                                            The Attorney                    General of Texas
                                                                    November 2, 1983
    JIM MATTOX
    Attorney General



    supreme Court Bullding                Mr. Sam Kelley                                 Opinion No. m-85
    P.O.BOX 12546                         COUl6LiSSiOl-lS~
    Aust,n,    TX. 78711. 2546            Consumer Credit Commission                     lb: Are provisions of Corpus
    5121475~2501                          1011 San Jacinto Boulevard                     Christi city code regulating
    Telex    9101874-1367
                                          Austin, Texas   78768                          pawnshops incousistent with
    Telecopier     5121475-0266
                                                                                         section 10(b) of article 5069,
                                                                                         V.T.C.S.
    714 Jackson.suite700
    Dallas.TX. 75202.4506                 Dear Mr. Kelley:
    2141742-6944

                                               You have requested our opinion as to whether the Corpus Christi
    4624 AlbertaAve..Suite160             Code of Ordinances [hereinafter “the code”] is in conflict with or is
    El Paso.   TX.         79905.2793     inconsistent with the Texas Pawnshop Act, article 5069-51.01 et seq.,
    9151533.3464                          V.T.C.S., [hereinafter “the act”]. You inquire with respect to two
P
                                          provisions of the code as it regulates the pawnbroker business in
    1001   Texas.         Suite   700
                                          Corpus Christi.
    HOUS,O".TX. 77002-3111
    7131223-5666                               You first direct our attention to two provisions of the act.
                                          Article 5069-51.10(b) lists the information that a pledgor must give
                                          to the pawnbroker and which must appear on a pawn ticket:
    606 Broadway,            Stlite 312
    Lubbock,        TX.     79401.3479
    6061747-5236                                         The pawnbroker, at the time the pawn trans-
                                                      action is entered, shall deliver to the pledgor a
                                                      memorandum or ticket on which shall be clearly set
    4309 N. Tenth. Suite B                            forth the following:
    McAllen. TX. 76501-1665
    5121662-4547
                                                                .   .   .   .

    200 Main     Plaza. Suite 400                                (b) The name and address of the pledger
    San Antonio.      TX. 76205.2797
                                                             and   the pledgor’s description or       the
    5121225-4191
                                                             distinctive number from pledgor’s driver’s
                                                             license or military identification . . . .


                                          V.T.C.S. art. 5069, §5l.lO(b).

                                               Article 5069-51.16(e) specifies when and how a pledgor may redeem
                                          property from a pawnbroker:

                                                      A pawnbroker shall not:




                                                                                p. 358
Mr.   Sam Kelley - Page 2 (JM-85)




              .   .   .   .

              (e) Fail to return pledged goods to a pledgor
           upon payment of the full amount due the pawnbroker
           on the pawn transaction.      In the event such
           pledged goods are lost or damaged while in the
           possession of the pawnbroker it shall be the
           responsibility of the pawnbroker to replace the
           lost or damaged goods with like kind(s) of
           merchandise. All such replacements are subject to
           the approval or rejection of the Commissioner.

     You then direct our attention to two provisions of the code. As
does article 5069-51.10(b) of the act, section 37-2 of the code lists
information that a pledgor must give to the pawnbroker; this
information, however, is for the pawnbroker's own records and not for
printing on the pawn ticket.

              It shall be the duty of every pawnbroker or
           secondhand dealer in the city, whether such
           pawnbroker or secondhand dealer is a resident or
           itinerant business, to keep a book, in a form
           approved by the chief of police, in which shall be
           legibly written in ink at the time of each loan or
           purchase an accurate account and description in
           the English language of all secondhand items
           pawned, pledged or purchased, the amount of money
           loaned thereon, or paid therefor, the date of
           pledging or purchasing of the same, the rate of
           interest to be paid on such loan, the name,
           residence address and telephone number of the
           person pawning, pledging or selling the items and
           an accurate description, including proof of
           identity, of the person pawning, pledging, or
           selling the items.     A numbered identification
           shall be required for proof of identity and such
           numbered identification shall have a photograph
           for verification except where the pawnbroker or
           secondhand dealer has personal knowledge of the
           identity of the person pawning, pledging or
           selling the items. No entry made in such book
           shall be erased, obliterated or defaced. All such
           records shall be kept on file by the pawnbroker or
           secondhand dealer for a period of two (2) years.
           (Ord.No. 16140%. 61, 4-1-81).

As does article 5069-51.16(e) of the act, section 37-4 of the code
deals with the pledger's redemption of personal property from the
pawnbroker.




                                p. 359
Mr.   Sam Kelley - Page 3 (J&85)




              No personal property received by a pawnbroker
           or secondhand dealer on deposit or pledge or by
           purchase shall be permitted to be redeemed or
           removed from the place of business of such
           pawnbroker or secondhand dealer or from the City
           of Corpus Christi for a period of seventy-two (72)
           hours after the close of business on the date such
           item shall have been received by such pawnbroker
           or secondhand dealer, nor shall any such property
           be altered in any way or have any identifying
           markings, names or numbers altered or obliterated
           during such time.      Where any pawnbroker or
           secondhand dealer finds that such period will work
           a hardship or constitute an undue burden, he may
           so notify the chief of police or his designated
           representative in writing of his need to act and
           that the item or items are available for
           inspection. Upon inspection and release of the
           item or items by an officer of the police division
           or the lapse of twelve (12) hours from the receipt
           by the chief of police or his designated
           representative of the required notification, the
           seventy-two-hour waiting period shall be deemed to
           have been satisfied.      (Ord. No. 16140%. 51,
           4-1-81; Ord. No. 17355, 51, 11-10-82).

     Your inquiry concerns the relative authority of the code and the
act with respect to the pawnbroker's business in the city of Corpus
Christi. In answering your question, we note that a home rule city
such as Corpus Christi derives its powers not from the legislature but
from the Texas Constitution.       Article XI, section 5, of the
constitution permits a city to enact ordinances which are neither
inconsistent with nor in conflict with the constitution or the general
statutes of the state of Texas. Tex . Const. art. XI, 05. Article
1165, V.T.C.S., contains a similar limitation on a home rule city's
powers; see also City of Beaumont v. Jones, 560 S.W.2d 710 (Tex. Civ.
APP. - Beaumont 1977, writ ref'd n.r.e.). However, we also note that

           [tlhe entry of the state into a field of
           legislation . . . does not automatically preempt
           that field from city regulation; local regulation,
           ancillary to and in harmony with the general scope
           and purpose of the state enactment, is acceptable.

City of Brookside Village v. Comeau, 633 S.W.2d 790, 796 (Tex. 1982).

     Our scrutiny of the questioned code provisions should be made in
light of the expressed purposes of the Texas Pawnshop Act as stated in
article 5069-51.018 below:




                                   p. 360
Mr. Sam Kelley - Page 4   (JM-85)




         The making of pawn loans and the acquisition and
         disposition of tangible personal property by and
         through pawnshops vitally affects the general
         economy of this state and the public interest and
         welfare of its citizens.      To prevent frauds,
         unfair practices, discriminations, impositions,
         and abuses of the citizens of the state, it is the
         policy of this state and the purpose of the Texas
         Pawnshop Act to:

             (1) exercise the state's police power to
          ensure a sound system of making pawn loans and
          acquiring and disposing of tangible personal
          property by and through pawnshops and to prevent
          unlawful property transactions, particularly in
          stolen property, through licensing and regulating
          pawnbrokers and certain persons employed by or in
          pawnshops;

             (2) provide for licensing fees, investigation
          fees, and   minimum   capital requirements of
          licensees;

             (3) ensure financial responsibility to     the
          state and the public;

              (4) ensure compliance with federal, state, and
          local laws, rules, regulations, and ordinances;
          and

             (5) assist local governments in the exercise
          of their police power.

     It is clear by subsections 4 and 5 of article 5069-51.01A that
the   legislature did not      intend   to preempt     the  field of
pawnshop/pawnbroker regulation. Accordingly, following the ruling in
City of Brookside Village, Ed,     if the questioned provisions of the
Corpus Christ1 Code of Ordinances are ancillary to and in harmony with
the general scope and stated purposes of the Texas Pawnshop Act, those
provisions of the code are permissible.

     In our opinion, section 37-2 of the Corpus Christ1 Code of
Ordinances is permissible. Section 37-2 is strictly a recordkeeping
requirement which applies to both pawnbrokers and secondhand dealers
in the city of Corpus Christi. It is our opinion that this section of
the code does not conflict with but merely elaborates on the rather
vague recordkeeping requirements provided in article 5060-51.09 of the
Texas Pawnshop Act. This section of the act requires only that




                               p. 361
c   .




        Mr. Sam Kelley - Page 5   (~~-85)




                  each licensee shall~keep, consistent with accepted
                  accounting practices, adequate books and records
                  relating   to   the   licensee's P=n      transac-
                  tions . . . .

        V.T.C.S. art. 5069-51.09. Section 37-2 of the code goes further and
        specifies the particular information which must appear in the records
        of pawnbrokers and secondhand dealers in the city of Corpus Christi.

             It is important to note that there is more than one purpose in
        requiring identification in a pawn transaction in keeping with the
        express purposes of the Pawnshop Act. Identification may be required
        to ensure that the proper person receives the pawned goods upon
        redemption -- "to ensure a sound system of making pawn loans and
        acquiring and disposing of tangible personal property." Further,
        identification may be required to assist law enforcement authorities
        in locating a person who has pawned stolen property or to hamper
        thieves in the disposition of stolen goods -- "to prevent unlawful
        property transaction, particularly in stolen property."      Article
        5069-51.10(b) of the act effectuates the first purpose, and section
        37-2 of the code the second. They are neither inconsistent nor
        conflicting, and the code provision is in harmony with and promotes
        the purposes of the act.

             Your question to us specifically addresses the possibility of a
        conflict between section 37-2 of the code and article 5069-51.10(b) of
        the act. Although both sections require that a pledgor give certain
        information about himself to the pawnbroker, the code is concerned
        with the information that must appear in the pawnbroker's own records,
        while the act is concerned with the information that must appear on
        the pawn ticket. Since the two sections regulate two different areas
        -- pawnbroker records and pawn tickets -- there is no direct conflict;
        further, since the two sections require very similar information --
        identity of the pledgor and various proofs of this identity -- there
        is no inconsistency.

             In our opinion, section 37-4 of the Corpus Christ1 Code of
        Ordinances conflicts with article 5069-51.16(e) of the Texas Pawnshop
        Act, and the code provision is thereby unenforceable. Section 37-4 of
        the code states that

                  [n]o personal property received by a pawnbroker or
                  secondhand dealer on deposit or pledge or by
                  purchase shall be permitted to be redeemed or
                  removed from the place of business of such
                  pawnbroker or secondhand dealer or from the city
                  of Corpus Christ1 for a period of seventy-two (72)
                  hours after the close of business on the date such




                                        p. 362
                                        ..



Mr. Sam Kelley - Page 6   (JM-85)




          item shall have been received by such pawnbroker
          or secondhand dealer . . . .

Article 5069-51.16(c) of the act clearly prohibits the pawnbroker from
failing "to return pledged goods to the pledgor upon payment of the
full amount due the pawnbroker . . . ." Section 37-4 of the code,
insofar as it applies to pawnbrokers and pawn traqactions, clearly
conflicts with article 5069-51.16(e) of the act since the former
disallows redemption by the pledgor for 72 hours even if the pledgor
is willing to repay the full amount of his pawn loan.

                             SUMMARY

            Section 37-2 of the Corpus Christ1 Code of
         Ordinances does not conflict the Texas Pawnshop
         Act. Section 37-4 of the Corpus Christ1 Code of
         Ordinances does conflict with the Texas Pawnshop
         Act.




                                      LILA% Very truly your



                                            JIM     MATTOX
                                            Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Jon Bible
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton




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