J --

AUSTIN 1,. TEXAH

WILL WILSON ATFORNEYGIIENEPAI. May14, 1957.

Honorable Frank D. McCown, Opinion No. WW-80 District Attorney, 69th Judicial District, Re: Constructfon of Condit316Denrock 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.

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

"ASeller sells awashing maehPr;e, delivers posse,ssion to the vendee and takes aconditional sales contract whereby the seller retafns the title to the property until the entire unpaid balance fs paid. It is entered into as atwo party agreement and does not purport to be a chattel mortgageD Thevecd2e t&n sells tkieproperty or removes LLPr:w the State :jr C%n:ty with intent to de?::ac?." You pWpound8d the following questions for our ccii:- sideration and opfnion:

"1D Has the vendee violated the provfsions of Artfole 1558 P. C. on fraudulent dlsposition of mortgaged property? "2* If he is not guilty of fraudulent disposLtlon 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 1and 2above, 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 thereof, out of the State, OFout of the County in which it was located at the time 

### of the creation of the lien* or otherwise disposea of samewith 

### 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 “Conditional 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 aConditional Sales Contract a

Youstate in substance %ha%the proposed defendant purchased the personal property under aen~:!,df%fonal sales contract, wherein ft was prrvfded that %hetftle to the property wasretained by %hevendor 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, OFfrauduSen%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%gagesew

It is well settled in Texae that all attempted reservations of t’ftle in asalss note or contract simply make the fnatrumant aahat%el mortgage, and the status of the parties is that of mortgagor andmortga ee, Peterafme Incuba- tor CoDvsDBUM 239S.W e2d 416> 7

Tex, CivOApp., 1951)

381 (Tex, Cfv.App, p1943) error refused, want of 

### merit O

In our opinion, the case oi Williams v. State, 118 Tex. Cr, 386, (Sg3S), 39S,W,2d 79, held 

### only that a-condftfonal sales eon%ract “is not, ORits face, a chattel aortgag=.-

Honorable Frank D, MCCOWQ, Page 3 ww-80

Hence, there was avariance between the instrument described in the indictment dence." The Coup amortgagg and that received In eviwebelfdve, 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, andwho fraudulently disposes of it is not guflty of Fraudulent disposition of mortgaged property under the provisions of Article 1558, Texas Penal Code.

Onthe basis of the foregoing authorftfes, your first questfon la answered In the affirmative. It is, Pef Ope9unnecessary to consider questi.ons Nos, 2, 3, and 0 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 avlolatfon of the ppov%sions of Article 1558 OSthe Texas Penal Code relating to fraudulent dfsposltfon OSmortgage property, Very truly yours, WILLWILSON Attorney General

BRTzpr"srh APPROVED: OPINIONCOMMITTEE II, Grady Chandler, Chairman Byron Fullerton Milton Richardson Wagland C, Rfvers By 5. k -, B. Ii. Tlmmfns, Jr. Assistant

REVIEWED

FORTHEATTORNEY GENERAL By: Gee, P. Blackburn