The Attorney General of Texas 

March 19, 1982 

MARKWHITE 

Attorney General 

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 

4624 Alberta Ave.. Suite 160 

E, Paso. TX. 799052793 

9151533-3484 

1220 Dallas Ave.. Suite 202 

Houston, TX. 77002.6966 

7 13165OGS66 

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. Sam Kelley, Commissioner 

Consumer Credit Commission 

P. 0. Box 2107 

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 who was 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 him a license. 

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 be under indictment 

for theft, fraud, forgery, or any crime 

involving moral turpitude. 

Nothing in the language of section 3A suggests that the statute 

only applies where a conviction is obtained in a Texas court for an 

;:zens;prdeJ Teo~p~l.aw. Compare Muniz v. State, 575 S.W.2d 408 (Tex. 

Christi 1978. writ ref'd n.r.e.) (construing 

similar linguage in section 6 of 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 a 
Mr. Sam Kelley - Page 2 (m-457) 

conviction of theft, fraud or forgery. See Penal Code 5115.01 

(criminal attempt); 29.02 (robbery); 31.03 (theft). A license must, 

however, also be denied to an applicant who has 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 a nebulous term which is not 

defined in the Texas Pawnshop Act. For that matter, it has never been 

clearly defined, although some cases do contain 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 to justice, honesty, principle, 

or good morals. [citations omitted]. It has also 

been defined to be an act of baseness, vileness, 

or depravity in the private and social duties 

which a man owes to his fellow men or to society 

in general. [citations omitted]. The term 

implies something immoral in itself, regardless of 

whether it is punishable by law. The doing 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]. 

See generally 62 Tex. Jur. 2d Witnesses 1271. 

Section 29.02 of the Texas Penal Code lists the elements of the 

crime of robbery. It provides that: 

(a) A person commits an offense if, in the 

course of committing theft as defined in [section 

31.01 et. seq.] of this code and with intent to 

obtain or maintain control of the property, 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. Sam Kelley - Page 3 (MW-457) 

r 

Section 15.01 of the Texas Penal Code deals with criminal 

attempt. It provides in pertinent part as follows: 

(a) A person 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) An offense 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 was convicted, the elements of attempted robbery were in all 

essential respects the same as those established by present Texas law. 

Section 211 of 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 by means 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, 168 Cal. 

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, 112 S.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 Company v. Evans, 577 S.W.2d 514 (Tex. 

Cl". App. - Texarkana 1979, writ ref'd n.r.e.). As noted, this 

offense is a third degree felony, and the elements discussed in Munis 

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 law were, 

as noted, essentially the same as those established by present Texas 

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

law, which demonstrates that the crime “as no less heinous under 

California’s criminal justice system than it now is under ours. 

We next consider how section 3A(s)(l) applies in the present 

situation. As noted before, that section provides that in order to be 

eligible for a pawnshop license, an applicant “mustu meet certain 

requirements. In our opinion, the word “must” is, in this context, 

mandatory. See Vela v. Schacklett, 1 S.W.2d 670 (Tex. Civ. App. - San 

Antonio 1927, no writ); 73 Am. Jur. 2d Statutes 522. The consumer 

credit commissioner “must ,‘I therefore, deny a license to an applicant 

who has been convicted of a crime 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 

a different result. Section 4 thereof provides that: 

(a) A licensing authority may... disqualify 

a person from receiving a license... because of a 

person’s conviction of a felony or misdemeanor if 

the crime directly relates to the duties and 

responsibilities of the licensed occupation. 

The argument is that, notwithstanding section 3A(s)(l) of the Pawnshop 

Act, the consumer credit commissioner may. by virtue of article 

6252-13~. grant an applicant a license if he concludes that the crime 

of which the applicant was convicted would not directly relate to the 

duties and responsibilities of the licensed occupation. 

We disagree. It is true that section 4(a) of article 6252-13~ 

authorizes (although it does not require) a licensing authority to 

deny an applicant a license 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). 

We need not, in this instance, determine the import of section 

7(e) or resolve the apparent conflict between this section and section 

4(a). In our opinion, article 5069-51.03A controls in any event, 

because it is a specific statute which provides that an applicant 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 

who have been convicted of the specific crimes listed therein. 

p. 1590 
. . Mr. Sam Kelley - Page 5 (MW-457) 

8 

SUMMARY 

By virtue 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 

a pawnshop license. 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Jon Bible 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Rick Gilpin 

Jim Moellinger 

Bruce Youngblood 

p. 1591