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   FVILL   WILSON
ATTORNEY      CmmlERAl.
                              December 28,    1962


       Honorable Shelby H. Blaydes    Opinion No. ~~-1516
       District Attorney
       Box 454                       Re:     Whether or not a complaint
       Fort Stockton, Texas                  in the nature of "Conver-
                                             sion by Eailee" can be filed
                                             against a purchaser under
       Dear Mr. Blaydes:                     a "Conditional Sale Agreement"
                You have requested an opinion from this office as to
       whether a complaint in the nature of "Conversion by Bailee"
       can be filed against a purchaser who has purchased certain
       merchandise from a seller under a "Conditional Sales Agree-
       ment". A copy of said agreement has been furnished this
       office by you,
                In addition, you have set out certain facts surround-
       ing the transaction upon which your request is based. They
       are as follows:
                        "On or about the 5th day of July, 1961,
                  Purchaser purchased from Seller One (1) Ad-
                  miral Stereo Phonograph for the sum of $220.00
                  and at such time purchaser executed a Conditional
                  Sale Agreement to Seller wherein Purchaser
                  agreed to the following terms and conditions;
                  Purchaser paid 20.00 cash down, leaving a
                  balance due of %200.00 and added $32.00 carry-
                  ing charges, leaving $232.00 balance due and
                  payable. Purchaser agreed to pay this amount
                  out in 23 equal monthly payments of $10.10
                  each, said payments commencing on August 5,
                  1961.    Purchaser made the payments until March
                  5, 1962, at which time Purchaser defaulted and
                  has not made any payments since. Some time
                  during the month of April the Purchaser moved
                  to Houston, Texas, taking the merchandise with
                  her and still has not made any payments."
                You have quoted Article 1429 of Vernon's Penal Code
       of Texas and asked whether a complaint in the nature of
       "Conversion by Hailee" can be filed under it for the fact
       situation you outlined. Article 1429 reads as follows:
Honorable Shelby H. Blaydes, Page 2   (~~-1516)



             "Any person having possession of per-
         sonal property of another by virtue of a
         contract of hiring or borrowing, or other
         bailment, who shall without the consent
          f th         fraudulently convert such
         $opeEtz??&is    own use with intent to
         deprive the owner of the value of the same,
         shall be guilty of theft, and shall be
         punished as for theft of like property."
         (Emphasis added)
         Under the facts you have outlined the "Conditional
Sales Contract", which is the subject of your ouestion, is in
legal effect a chattel mortgage. -Minnehoma Financial Company
v. Johnson,        Tex.       , 258 S.W.2d 78 (1953) . We
therefore mumsider      theraw applicable to chattel mort-,
gages in answering your question.
         Article 5489 of Vernon's Civil Statutes states:
             "All reservation of the title to or
         property in chattels, as security for the
         purchase money thereof, shall be held to
         be chattel mortgages, and shall, when
         possession is delivered to the vendee,
         be void as to creditors and bona fide
         purchasers, unless such reservations be
         in writing and registered as required
         of chattel mortgages. Nothing in this
         law shall be construed to contravene
         the landlord and tenant law."
         By virtue of the provisions of Article 5489 and the
holding of the Supreme Court in Minnehoma Financial Company
v. Johnson, supra, it is our opinion that the filing of a
complaint in the nature of "Conversion by B&lee" against
a purchaser under a "Conditional Sale Agreement" would not
be proper, and that Article 1429, Vernon's Penal Code, does
not apply as a contract of hiring or borrowing, or other
bailment is not involved.
                      SUMMARY
             The filing of a complaint in the nature
         of "Conversion by Bailee" against a purchaser
         under a "Conditional Sales Agreement".would
Honorable Shelby H. Blaydes, Page 3   (~~-1516)



          not be proper.
                             Respectfully,




NVS:nss
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
Scranton-Jone9
W. 0. Shultz
Cecil Rotsch
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore
