           TIXE~~~~~ORNEY                       GENERAL
                             OFTEXAS




Hon. H. H. Wellborn                         Opinion No. WW-347
County Attorney
Rusk County                             Re:      Wilfulaurning     of an automo-
Henderson,  Texas                                bile belonging   to another.

Dear Mr.   Wellborn:

             You have requested an opinion as to the proper article of
the Texas Penal Code under which to prosecute the criminal offense of
the wilful burning of an automobile belonging to another.

             Articles   1304 of the Penal    Code provides:

             ‘I ‘Arson’ is the yilful burning     of any house included
     within the meaning of the succeeding          article of this chap-
     ter . ”

            Article     1318 of the Penal    Code provides:

            “Whoever   shall wilfully burn any building not a house
     as defined in the preceding chapter, or shall wilfully burn
     any stack of.corn, hay, fodder, grain, or flax, or any pile of
     boards, lumber, or wood, or any fence or other inclosure,
     the property of another, shall be confined in the penitentiary
     not less than two nor more than five years, or be fined not
     exceeding two thousand dollars.”

            Article     1323 of the Penal    Code provides:

            “Whoever wilfully burns any personal, property belong-
     ing to another, the punishment for which is not otherwise pro-
     vided for in this chapter, shall be fi.ned not exceeding,two thou-
     sand dollars.”

            Article     1350 of the Penal    Code provides:

           ‘I( 1) It shall be unlawful for any person to wilfully in-
     jure or destroy, or attempt to injure or destroy, any prop-
     erty belonging to another, of any kind whatsoever,    v&hout
Hon. H. H. Wellborn.                page 2 (WW-347)




      the c.onsent of the owner and lienholder,                 if any, there-
      on.

             “(2) Whenever the law provides a particular     pun-
      ishment for the wilful injury or destruction   by a certain
      means, such as by burning, or whenever a particular
      punishment is provided for wilful injury or destruction
      of a certain type of property,  such as fences, the pro-
      visions of this Act shall not be applicable.

             II               II
                  .   .   .




             Article               1404b of the Penal   Code provides:

             “Section 1. Any person who breaks into or enters
      a vehicle with the intent of committing   a felony or the
      crime of theft shall be guilty of a felony and upon con-
      viction thereof shall be confined in the State penitentiary
      for a term of not more than three (3) years.




              It is our opinion that Article 1323 is the proper article of
the Penal Code under which to prosecute the offense of the wilfulburn-
ing of an automobile belonging to another.     Articles  1304 and 1318 are
not applicable because they require the burning of a house or other
building, agricultural   products, lumber, etc. Article    1350 is not appli-
cable because of Section 2 of that article which provides:

             “Whenever the law provides a particular      punishment
      for the wilful injury or destruction by a certain means,
      such as by burning, or whenever a particular       punishment
      is provided for wilful injury or destruction    of a certain
      type of property,   such as fences, the provisions   of this
      Act shall not be applicable.”

Article  1404b is not applicable because that article requires  a breaking
in or entering of the automobile and an intent to commit a felony or
theft.  The facts that you have presented do not show a breaking or en-
tering of the automobile   or an intent to commit a felony or theft.

            Therefore,  under the facts that you have stated, Article 1323
of the Texas Penal Code is the proper Article under which to file the above
criminal offense of wilful burning of an automobile belongin@ to another.
Hon.   H. H. Wellborn,   page 3 (WW-347)




                                 SUMMARY

             Article  1323 is the proper Article of the Texas
       Penal Code under which to prosecute the criminal of-
       fense of the wilful burning of an automobile ,belonging
       to another.

                                       Yours    very truly,

                                       WILL WILSON
                                       Attorney General       of Texas




                                               Richard B. Stone
                                                 Assistant


APPROVED:

OPINION    COMMITTEE:

George P. Blackburn,     Chairman
B. H. Timmins,   Jr,
Mary K. Wall
Milton Richardson

REVIEWED   FOR THE ATTORNEY           GENERAL
BY:  W. V. Geppert
