dissenting.
This dissent is respectfully submitted.
This writer agrees with the greater part of the majority opinion. Under the section entitled “Recovery of Interest Payments,” *578the majority correctly recites that the lender Bank is clearly not entitled to recover the two seven thousand dollar sums, one of which was deposited with the court and the other being deposited in Mrs. Miller’s account with the Bank, for under the unequivocal writings of this court the sums represent usurious interest. Wall v. East Texas Teachers Credit Union, 533 S.W.2d 918 (Tex.1976).
However, the majority then continues by holding that usurious interest actually paid by the borrower to the lender under the usurious contract is never recoverable under Article 5069-1.06, Texas Revised Civil Statutes Annotated:
“Neither do we agree that recovery of interest by the payor is authorized as an additional forfeiture penalty under Article 5069-1.06(1), which provides that any person who ‘contracts for, charges or receives’ usurious interest ‘shall forfeit to the obligor twice the amount of interest contracted for, charged or received . . .’ Section (1) of Article 5069-1.06 does not so provide. Section (2) of the same Article, relating to any lender ‘who contracts for, charges or receives interest which is in excess of double the amount of interest allowed by this Subtitle shall forfeit as an additional penalty all principal as well as interest and other charges . ..’ If the Legislature had intended the additional penalty of forfeiture of interest paid under Section (1), it would have been a simple matter to have so stated, as in Section (2).”
What the majority would therefore hold in the instant ease is that (1) unpaid usurious interest may not be recovered by the lender, (2) usurious interest on deposit in the lender’s bank under a “freeze order” may not be retained by the lender, and (3) usurious interest deposited in the registry of the court may not be recovered by the lender. But, in any instance where the usurious interest has actually been received by the lender, the lender may retain such interest even though payments may have been made through ignorance, mistake, or fear.
Such a result is, in effect, an application of the pari delicto approach in construing usurious contracts. This approach was not utilized in Texas prior to the enactment of Article 5069-1.06, and the Legislature has specifically rejected such an approach in its Declaration of Legislative Intent for this Act. The courts, whether acting under statute or common law, have generally taken one of two approaches to usurious contracts: (1) the pari delicto approach; or (2) the “victim” approach. The pari delicto theory proceeds under the premise that a usurious contract is illegal or is one under which there is no liability to pay. As such, interest paid under the usurious contract with knowledge of the facts is not recoverable. On the other hand, the “victim” approach does not regard the borrower and lender as being on equal footing in negotiating the usurious contract. This approach allows recovery of usurious interest paid, holding that the lender has taken advantage of the necessities of the victim. See 59 A.L.R.2d 522 and cases cited therein.
Prior to the enactment of Article 5069-1.-06, the Texas courts specifically rejected the pari delicto approach in Bexar Building & Loan Ass'n v. Robinson, 78 Tex. 163, 14 S.W. 227 (Tex.1890). There is no indication that this posture has been relaxed in Article 5069-1.06; on the contrary, the Legislature has most adamantly advocated the “victim” approach. The Declaration of Legislative Intent recognizes that “[m]any citizens of our State are being victimized and abused in various types of credit and cash transactions. These practices impose a great hardship upon the people of our State.” 15 Texas Revised Civil Statutes Annotated, at 1. Accordingly, to effectuate the pari delic-to approach in the instant case is to fail to accurately comport with the legislative intent in enacting Article 5069-1.06.
Furthermore, the majority opinion’s interpretation of Article 5069-1.06 reaches an inequitable if not unconstitutional result. It imposes the penalty for usurious interest unequally. The lender who exacts payment of all or part of the usurious interest places himself in the position of being, under the interpretation by the majority, penalized *579less than the lender who has received no payment of usurious interest. Although both lenders, under the statute, are to sustain a forfeiture of twice the usurious interest, the lender who has obtained all or partial payment of the interest is not required to refund such amount; therefore, in effect, his penalty is offset by the interest payments received. Indeed, in instances where ail the interest has been paid by the borrower, one half (or fifty percent) of the legislatively required forfeiture is eliminated. Accordingly, borrowers are placed on different footings depending on whether or not they have actually paid usurious interest. Furthermore, the present interpretation by the majority allows for varying results from case to case. In some instances the facts may involve “contracted for” terms which constitute usury, as well as payments “charged or received” under the usurious contract. One court could award twice the amount paid as a penalty; whereas, another court could award twice the amount contracted for in the usurious contract as a penalty. Such interpretations and judgments result in inequitable enforcement of the statute. The fundamental principles of statutory construction require that a statute “not be construed so as to ascribe to the Legislature an intention to do an unjust or an unreasonable thing, if such statute is reasonably susceptible of a construction that will not accomplish such a result.” Anderson v. Penix, 138 Tex. 596, 161 S.W.2d 455, 458-59 (1942); McKinney v. Blankenship, 154 Tex. 632, 282 S.W.2d 691 (1955).
The Declaration of Legislative Intent for this Act specifically indicates that the statute was not intended to develop such a variable system of regulation or penalty imposition; this Declaration provides in part:
“(5) These facts conclusively indicate a need for a comprehensive code of legislation to clearly define interest and usury, to classify and regulate loans and lenders, to regulate credit sales and services, and place limitations on charges imposed in connection with such sales and services, . and to provide firm and effective penalties for usury and other prohibited practices.” Declaration of Legislative Intent, 15 Texas Revised Civil Statutes Annotated, at 2. [Emphasis added.]
Furthermore, the Declaration of Legislative Intent points out that the Act was intended to deal with credit abuses which impose intolerable burdens upon those segments of our society which can least afford to bear them; specifically, “the uneducated, the unsophisticated, the poor and the elderly.” Declaration of Legislative Intent, supra. Often it is this category of persons from whom actual payment of usurious interests might be exacted, yet it is this category who most needs the protection of the Act. The lenders servicing these segments of society will then forfeit less when found to charge usurious interest. Therefore, the legislative intent is thwarted by the majority’s interpretation of the statute as it does not protect all borrowers equally, does not treat all lenders exacting usury the same, does not provide a systematic regulation of usury, and does not obtain a forfeiture of “twice the amount of interest contracted for, charged or received.”
The wording of Article 5069-1.06, Subsection (1), is ambiguous in its provisions of forfeiture wherein it states:
“Any person who contracts for, charges .or receives interest which is greater than the amount authorized by this Subtitle, shall forfeit to the obligor twice the amount of interest contracted for, charged or received, . ” [Emphasis added.]
In a single transaction the amount “contracted for,” the amount “charged,” and the amount “received” each might be different sums. Such, in fact, is the instance in the present case. Under such circumstances, the standard for imposing the forfeiture is nebulous. Although penal statutes must be strictly construed, the fundamental principles of statutory construction apply. Accordingly, in construing ambiguous statutes the courts must determine the legislative intent. Minton v. Frank, 545 S.W.2d 442 (Tex.1976); Jones v. Del Andersen and Associates, 539 S.W.2d 348 (Tex.1975). The *580language of the statute is capable of a reasonable and equitable interpretation which comports with the legislative intent and allows recovery of the usurious interest actually paid by the borrower, as well as imposition of a penalty of twice the usurious interest contracted for, charged or received. Usurious contracts may be evidenced by the actual wording of the contract or by the substance or form of the transaction. Our courts have consistently held that substance rather than form of a loan transaction will determine if a loan is usurious and that the courts will ferret out various shadow transactions to determine if their provisions are usurious. State v. Community Finance & Thrift Corporation, 334 S.W.2d 559 (Tex.Civ.App.—Austin 1960), per curiam, 161 Tex. 619, 343 S.W.2d 232 (1961); Schmid v. City Nat. Bank of Wichita Falls, 132 Tex. 115, 114 S.W.2d 854 (1938). The penalty provisions of Article 5069-1.06 are designed to meet both the circumstances where there is written evidence of the usurious interest rate or those circumstances where the transactions themselves must be viewed to determine the usurious amounts. Where the contract terms provide the basis for the determination of usurious interest, Article 5069-1.06 provides that the forfeiture should be twice the amount of interest “contracted for.” Where the transaction itself must be viewed in order to determine the usurious contract, the penalty forfeiture cannot be based on “contracted for” terms and must be based upon twice the amount of interest “charged or received” evidenced by the transaction involved.
Such an interpretation does not preclude the recovery of interest paid in addition to the imposition of the penalty. This interpretation is consistent with the language of the statute read as a whole. Article 5069-1.06(2) provides for penalties where the interest rate charged is in excess of double the amount of interest legally allowed under the Act. In describing the penalty, Subsection (2) provides “all principal as well as interest” shall be forfeited. The use of the term “as well as” indicates that the forfeiture of interest has previously been authorized in the statute. If this section were the sole basis for the refunding of the interest, the proper wording would have been “all principal and interest” shall be forfeited. Therefore, such language can be validly interpreted to mean that Subsection (1) already provides for the forfeiture of the interest paid in addition to the penalty imposed therein.
The determination of whether usurious interest paid should be refunded under Article 5069-1.06 should be interpreted consistently with this court’s writing in Wall v. East Texas Teachers Credit Union, supra, in which the court stated:
“A penalty of twice the amount of usurious interest contracted for is not effected if Wall, the obligor, is required to pay the usurious interest. In such event the forfeit in his favor is not twice the interest contracted for, but only once. Unquestionably, the terms of the statute demonstrate the legislative purpose that as to interest a usurious contract is unenforceable.” 533 S.W.2d 918 at 921.
The majority attempts to confine the holding in Wall to the narrowest view of its facts. To do so is to overlook the unambiguous holding of this court in Wall that a usurious contract is completely unenforceable as to interest. In the instant case, however, the majority in effect actually enforces the partial validity of the usurious contract; that is, to the extent that the borrower has voluntarily paid the usurious interest.
This writer would hold that the statute adequately provides the basis for the refunding of the usurious interest paid, as well as the imposition of the legislatively provided penalty. However, the majority holds that even if Mrs. Miller were entitled to a refund under the statute she did not plead for such a refund and, therefore, cannot recover the interest paid. Mrs. Miller’s failure to seek such a refund should not preclude a judgment awarding her the usurious interest paid. Article 5069-1.06 is written in mandatory language, stating that where usurious interest is charged the lender “shall forfeit to the obligor.” Mrs. *581Miller’s burden is to establish the existence of a usurious contract. Once this element is proven the courts are mandated to enact the penalty provisions of the statute; the forfeiture provisions are specifically for the court to determine and to enforce.
In the instant case no valid reason is given by the majority for permitting the lender to retain the usurious interest received. Mrs. Miller, the borrower, is entitled to and should be refunded all usurious interest paid in addition to the legislatively required penalty of twice the contracted interest rate which was found to be usurious. This result is clearly in line with the legislative intent, the law of usury, and equitable enforcement of the statute as reflected in the Wall decision. This writer would affirm the judgment of the court of civil appeals.
STEAKLEY and McGEE, JJ., join in this dissent.