Untitled Texas Attorney General Opinion

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

supreme Court Bullding Mr. Sam Kelley Opinion No. m-85
P.O.BOX 12546 COUl6LiSSiOl-lS~
Aust,n, TX. 78711. 2546 Consumer Credit Commission lb: Are provisions of Corpus
5121475~2501 1011 San Jacinto Boulevard Christi city code regulating
Telex 9101874-1367
Austin, Texas 78768 pawnshops incousistent with
Telecopier 5121475-0266
section 10(b) of article 5069,
V.T.C.S.
714 Jackson.suite700
Dallas.TX. 75202.4506 Dear Mr. Kelley:
2141742-6944

You have requested our opinion as to whether the Corpus Christi
4624 AlbertaAve..Suite160 Code of Ordinances [hereinafter “the code”] is in conflict with or is
El Paso. TX. 79905.2793 inconsistent with the Texas Pawnshop Act, article 5069-51.01 et seq.,
9151533.3464 V.T.C.S., [hereinafter “the act”]. You inquire with respect to two
P
provisions of the code as it regulates the pawnbroker business in
1001 Texas. Suite 700
Corpus Christi.
HOUS,O".TX. 77002-3111
7131223-5666 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 the pawnbroker and which must appear on a pawn ticket:
606 Broadway, Stlite 312
Lubbock, TX. 79401.3479
6061747-5236 The pawnbroker, at the time the pawn trans-
action is entered, shall deliver to the pledgor a
memorandum or ticket on which shall be clearly set
4309 N. Tenth. Suite B forth the following:
McAllen. TX. 76501-1665
5121662-4547
. . . .

200 Main Plaza. Suite 400 (b) The name and address of the pledger
San Antonio. TX. 76205.2797
and the pledgor’s description or the
5121225-4191
distinctive number from pledgor’s driver’s
license or military identification . . . .

V.T.C.S. art. 5069, §5l.lO(b).

Article 5069-51.16(e) specifies when and how a pledgor may redeem
property from a pawnbroker:

A pawnbroker shall not:

p. 358
Mr. Sam Kelley - Page 2 (JM-85)

. . . .

(e) Fail to return pledged goods to a pledgor
upon payment of the full amount due the pawnbroker
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 replacements are subject to
the approval or rejection of the Commissioner.

You then direct our attention to two provisions 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's own records and not for
printing on the pawn 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
approved by the chief of police, in which shall be
legibly written in ink at 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
shall be erased, obliterated or defaced. All such
records shall be kept on file by the pawnbroker or
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.

p. 359
Mr. Sam Kelley - Page 3 (J&85)

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 Corpus Christi 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 secondhand dealer, 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
secondhand dealer finds that such period will 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 items by an officer of the police 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-hour waiting period shall be 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
such as Corpus Christi derives its powers not from the legislature but
from the Texas Constitution. Article XI, section 5, of the
constitution permits a city to enact ordinances which are neither
inconsistent with nor in conflict with the constitution or 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 Beaumont v. Jones, 560 S.W.2d 710 (Tex. Civ.
APP. - Beaumont 1977, writ ref'd n.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 in harmony with the general scope
and purpose of the state enactment, is acceptable.

City of Brookside Village v. Comeau, 633 S.W.2d 790, 796 (Tex. 1982).

Our scrutiny of the questioned code provisions should be made in
light of the expressed purposes of the Texas Pawnshop Act as stated in
article 5069-51.018 below:

p. 360
Mr. Sam Kelley - Page 4 (JM-85)

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 interest and
welfare of its citizens. To prevent frauds,
unfair practices, discriminations, impositions,
and abuses of the citizens of the state, it is the
policy of this state and the purpose of the Texas
Pawnshop Act 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 certain persons employed by or in
pawnshops;

(2) provide for licensing fees, investigation
fees, and minimum capital requirements of
licensees;

(3) ensure financial responsibility to the
state and the public;

(4) ensure compliance with federal, state, and
local laws, rules, regulations, and ordinances;
and

(5) assist local governments in the exercise
of their police power.

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/pawnbroker regulation. Accordingly, following the ruling in
City of Brookside Village, Ed, if the questioned provisions of the
Corpus Christ1 Code of Ordinances are ancillary to and in harmony with
the general scope and stated purposes of the Texas Pawnshop Act, those
provisions of the code are permissible.

In our opinion, section 37-2 of the Corpus Christ1 Code of
Ordinances is permissible. Section 37-2 is strictly a recordkeeping
requirement which applies to both pawnbrokers and secondhand dealers
in the city of Corpus Christi. It is our opinion that this section of
the code does not conflict with but merely elaborates on the rather
vague recordkeeping requirements provided in article 5060-51.09 of the
Texas Pawnshop Act. This section of the act requires only that

p. 361
c .

Mr. Sam Kelley - Page 5 (~~-85)

each licensee shall~keep, consistent with accepted
accounting practices, adequate books and records
relating to the licensee's P=n transac-
tions . . . .

V.T.C.S. art. 5069-51.09. Section 37-2 of the code goes further and
specifies the particular information which must appear in the records
of pawnbrokers and secondhand dealers in the city of Corpus Christi.

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 Pawnshop Act. Identification may 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,
identification may 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
the purposes of the act.

Your question to us specifically addresses the possibility of a
conflict between 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 information that must appear in the pawnbroker's own records,
while the act is concerned with the information that must appear on
the pawn ticket. Since the two sections regulate two different areas
-- pawnbroker records and pawn tickets -- there is no 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 conflicts with article 5069-51.16(e) of the Texas Pawnshop
Act, and the code provision is thereby unenforceable. Section 37-4 of
the code states that

[n]o 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 Corpus Christ1 for a period of seventy-two (72)
hours after the close of business on the date such

p. 362
 ..

Mr. Sam Kelley - Page 6 (JM-85)

item shall have been received by such pawnbroker
or secondhand dealer . . . .

Article 5069-51.16(c) of the act clearly prohibits the pawnbroker 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 redemption by the pledgor for 72 hours even if the pledgor
is willing to repay the full amount 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.

LILA% Very truly your

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Jon Bible
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton

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