Untitled Texas Attorney General Opinion ( 1960 )

THEATTORNEY GENERAL
OFTEXAS
WI& WILSON
*lTORNEYGENERAL
August 23, 1960
Honorable Henry Wade
Criminal District Attorney
Dallas County
Dallas, Texas
Honorable Monroe N. Clayton, Jr. Opinion No. WW 917
County Attorney
Terry County Re: Liability under Article
Brownfield, Texas 48ga, Penal Code, for a
pistol being sold without
the purchaser having a
certificate of good charac-
ter and for such a certlfi-
cate not being kept with the
permanent records of the
Gentlemen: dealer.
This opinion is issued in response to your request for anwem to the
following threesquestions:
(1) May a person be prosecuted under Article 489a, Penal
Code, for purchasing a ptistolwithout having a certi-
ficate of good character?
(2) May a person be prosecuted under Article 4898, Penal
Code, for selling a pdtol to an adult who is not under
the heat of passion, but who does not have a certificate
of good character?
(3) May a person be prosecuted under Article 489a, Penal
Code, for not keeping with the permanent records of
the dealer the certificate of good character of the
purchaser of a pistol?
To each of the three questions asked a negative answer must be given on
the basis of the opinion of the Court of Criminal Appeals of Texas in Doucette v.
State of Texas, 317 S.W.2d 200 (Tex.Crlm.App. 1958).
Hon. Henry Wade and Hon. Monroe N. Clayton, Jr., Page 2 (~~-917)
The Court in the Doucette case, which involved the sale of a pistol
to a minor, stated in part as follows:
". a . [The contention is made] that the captionof
Article 48% does not contain sufficient notice that the
act itself prescribed a penalty for the sale of a pistol
to a minor and is therefore invalid by virtue of Article
III, Section 35, Constitution of Texas. . .
"We have examined the caption of Article 489a in the
light of such contention and fail to find therein any
Intimation that the act itself purported to legislate
upon the offense here involved. We find therein no man-
tion of minors and agree with the . . . contention."
Article III, Section 35, Constitution of Texas, Vernon's Ann. Texas
stat.) to which the opinion referred, states in part as follows:
"No bill . . . shall contain more than one subject, which
shall be expressed in its title. But if any subject shall be
embraced in an act, which shall not be expressed in the title,
such act shall be void only as to so 'muchthereof, as shall not
be so expressed."
The Court in the Doucette case thus found that the subject of an offense
committed by selling a pistol to a minor was not embraced in the caption of Article
4@*, Penal Code, or, in the wording of the Constitution, such subject was not em-
braced in the title of the bill in which Article 48ga was included as Section 4,
that is, H. B. NO. 514, Acts of 42nd Leg. Reg. Sess., 1931, Chap. 267, page 447.
H. B. No. 514 also included other sections which provided for an occupation tax
and license for those dealing in pistols for profit, the keeping of records, and
other matters.
Article &@a (as Section 4 of H. B. No. 514 shall be designated hereinafter
in this opinion) states *s follows:
"If any person shall knowingly sell, rent, or lease any
pistol to a minor, or any other parson under the heat of passion,
he shall be guilty of a misdemeanor, or, if any person violates
any of the provisions hereof, he shall be guilty of a misdemeanor,
and upon conviction, punished by a fine of not less-,.than
ten dollars
($10) nor more than two hundred dollars ($200), provided that no per- '
son may purchase a pistol unless said purchaser has secured from a
justice of the peace, county judge, or district judge, in the county
of his or her residence a certificate of good character. Said certi-
ficate to be kept with theipermanent record of the dealer. No person
may purchase a pistol who has served a sentence for a felony.
"Nothing in this bill shall affect the law against carrying
pistols."
Hon. Henry Wade and Hon. Monroe N. Clayton, Jr., Page 3. (W-917)
The caption of H. B. No. 514, the bill which included Article 48ga,
states as follows:
*An Act imposing an occupation tax on certain persons
engaging in the business of selling and otherwise disposing
of pistols, as herein defined; providing for the obtaining
of licenses by such persons; authorizing counties and muni-
cipalities to impose a tax; providing for the keeping of
records; prescribing conditions incident to the sale of pls-
to18 under named conditions and providing the Act shall not
affect the law relating to the carrying of pistols; E-
scribing offenses and fixing puni8hment8; repealing Article
7068; making exceptions, and declaring an emergency."
(Emphasis added).
Article 489a, as observed from its text, provides in part that a person.
shall be guilty of a misdemeanor:
(a) if he sells a pistol to a minor,
(b) if he sells a pistol to an adult under the
heat of passion,
(c) if he buys a pistol without securing a
certificate of good character, or
(d) if he fails to keep with the pe-ent records
of the dealer the certificate of good character
of the purchaser of a pistol.
Consideration of the caption of H. B. No. 514, particularly those parts
underlined above, results in the conclusion that each of the misdemeanors described
in the previous paragraph of this opinion is to an equal extent either embraced or
not embraced by the caption of the bill. Certainly each of the misdemeanors is
equally a prescribed "offense", and certainly it is just as much a prescribed "con-
dition incident to the sale" of a pistol that a buyer must be an adult, as that he
must not be undei'the heat of passion and must have a certificate of good character.
Since the Court in the Doucette aase has held that prohibiting the sale'
of a pistol to a minor is not embraced by the caption'of H. B. No. 514 and there-
fore,th& such provision of Article48ga is invalid, the same reaeod&g~nantt
necessarily apply to those other acts prohibited by Article 48ga concex%ing::whSch
this option was requested, since all have the same etatus as regards the caption.
With regard to the requirement that the certificate of good character of
a purchaser be kept with the permanent records of the dealer, the obvious purpose
of the Legislature ih so requiring was to provide a means of enforcing the initial
requirement&hat a purchaser of a pistol have such a certificate, that is, a means
of sg> when a violation of the inttial requirement had occured.
Hon. Henry Wade and Eon Monroe I. Clayton, Jr., Page 4 (W-917)
Since the initial requirement that a purchaser have a certificate of
good character is not valid on the basis of the opinion in the Doucette case,
the requirement that such a certificate be kept after the sale cannot stand by
Itself.
The Legislature, despite running afoul of Constitutional requirements
concerning the contents of bills, must have believed that purchases by persons of
good character were proper while purchases by others were not. Yet, to now find
valid the requirement of Article 48% that such a certificate be kept, while
finding Invalid the Initial requirement itself, would:have the absurd result of
creating an offense after a sale to a person who unnecessarily provided a certi-
ficate of his good character, but affecting in no way a sale to a person who did
not or could not provide such a certificate.
Therefore, the requirement that the certificate of good character of a
purchaser be kept with the permanent record of the dealer must be considered as
being merely a part of the initial requirement that a purchaser have such a certi-
ficate, and, as such, both requirements are invalid on the basis of the opinion in
the Doucette case.
A person may not be prosecuted under Article 48ga, Penal Code,
for purchasing a pistol without having a certificate of good
character.
A person may not be prosecuted under Article 489a, Penal Code,
for selling a pistol to an adult who is not under the heat of
passion, but who does not have a certificate of good character.
A person may not be prosecuted under Article 48ga, Penal Code,
for not keeping with the permanent records of the dealer the
certificate of good character of the purchaser of a pistol.
Yours very truly,
WILL WILSON
Attorney General of Texas
By:&&4 D.-T
Charles D. Dabaniss
Assistant Attorney General
APPROVED
OPINION COMMITTEE
Ii. V. GEIPPERT,Chairman
Dean Davis PxBVIhWRDBORTBEATTORNBY GEWERAL
,Bi.E~X!iaimQ-~,Jr. BY: Leonard Passmore
Henry Braswell
Marvin Brown