J     --




                                      AUSTIN    1,.   TEXAH

    WILL    WILSON
ATFORNEYGIIENEPAI.
                                               May 14,        1957.


           Honorable Frank D. McCown,                     Opinion     No. WW-80
           District  Attorney,
           69th Judicial    District,                     Re:    Constructfon      of Condit-
           316 Denrock Avenue,                                   ional Sales Contract        and
           Dalhart,  Texas.                                      partfcularly      in regard
                                                                 to whether or not such
                                                                 is In the nature of a
                                                                 Chattel    Mortgage acd
           Dear Mr. McCown:                                      related    questions.

                      We arc fn receipt  of your opinron request   and the
           very helpful   brief  which you fomarded   to us in connect!.on
           therewfth.     We quote from your  request  as fallows:

                                "A Seller     sells  a washing maehPr;e,
                         delivers     posse,ssion   to the vendee and takes
                         a conditional       sales  contract   whereby the
                         seller    retafns    the title    to the property
                         until    the entire     unpaid balance     fs paid.    It
                         is entered     into as a two party agreement
                         and does not purport to be a chattel             mort-
                         gage D     The vecd2e t&n sells         tkie property
                         or removes LL Pr:w the State :jr C%n:ty with
                         intent    to de?::ac?."

                         You pWpound8d      the following         questions    for   our   ccii:-
            sideration     and opfnion:

                         "1 D Has the vendee violated   the provfsions
                              of Artfole   1558 P. C. on fraudulent    dls-
                              position   of mortgaged property?

                         "2 *   If he is not guilty     of fraudulent   dis-
                                posLtlon   of mortgaged property,     is he
                                guilty   of the offense   of conversion    by
                                bailee?

                         “3.    If he is not guilty   of the offenses            set
                                out In 1 and 2 above,   is he guilty            of the
                                crime of theft?

                         “4 *   If he is not. guilty  of azy          of the offenses
                                set out. above,  is he guilt7          of any offense?'
Honorable    Prank D, M&own,              Page 2                 WI?-80



          Article    1558 of the Texas Penal Code provider       that
If any person has given,      or shall   give any mortgage,   deed of
trust or other lien in writing,        upon any personal   or movable
property  and thereafter     removes the same, or any part there-
of, out of the State,     OF out of the County in which it was
located  at the time of the creation        of the lien* or other-
wise disposea     of same with intent    to defraud the person
having such lien,     he shall be confined     In the peaiten%iarg
for not less than two, nor more than five years D

             The eontract  fn question   here is captioned                “Condit-
ional    Sales Contract ” a   It provides    fn part:

                  “Title  to safd goods shall  remain In
            the Seller   and shall not pass to the Buyer
            until  all amounts owing hereunder   have been
            pafd fn cash by the Buyer.’

The Instrument  hereunder  considered           Is    properly    construed      as
a Conditional  Sales Contract a

           You state    in substance    %ha% the proposed defendant
purchased   the personal     property  under a en~:!,df%fonal sales
contract,   wherein ft was prrvfded       that %he tftle   to the prop-
erty was retained     by %he vendor until     the safd property     was
paid for fn full;       that before   ft was fully   paid for,   the
purchaser   fraudulently    removed the property     from the county,
or fraudulently     removed 1% from the state,     OF frauduSen%ly
sold ft,

            A~tloYe 5484, Revised Clvll     S%atutes,  1925, as
amended,    provfdes   that any reservation   of title  on property
in chattels     as security  for the purchase money, “shall     be
held to be chat&e1 mor%gages ew

            Itis well settled    in Texae that all attempted      re-
servations   of t’ftle  in a salss  note or contract    simply make
the fnatrumant a ahat%el mortgage,       and the status    of the par-
ties is that of mortgagor and mortga ee,         Peterafme    Incuba -
tor Co D vs D BUM      239 S .We 2d 416> 7Tex, Civ OApp., 1951)



381 (Tex,    Cfv.App,   p 1943)   error    refused,     want of    merit O
             In our opinion,    the case oi Williams  v. State,   118
Tex.    Cr, 386, (Sg3S),     39 S,W,2d 79, held only that a -condft-
fonal    sales eon%ract    “is not, OR its face,   a chattel  aortgag=.
-



    Honorable       Frank D, MCCOWQ,            Page 3                      ww-80



    Hence, there was a variance        between the instrument        described
    in the indictment           a mortgagg      and that received       In evi-
    dence."      The  Coup     we belfdve,   does  not  hold    that   one  who
    putichases property      Ander a conditional    sales    contract,     by
    the terms of which the title         to the goods sold remained in
    the vendor until      the entire   unpaid balance     fs paid, and who
    fraudulently     disposes   of it is not guflty     of Fraudulent       dis-
    position    of mortgaged property      under the provisions        of
    Article   1558, Texas Penal Code.

                 On the basis of the foregoing    authorftfes,    your
    first    questfon   la answered In the affirmative.        It is,
                   unnecessary   to consider questi.ons   Nos, 2, 3, and
    Pef
     0       Ope9

                                          SUHMARY

                          The sale OP removal of personal          property
                   from the County in which purchased under a
                   condftfonal    sales   contract,     wherein title      to
                   such property     sold Femafns fn the vendor until
                   the entfre    unpaid balance      is Pfquidated,      with
                   fntent   to defraud,    consti.tutes    a vlolatfon      of
                   the ppov%sions     of Article     1558 OS the Texas
                   Penal Code relating       to fraudulent     dfsposltfon
                   OS mortgage property,

                                               Very        truly   yours,

                                               WILL WILSON
                                               Attorney General


                                                By    5.       k    -,
                                                     B. Ii. Tlmmfns,          Jr.
    BRTzpr"srh                                       Assistant

    APPROVED:
    OPINION COMMITTEE
    II, Grady Chandler, Chairman
    Byron Fullerton
    Milton Richardson
    Wagland C, Rfvers

    REVIEWEDFOR THE ATTORNEYGENERAL

    By:     Gee,    P. Blackburn
