# The Attorney General of Texas
November 2, 1983 JIM MATTOX Attorney General

supreme Court Bullding P.O.BOX 12546 Aust,n, TX. 78711. 2546 5121475~2501 Telex 9101874-1367 Telecopier 5121475-0266

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700 Dallas. TX.75202.4506 2141742-6944

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200Main Plaza. Suite 400 San Antonio. TX. 76205.2797 5121225-4191 Mr. SamKelley COUl6LiSSiOl-lS~ ConsumerCredit Commission 1011 San JacintoBoulevard Austin, Texas 78768 OpinionNo.m-85 lb: Are provisions of Corpus Christi city code regulating pawnshops incousistent with section 10(b)of article 5069, V.T.C.S.
Dear Mr. Kelley:
You have requested our opinion as to whether the Corpus Christi Code of Ordinances [hereinafter“the code”] is in conflictwith or is inconsistentwith the Texas PawnshopAct, article 5069-51.01 et seq., V.T.C.S., [hereinafter “the act”]. You inquire with respect to two provisions of the code as it regulates the pawnbroker business in Corpus Christi.
You first direct our attention to two provisions of the act. Article 5069-51.10(b) lists the information that a pledgor must give to thepawnbrokerandwhichmust appear on a pawn ticket:

The pawnbroker, at the time the pawn transaction is entered, shall deliver to the pledgor a memorandum or ticketon which shallbe clearly set forth the following:

. . . . (b) The name and address of the pledger and the pledgor’s description or the distinctive number from pledgor’s driver’s licenseormilitary identification
. . . .

V.T.C.S. art. 5069, §5l.lO(b). Article 5069-51.16(e)specifieswhen and how a pledgormay redeem property froma pawnbroker:

A pawnbroker shallnot:

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. . . . (e) Fail to return pledged goods to a pledgor upon payment of the fullamount due thepawnbroker on the pawn transaction. In the event such pledged goods are lost or damaged while in the possession of the pawnbroker it shall be the responsibility of the pawnbroker to replace the lost or damaged goods with like kind(s) of merchandise. All such replacementsare subject to theapproval or rejectionof the Commissioner.
You thendirect our attention to twoprovisions of the code. As does article 5069-51.10(b)of the act, section 37-2 of the code lists information that a pledgor must give to the pawnbroker; this information,however, is for the pawnbroker'sown records and not for printing on thepawn ticket.

It shall be the duty of every pawnbroker or secondhand dealer in the city, whether such pawnbroker or secondhand dealer is a resident or itinerant business, to keep a book, in a form approvedby the chief of police, inwhich shallbe legiblywritten in inkat the time of each loan or purchase an accurate account and description in the English language of all secondhand items pawned, pledged or purchased, the amount of money loaned thereon, or paid therefor, the date of pledging or purchasing of the same, the rate of interest to be paid on such loan, the name, residence address and telephone number of the person pawning, pledging or selling the items and an accurate description, including proof of identity, of the person pawning, pledging, or selling the items. A numbered identification shall be required for proof of identity and such numbered identification shall have a photograph for verification except where the pawnbroker or secondhand dealer has personal knowledge of the identity of the person pawning, pledging or selling the items. No entry made in such book shallbe erased, obliteratedor defaced. All such records shallbe kept on fileby thepawnbrokeror secondhand dealer for a period of two (2)years. (Ord.No.16140%. 61, 4-1-81).
As does article 5069-51.16(e) of the act, section 37-4 of the code deals with the pledger's redemption of personal property from the pawnbroker.

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No personal property received by a pawnbroker or secondhand dealer on deposit or pledge or by purchase shall be permitted to be redeemed or removed from the place of business of such pawnbroker or secondhand dealer or from the City of CorpusChristi for a period of seventy-two (72) hours after the close of business on the date such item shall have been received by such pawnbroker or secondhanddealer, nor shall any such property be altered in any way or have any identifying markings, names or numbers altered or obliterated during such time. Where any pawnbroker or secondhanddealer finds that suchperiodwill work a hardship or constitute an undue burden, he may so notify the chief of police or his designated representative in writing of his need to act and that the item or items are available for inspection. Upon inspection and release of the item or itemsby an officer of thepolice division or the lapse of twelve (12)hours from the receipt by the chief of police or his designated representative of the required notification, the seventy-two-hourwaiting period shallbe deemed to have been satisfied. (Ord. No. 16140%. 51, 4-1-81;Ord. No. 17355, 51, 11-10-82).
Your inquiry concerns the relative authority of the code and the act with respect to the pawnbroker's business in the city of Corpus Christi. In answering your question, we note that a home rule city suchas Corpus Christiderives itspowersnot from the legislaturebut from the Texas Constitution. Article XI, section 5, of the constitution permits a city to enact ordinances which are neither inconsistentwith nor in conflictwith the constitutionor the general statutes of the state of Texas. Tex. Const. art. XI, 05. Article 1165, V.T.C.S., contains a similar limitation on a home rule city's powers; see also City of Beaumontv. Jones, 560 S.W.2d 710 (Tex.Civ. APP. - Beaumont 1977,writ ref'dn.r.e.). However,we also note that

[tlhe entry of the state into a field of legislation
. . . does not automatically preempt that field from city regulation;local regulation, ancillary to and inharmonywith the general scope and purpose of the state enactment, is acceptable. City of BrooksideVillagev. Comeau, 633 S.W.2d 790, 796 (Tex. 1982).
Our scrutiny of the questioned code provisions shouldbe made in lightof the expressedpurposesof the Texas PawnshopAct as stated in article 5069-51.018below:

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The making of pawn loans and the acquisition and disposition of tangible personal property by and through pawnshops vitally affects the general economy of this state and the public interestand welfare of its citizens. To prevent frauds, unfair practices, discriminations, impositions, and abuses of the citizensof the state, it is the policy of this state and the purpose of the Texas PawnshopAct to: (1) exercise the state's police power to ensure a sound system of making pawn loans and acquiring and disposing of tangible personal property by and through pawnshops and to prevent unlawful property transactions, particularly in stolen property, through licensing and regulating pawnbrokers and certainpersons employed by or in pawnshops; (2) provide for licensing fees, investigation fees, and minimum capital requirements of licensees; (3) ensure financial responsibility to the stateand thepublic; (4) ensure compliancewith federal, state,and local laws, rules, regulations, and ordinances; and(5) assist local governments in the exercise of theirpolicepower.
It is clear by subsections 4 and 5 of article 5069-51.01A that the legislature did not intend to preempt the field of pawnshop/pawnbrokerregulation. Accordingly, following the ruling in City of BrooksideVillage,Ed, if the questionedprovisions of the Corpus Christ1Code of Ordinancesare ancillary to and in harmonywith the general scope and statedpurposes of the Texas PawnshopAct, those provisions of the code arepermissible.
In our opinion, section 37-2 of the Corpus Christ1 Code of Ordinances is permissible. Section 37-2 is strictly a recordkeeping requirementwhich applies to both pawnbrokers and secondhand dealers in the city of CorpusChristi. It is our opinion that this sectionof the code does not conflictwith but merely elaborates on the rather vague recordkeepingrequirementsprovided in article 5060-51.09of the Texas PawnshopAct. This section of the act requiresonly that

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Mr. SamKelley - Page 5 (~~-85)

each licensee shall~ keep, consistentwith accepted accounting practices, adequate books and records relating to the licensee's P=n transactions
. . . . V.T.C.S. art. 5069-51.09. Section 37-2 of the code goes further and specifies the particular informationwhich must appear in the records ofpawnbrokersand secondhanddealers in the city of CorpusChristi.
It is important to note that there is more than one purpose in requiring identification in a pawn transaction in keeping with the express purposes of the PawnshopAct. Identificationmay be required to ensure that the proper person receives the pawned goods upon redemption -- "to ensure a sound system of making pawn loans and acquiring and disposing of tangible personal property." Further, identificationmay be required to assist law enforcement authorities in locating a person who has pawned stolen property or to hamper thieves in the disposition of stolen goods -- "to prevent unlawful property transaction, particularly in stolen property." Article 5069-51.10(b) of the act effectuates the first purpose, and section 37-2 of the code the second. They are neither inconsistent nor conflicting, and the code provision is in harmony with and promotes thepurposes of the act.
Your question to us specificallyaddresses the possibility of a conflictbetween section 37-2 of the code and article 5069-51.10(b)of the act. Although both sections require that a pledgor give certain information about himself to the pawnbroker, the code is concerned with the informationthatmust appear in thepawnbroker'sown records, while the act is concernedwith the information that must appear on the pawn ticket. Since the two sections regulate two different areas

-- pawnbrokerrecordsand pawn tickets -- there isno direct conflict; further, since the two sections require very similar information -- identity of the pledgor and various proofs of this identity -- there is no inconsistency.
In our opinion, section 37-4 of the Corpus Christ1 Code of Ordinances conflictswith article 5069-51.16(e)of the Texas Pawnshop Act, and the codeprovision is therebyunenforceable. Section 37-4 of the code states that

[n]opersonalproperty receivedby a pawnbroker or secondhand dealer on deposit or pledge or by purchase shall be permitted to be redeemed or removed from the place of business of such pawnbroker or secondhand dealer or from the city of Corpus Christ1 for a period of seventy-two (72) hours after the close of business on the date such

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Mr. SamKelley - Page 6 (JM-85)

item shall have been received by such pawnbroker or secondhanddealer
. . . . Article 5069-51.16(c)of the act clearlyprohibits thepawnbroker from failing "to return pledged goods to the pledgor upon payment of the full amount due the pawnbroker
. . . ." Section 37-4 of the code, insofar as it applies to pawnbrokers and pawn traqactions, clearly conflicts with article 5069-51.16(e) of the act since the former disallows redemptionby the pledgor for 72 hours even if the pledgor iswilling to repay the fullamount of his pawn loan.
SUMMARY Section 37-2 of the Corpus Christ1 Code of Ordinances does not conflict the Texas Pawnshop Act. Section 37-4 of the Corpus Christ1 Code of Ordinances does conflict with the Texas Pawnshop Act. Very trulyyour 

# LILA%

JIM MATTOX AttorneyGeneral of Texas
TOM GREEN FirstAssistantAttorneyGeneral
DAVID R. RICHARDS ExecutiveAssistantAttorneyGeneral Preparedby Rick Gilpin AssistantAttorneyGeneral
APPROVED: OPINION COMMITTEE Rick Gilpin, Chairman Jon Bible David Brooks Colin Carl SusanGarrison Jim Moellinger Nancy Sutton

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