ON STATE’S MOTION FOR REHEARING
ONION, Presiding Judge.On original submission, we held that the theft indictment in this case was fundamentally defective. At the time of the offense, V.T.C.A., Penal Code, § 31.03 (1974), provided:
“(a) A person commits an offense if, with intent to deprive the owner of property:
“(1) he obtains the property unlawfully; or
“(2) he exercises control over the property, other than real property, unlawfully.
*594“(b) Obtaining or exercising control over property is unlawful if:
“(1) the actor obtains or exercises control over the property without the owner’s effective consent; or
“(2) the property is stolen and the actor obtains it from another or exercises control over the property obtained by another knowing it was stolen.”
The indictment herein alleges, inter alia, that the appellant:
“ . . . did then and there unlawfully exercise control over property, namely one billfold and cash money, with the intent to deprive the owner, George Scearce, hereinafter styled the Complainant, of the property, and the Defendant stole the property from the person of the Complainant.”
No motion to quash or exception to the sufficiency of the indictment was filed nor was the alleged deficiency mentioned in the motion for new trial. On appeal, appellant urged that the indictment was fatally defective as it failed to allege the theft was “without the owner’s consent.” On original submission we agreed.
On rehearing the State argues that in the 1974 Penal Code the various theft statutes were consolidated into one offense, V.T. C.A., Penal Code, § 31.03, and that the elements of the one offense are found in subsection (a) of § 31.03 and include the element of “unlawfully.” It contends that subsection (b) merely defines “unlawfully” for the purpose of the theft statute, and the phrase “without the owner’s effective consent” is found only in the definition of “unlawfully” and is not an element of the theft offense.
The Practice Commentary to said § 31.03 appears to support the State’s position when it states:
“The new theft offense consists of the following elements: (1) with intent to deprive (2) the owner (3) of property, the actor (4) obtains the property or exercises control over the property (other than real property) (5) unlawfully.” See and cf. 2 Branch’s 3rd ed., Texas Ann.Penal Statutes, § 31.03, p. 404 (suggested form of indictment).
Under the State’s theory, there is no need to allege “without the owner’s effective consent” as this phrase is found only in the definition of when obtaining or exercising control is “unlawful” and that the allegation in the instant indictment that the appellant “unlawfully” exercised control over property satisfies the requirement that the elements of an offense be pleaded.1
The State further takes issue with the manner in which the question was stated in the opinion on original submission. There it was stated that the question presented was:
“Does an indictment which attempts to charge theft state an offense when it omits an allegation that the possession of the property was obtained without the owner’s effective consent?”
In light of the fact that the indictment alleged “unlawfully exercised control over property” rather than “unlawfully obtain*595ed,” the State’s suggestion has merit insofar as the wording of the question presented.2
The question is thus restated:
“Does an indictment which attempts to charge theft state an offense when it alleges that the defendant 'unlawfully exercised control over property’ but fails to allege that such control was ‘without the owner’s effective consent.’ ”
In light of the State’s theory of the case, we observe that V.T.C.A., Penal Code, § 1.07(a)(36), provides:
“ ‘Unlawful’ means criminal or tortious or both and includes what would be criminal or tortious but for a defense not amounting to justification or privilege.”
The State argues that this definition of “unlawful” is used in a general sense in a general statute and that the definition of “unlawful” found in subsection (b) of said § 31.03 is a more restrictive definition applicable to the special statute defining theft. While the State’s argument has merit, it points up the problem before us. The allegation of “unlawfully” pleads only a conclusion of law omitting the facts necessary to that conclusion. The notice requirements of an indictment under the Texas Constitution3 are not met by that allegation.
In Ex parte Cannon, 546 S.W.2d 266 (Tex.Cr.App.1976), this court in interpreting § 31.03(a) and (b) determined that the offense of theft is comprised of four different sets of possible elements, as follows:
“(1) a person
“(2) with intent to deprive the owner of property
“(3) obtains the property
“(4) without the owner’s consent
or
“(1) a person
“(2) with intent to deprive the owner of property
“(3) obtains the property
“(4) which is stolen property
“(5) from another
“(6) knowing it was stolen
or
“(1) a person
“(2) with intent to deprive the owner of property
“(3) exercises control over the property, other than real property
“(4) without the owner’s effective consent
or
“(1) a person
“(2) with intent to deprive the owner of property
“(3) exercises control over the property, other than real property
“(4) which is stolen property
“(5) obtained by another
“(6) knowing it was stolen.”
In Ex parte Cannon, supra, it was said:
“An indictment for theft which does not allege all of the elements of one of these methods is fundamentally defective.” (Emphasis supplied.)
The State’s argument that the allegation of “unlawfully” in the instant indictment ren*596ders unnecessary the allegation “without the owner’s effective consent” is rejected.
The State’s motion for rehearing is overruled.
DOUGLAS, J., dissents for the reasons stated in his dissenting opinion on original submission.. The previous general theft statute, Article 1410, Vernon’s Ann.P.C. (1925), had not changed since its adoption in the original codification of the Penal Code in July, 1856. An indictment for theft under this statute was required to allege the owner’s lack of consent to the taking of property. Huntsman v. State, 12 Tex.App. 619 (1882); Kitchen v. State, 124 Tex.Cr.R. 358, 62 S.W.2d 144 (Tex.Cr.App.1933); Moore v. State, 473 S.W.2d 523 (Tex.Cr.App.1971); Martinez v. State, 494 S.W.2d 182 (Tex.Cr.App.1973). Certain other statutes, defining crimes related to theft, and absorbed into the current theft statute in 1974, did not require allegations of lack of consent of the owner. Henderson v. State, 362 S.W.2d 322 (Tex.Cr.App.1962) [Article 1436(e), Vernon’s Ann.P.C., Shoplifting]; Maxwell v. State, 509 S.W.2d 338 (Tex.Cr.App.1974) [Article 1410, Vernon’s Ann. P.C., Theft by false pretext].
. V.T.C.A., Penal Code, § 31.01(5) provides: “(5) ‘Obtain’ means to bring about a transfer or purported transfer of a nonpossessory interest in property, whether to the actor or another.”
. See Article I, § 10, Texas Constitution.