                       April 14, 1977




The Honorable Terence S. Weakly         Opinion Wo. Ii-980
Kleberg County Attorney
Ringsvilla, Texas                       Re: Whether failure to
                                        deliver collateral is an
                                        offense under section
                                        32.33 of the Penal Code.

Dear Mr. Weakly:
     You have requested our opinion concerning whether there
is a concealment under section 32.33 of the Penal Code where
a debtor refurreato deliver collateral upon demand of a
secured party but does not harm or reduce the value of the
collateral.

     Section 32.33    provides in part:
              (b) A person who has signed a security
          agreement creating a secuiity intere8t in
          property or a mortgage or deed of trust
          creating a lien on property comaits an
          offense if, with intent to hinder enforce-
          ment of that interest or lien, he destroys,
          removes, conceals, encumbers, transfers,  or
          otherwise harms or reduces the value of the
          property.

             (c) For purposes of this section, a
          person is presumed to have intended to hinder
          enforceraent of the security interest or lien
          if, when any part of the debt secured by, the
          security interest or lien waa due, he failed:
                (1) to pay the part then due; and
                (2) if the secured party had made demand,
                to deliver possession of the secured
                property to the secured party.




                             p. 4002
The Honorable Terence S. Weakly - page 2     (H-980)



Subsection (b) provides for two elements of the OffenSe-   The
first is an intent to hinder enforcement of the lien: the
second is to destroy, remove, conceal, encumber, transfer,
or otherwise harm or reduce the value of the property. With
respect ,to the second element, the mere failure to deliver
possession'is clearly not within the definitions of destroy,
remove, encumber, transfer, or otherwise harm or reduce the
value of the property. You have asked whether such a failure
is within the definition of "conceal.*

     The intent of section 32.33 is apparently to.protect
secured property for the benefit of the.creditor. The
clause "otherwise ham    or reduces the value of the property"
implies that the forementioned acts also harm or reduce
such value.. .Certainly the mere failure to deliver property
generally would not reduce its value.   Accordingly, we do
not believe that such a failure would in itself constitute
a concealment. We are further supported in thi5 view by
subsection (c) whigh makes the failure to deliver a facet of
the first element of the offense, an intent to-hinder enforce-
ment of the lien. In our view a concealment'under aubaection
(bt ;uuat entail some further act beyona mere failure to deliver,
otherwise the entire aecona element of the offense woula,be
5upcrfluoua. See 53 Tex. Jur.Zd Statute8 S 165, and author-
itierrcited thzin.
                       SUMYARY
            The mere refusal to deliver propexty to
            a secured party is not an offense under
            section 32.33 of the Penal Code:

                                  Very truly yours,
                                 A




APPROVED:




Opinion'Committee

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