Untitled Texas Attorney General Opinion ( 1965 )

Honorable R. L. Lattimore Opinion NO. c-462
Criminal Mstrlct Attorney
Hidalgo County Re: Whether a corporation court
Rdinburg, Texas has jurisdiction on a complaint
charging theft of personal pro-
perty of the value of $5.00 or
under, where such property is
stolen from a retail establish-
ment under conditions defined by
Article 1436e, V.P.C. (The Shop-
Dear Mr. Lattlmore: lifting Statute)
You recently requested an opinion of this office on
the following question:
II
. . . /777here. . .property of the
value of $500 or under is taken under
conditions which constitute shoplifting,
/Zs defined in Article 1436e, Vernon's
Penal Code7 may the prosecution be instl-
tuted in Corporation Court under the mis-
$iEanor theft statute, Article 1422, P.
Article 1436e, Vernon's Penal Code, is a special stat-
ute defining the offense of shoplifting. Sullivan v. State,
354 S.W.2d 168 (Tex.Crim. 1962). Article 1422 V 1 Penal
Code, is a general penalty provision of the or&.n~~~hhZtft stat-
ute, Article 1410, Vernon's Penal Code. Under Article 4, Vernon's
Penal Code, a special provision controls over a general provision
on the same subject, if there be a conflict.
"An examination of Article 1436e and
Article 1410 reveals a difference In the
essential elements of each offense. First,
and most Importantly, the Shoplifting Stat-
ute does not require the element of want of
consent essential to a prosecution under
ordinary theft. Further, the Shoplifting
Statute requires that the person be on the
retail business premises legally. Obviously
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Honorable R. L. Lattimore, page 2 (c-462)
no such element is required under ordinary
theft." Attorney General's Opinion W-1478
(1962).
Dy thus comparing the provisions of these articles,
it will readily be found that the elements of the offenses are
quite distinct, while there may be one or more common to ,both,
and that these articles define different offenses. This being
true, there is no conflict which would impair either statute's
validity, and the clear meaning of Section 7 of Article 1436e
would apply, giving the State the right of election between the
offenses in a proper case. This provision of the Penal Code
reads as follows:
Article 1436e, Section 7.
"Sec. 7. Where property Is obtained in
such manner that the acquisition thereof
constitutes both shoplifting and some other
offense, the party thus offending shall be
amenable to prosecution at the state's elec-
tion for shoplifting or for such other of-
fense as may have been committed by him."
Article 1423, Vernon's Penal Code, states that ,Arti-
cle 1422 does not apply to theft of property from the person
nor to cases of theft of any particular kind of property where
the punishment is specially prescribed. Section 3 of Article
1436e provides for special punishment for violation of the Shop-
lifting Act. However, Section 7 of Article 1436e gives the State
the election to prosecute an offending party for shoplifting or
for such other offenses as may have been committed by him. It
is the opinion of this office that if the State elects under
Section 7 of Article 1436e,to prosecute an offending party for
theft under Article 1410, this election would prevent Article
1423 from applying and the punishment for violation of Article
1410 would be prescribed by Article 1422.
Jurisdiction for a violation of Article 1436e would
lie In the County Court or District Court by reason of Section
3 thereof.
Jurisdiction for violation of Article 1410 would lie
in either the Justice of the Peace Court or the Corporation
Court if the property Involved is of the value .of five dollars
or under. Article 60, V.C.C.P.; Article 5, Section 19 of the
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Honorable R. L. Lattlmore, page 3 (c-462)
Constitution of the State of Texas; Article 62, V.C.C.P., and
Article 1195, V.C.S.
The Court of Criminal Appeals:did notrule on the
question presented herein In Sullivan v. State, supra. In the
Sullivan case the State elected t t the accused under the
Shoplifting Statute. Under thesi fa?ts, the Court held:
"It Is apparent that the legislature
Intended to enact a special statute defin-
lng.the instant offense. It /Art. 1436e,
P.C., Shoplifting7 controls oVer the gener-
al statute. firricle 5, Section 19, Texas
Constitution %ind Article 60, C.C.PAF
It is, therefore, the opinion of this office that
where property of the value of $5,00 or under is taken under
conditions which constitute either theft or shoplifting, the
State may elect to try the accused either under the Shopllft-
ing Statute in the County or District Court or under the mis-
demeanor theft statute in the Justice of the Peace or Corpo-
ration Court.
SUMMARY
Where property is obtained in such man-
ner that the acquisition thereof constitutes
both shoplifting and misdemeanor theft of
property of the value of $5.00 or under, the
party thus offending shall be amenable to
prosecution at the State's election for shop-
lifting or for misdemeanor theft. Where the
State elects to prosecute for misdemeanor
theft, jurisdiction of the complaint is in
t&$stlce of the Peace or the Corporation
.
Yours very truly,
WAGGONER CARR
Attorney General of Texas
B9:
Assistant Attorney General
DHC/lh/br
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Honorable R. L. Lattimore, page 4 (C-462)
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Bob Flowers
John Banks
Sam Kelley
Brady Coleman
APPROVED FOR THE ATTORNEY GENERAL
By: T. B. Wright
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