J --
AUSTIN 1,. TEXAH
WILL WILSON
ATFORNEYGIIENEPAI.
May 14, 1957.
Honorable Frank D. McCown, Opinion No. WW-80
District Attorney,
69th Judicial District, Re: Constructfon of Condit-
316 Denrock 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.
We arc fn receipt of your opinron request and the
very helpful brief which you fomarded to us in connect!.on
therewfth. We quote from your request as fallows:
"A Seller sells a washing maehPr;e,
delivers posse,ssion to the vendee and takes
a conditional sales contract whereby the
seller retafns the title to the property
until the entire unpaid balance fs paid. It
is entered into as a two party agreement
and does not purport to be a chattel mort-
gage D The vecd2e t&n sells tkie property
or removes LL Pr:w the State :jr C%n:ty with
intent to de?::ac?."
You pWpound8d the following questions for our ccii:-
sideration and opfnion:
"1 D Has the vendee violated the provfsions
of Artfole 1558 P. C. on fraudulent dls-
position of mortgaged property?
"2 * If he is not guilty of fraudulent dis-
posLtlon 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 1 and 2 above, 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 there-
of, out of the State, OF out of the County in which it was
located at the time of the creation of the lien* or other-
wise disposea of same with 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 “Condit-
ional 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
a Conditional Sales Contract a
You state in substance %ha% the proposed defendant
purchased the personal property under a en~:!,df%fonal sales
contract, wherein ft was prrvfded that %he tftle to the prop-
erty was retained by %he vendor 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, OF frauduSen%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%gages ew
Itis well settled in Texae that all attempted re-
servations of t’ftle in a salss note or contract simply make
the fnatrumant a ahat%el mortgage, and the status of the par-
ties is that of mortgagor and mortga ee, Peterafme Incuba -
tor Co D vs D BUM 239 S .We 2d 416> 7Tex, Civ OApp., 1951)
381 (Tex, Cfv.App, p 1943) error refused, want of merit O
In our opinion, the case oi Williams v. State, 118
Tex. Cr, 386, (Sg3S), 39 S,W,2d 79, held only that a -condft-
fonal sales eon%ract “is not, OR its face, a chattel aortgag=.
-
Honorable Frank D, MCCOWQ, Page 3 ww-80
Hence, there was a variance between the instrument described
in the indictment a mortgagg and that received In evi-
dence." The Coup we belfdve, 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, and who
fraudulently disposes of it is not guflty of Fraudulent dis-
position of mortgaged property under the provisions of
Article 1558, Texas Penal Code.
On the basis of the foregoing authorftfes, your
first questfon la answered In the affirmative. It is,
unnecessary to consider questi.ons Nos, 2, 3, and
Pef
0 Ope9
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 a vlolatfon of
the ppov%sions of Article 1558 OS the Texas
Penal Code relating to fraudulent dfsposltfon
OS mortgage property,
Very truly yours,
WILL WILSON
Attorney General
By 5. k -,
B. Ii. Tlmmfns, Jr.
BRTzpr"srh Assistant
APPROVED:
OPINION COMMITTEE
II, Grady Chandler, Chairman
Byron Fullerton
Milton Richardson
Wagland C, Rfvers
REVIEWEDFOR THE ATTORNEYGENERAL
By: Gee, P. Blackburn