4   (~~-1478)


     Article 5973, V.A.C.S., provides:
          "By 'official misconduct,t as used herein
     with reference to county officers, is meant
     any unlawful behavior in relation to the duties
     of his office, wilful in its character, of any
     officer intrusted i&any manner with the ad-
     ministration of justice, or the execution of
     the law; and includes any wilful or corrupt
     failure, refusal or neglect of an officer to
     perform any duty enjoined on him by law."
     It is apparent from these articles that in order for
misdemeanor theft to constitute official misconduct, it must
have been committed under some color of office. The deter-
mination of whether or not ,such theft was committed in re-
lation to the duties of office must, of course, be made from
the facts of each particular case.
                     SUMMARY
          Article 1436e does not repeal that por-
     tion of Article 1426~ relating to edible meats.
          In order for a conviction for misdemeanor
     theft to constitute grounds for removal from
     office, such theft must amount to official mis-
     conduct.
                            Sincerely,
                            WILL WILSON
                            Attorney General of Texas



                            Assistant Atto
PP:nss
-   -




        Hon. Mack Wallace, Page 5   (~~-1478)



        APPROVED:
        OPINION COMMITTEE:
        W. V. Geppert, Chairman
        Norman V. Suarez
        Ben Harrison
        Pat Bailey
        Cecil Rotsc~h
        REVIEWED FOR THE ATTORNEY GENERAL
        BY: Leonard Passmore
