# TheAttorney GeneralofTexas

March 19, 1982 MARKWHITE AttorneyGeneral

Supreme Court Building P.0. Box 12546 Austin. TX. 7671 l-2548 5121475-2501 Telex 9101674-1367 Telecopier 5121475.0266

1607 Main St., Suite 1400 Dallas, TX. 75201-4709 21417424944

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1220 Dallas Ave.. Suite 202 Houston, TX. 77002.6966 713165OGS66

806 Broadway, Suite 312 Lubbock, TX. 79401.3479 6061747.5236

4309 N.Tenth, Suite B McAllen. TX. 76501.1665 5121662-4547

200 Main Plaza. Suite 400 San Antonio. TX. 76205-2797 5121225.4191

An Equal Opportunity/ Affirmative Action Employer Mr. SamKelley, Commissioner Consumer Credit Commission P. 0. Box2107 Austin, Texas 78768 opinion No. w-457 KC?: Construction 5069 - 51.03A, of article V.T.C.S., denying pawnbroker's license to applicant convicted of crime involving moral turpitude Dear Mr. Kelley: You advise that an individual whowas convicted of attempted robbery in California in 1940 has applied for a pawnshop license. This conviction is the only blemish on his record. You ask whether section 3A of the Texas Pawnshop Act, article 5069-51.01, et seq.. V.T.C.S., prevents you from granting himalicense. Section 3A. codified as article ~5069-51.03A. V.T.C.S., was enacted by the Sixty-seventh Legislature. Acts 1981, 67th Leg., ch. 99, at 222. It provides in pertinent part as follows:

(a) To be eligible for a pawnshop license, an applicant must:

(1) be of good moral character and not have been convicted of or beunder indictment for theft, fraud, forgery, or any crime involving moral turpitude. Nothing in the language of section 3Asuggests that the statute only applies where a conviction is obtained in aTexas court for an ;:zens;prdeJ Teo~p~l.aw. CompareMunizv. State, 575 S.W.2d 408 (Tex. Christi 1978. writ ref'd n.r.e.) (construing similar linguage in section 6of article 320a-1, V.T.C.S.). Thus, the mere fact that this applicant was convicted in California of an offense under California law does not excuse him from the provisions of section 3A(s)(l). Under section 3A. a pawnshop license must be denied to an applicant who has been convicted of three specific crimes: theft, fraud or forgery. A conviction of attempted robbery is not aMr. SamKelley - Page 2 (m-457)

conviction of theft, fraud or forgery. See Penal Code 5115.01 (criminal attempt); 29.02 (robbery); 31.03 (theft). Alicense must, however, also be denied toanapplicant whohas been convicted of “any crime involving moral turpitude.” The remaining question, therefore. is whether this applicant is in this category.

“Crime involving moral turpitude” is anebulous termwhich is not defined in the Texas PawnshopAct. For that matter, it has never been clearly defined, although somecases docontain useful discussions of the term. In Munia v. State, supra, at 411, for example, the court stated as follows:

Moral turpitude has been defined as anything done knowingly contrary tojustice, honesty, principle, or good morals. [citations omitted]. It has also been defined to be anact of baseness, vileness, or depravity in the private and social duties which amanowes to his fellow menor to society in general. [citations omitted]. The term implies something immoral in itself, regardless of whether it is punishable bylaw. Thedoing of the act itself, and not its prohibition by statute, fixes the moral turpitude. [citation omitted]. Immoral conduct is that conduct which is willful, flagrant, or shameless, and which shows a moral indifference to the opinion of the good and respectable members of the community. [citations omitted]. Seegenerally 62Tex. Jur. 2dWitnesses 1271. Section 29.02 of the Texas Penal Code lists the elements of the crime of robbery. It provides that:

(a) Aperson commits anoffense if, in the course of committing theft as defined in [section 31.01 et. seq.] of this code andwith intent to obtain or maintain control of theproperty, he:

(1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly, threatens or places another in fear of inrminent bodily injury or death. 6) An offense under this section is a felony of the second degree.Mr. SamKelley - Page 3 (MW-457)

r

Section 15.01 of the Texas Penal Code deals with criminal attempt. It provides inpertinent part as follows:

(a) Aperson commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.

.... (d) Anoffense under this section is one category lower than the offense attempted.... Under present Texas law, therefore, attempted robbery is a third degree felony. Under California law in effect in 1940, the year in which this applicant wasconvicted, the elements of attempted robbery were in all essential respects the sameas those established bypresent Texas law. Section 211of the California Penal Code provided (and still provides) that: Robbery is the felonious taking of personal

property in the possession of another, from his person or immediate presence, and against his will, accomplished bymeans of force or fear. "Attempted" robbery occurred where there was a soecific intent to commit-robbery and-a direct, unequivocal, but ineffectual overt act directed at its consummation. See, e.g., People v. Viscarra, 168Cal. P.2d 747 (Ct. App. me): Cal. Penal Code §§663. 664 Rptr. 257 (Ct. App. 1980); People v. Gibson. 210 1949) (elements of "attempted" cri (West). We believe Texas courts would treat the Texas offense of attempted robbery as a crime involving moral turpitude. Compare, *, Arambula v. State, 112S.W.Zd 737 (Tex. Grim. App. 1938) (theft a crime involving moral turpitude); Sherman v. State, 62 S.W.2d 146 (Tex. 1933) (swindling a crime involving moral turpitude); see also American Motorists Insurance Companyv. Evans, 577 S.W.2d 514 (Tex. Cl". App. - Texarkana 1979, writ ref'd n.r.e.). As noted, this offense is athird degree felony, and the elements discussed inMunis v. state, supra, are certainly present. Similarly, we believe the crime of which this applicant was convicted in 1940 is a crime involving moral turpitude within the meaning of section 3A(s)(l). The elements of attempted robbery as then defined by California lawwere, as noted, essentially the sameas those established by present Texas

p. 1589Mr. Sam Kelley - Page 4 (MW-457)

law, which demonstrates that the crime “as no less heinous under California’s criminal justice system than it nowis under ours. We next consider howsection 3A(s)(l) applies in the present situation. Asnoted before, that section provides that in order tobe eligible for a pawnshop license, an applicant “mustu meet certain requirements. In our opinion, the word “must” is, in this context, mandatory. SeeVela v. Schacklett, 1S.W.2d 670 (Tex. Civ. App. - San Antonio 1927, nowrit); 73Am.Jur. 2d Statutes 522. The consumer credit commissioner “must,‘I therefore, deny alicense to anapplicant whohas been convicted of acrime involving moral turpitude. It has been suggested that article 6252-13~. V.T.C.S., enacted by the Sixty-seventh Legislature, Acts 1981, chapter 267, at 694, compels adifferent result. Section 4thereof provides that:

(a) Alicensing authority may... disqualify aperson from receiving alicense... because of a person’s conviction of afelony or misdemeanor if the crime directly relates to the duties and responsibilities of the licensed occupation. Theargument is that, notwithstanding section 3A(s)(l) of the Pawnshop Act, the consumer credit commissioner may. by virtue of article 6252-13~. grant anapplicant alicense if he concludes that the crime of which the applicant wasconvicted would not directly relate to the duties andresponsibilities of the licensed occupation. Wedisagree. It is true that section 4(a) of article 6252-13~ authorizes (although it does not require) a licensing authority to deny anapplicant alicense if it concludes that the applicant’s past criminal activity would directly relate to the licensed occupation. On the other hand, section 7(e) of article 6252-13~ provides that

“[u]pon a licensee’s felony conviction... his license shall be revoked.” (Emphasis added). Weneed not, in this instance, determine the import of section 7(e) or resolve the apparent conflict between this section andsection 4(a). In our opinion, article 5069-51.03A controls in any event, because it is aspecific statute which provides that anapplicant for a particular license must be denied that license under certain circumstances. As between neneral and specific statutes, the latter are uniform intent, see. e.g., Cuellar v. State, 521 S.l 1975); City of Baytown v. Ange Houston [14th Dist.1 197

nly regarded as the best evidence of the legislature’s J.2d 277 (Tex. Grim. App. ~1, 469 S.W.2d 923 (Tex. Civ. App. - 1, writ ref

’d n.r.e.), and we believe the enactment of section 3A(s)(l) of the Pawnshop Act plainly evidences a legislative intent absolutely to deny pawnshop licenses to applicants whohave been convicted of the specific crimes listed therein.

p. 1590.. Mr. SamKelley - Page 5 (MW-457) 8

SUMMARY

Byvirtue of article 5069-51.03A, V.T.C.S., an applicant who was convicted of attempted robbery in California in 1940 is not eligible for apawnshop license.

MARK WHITE Attorney General of Texas JOHNW.FAINTER,JR. First Assistant Attorney General RICHARDE. GRAYIII Executive Assistant Attorney General Prepared byJonBible Assistant Attorney General APPROVED: OPINIONCOMMITTEE SusanL. Garrison, Chairman JonBible Rick Gilpin JimMoellinger Bruce Youngblood

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