Untitled Texas Attorney General Opinion ( 1962 )

THE ATTORNEYGENERAL
OF TEXAS
AUSIW aa, TEXAS
FVILJi WILSON
*-ITo- GENERAL October 16, 1962
Mr. Jerry Dellana Ooinion No. NW-1450
County Attorney
Travis County Courthouse Re: (1) Whether a corporation
Austin, Texas selling motor boats or
sporting goods, consist-
ing of articles not
specifically mentioned in
Article 286(a) V.P'.C.,is
prohibited from selling
same on Sunday.
(2) Whether Article 2&6(a)
applies to two separate
corporations desiring to
remain open on different
days -- one Saturday and
and one Sunday -- when
eighty (&OS) per cent of
the stockholders of the
corporations are the
Dear Nr. Dellana: same, and related questions.
You have requested an opinion of this office on the following
questions.
lo "1s a corporation selling motor boats or
sporting goods articles not specifically mentioned
in Article 286[a), V.A.P.C,, prohibited from selling
same on Sunday?"
2, "If two stores are incorporated separately
under different names in the Stat,eof Texas, but over.
eighty (80%) per cent of the stockholders are the same
persons, are they considered,a chain store and, there-
fore, required to close the same day under Article
286(a), V.A.P,C., if said stores sell specific articles
mentioned therein? Under the same facts, if they are
not selling specific articles mentioned under Article
V.A.P.C., what would be the results under
2Et6'(aj,
Article 286?!'
Mr. Jerry Dellana, Page 2, (W-1450)
Section 5;aof Article 286(a), Vernon's Penal Code, provides
as follows:
"It is the intent of the Legislature that
Articles 286 and 287 of the Penal~Code of Texas
are not to be considered as repealed by this
Act; provided, however, that the provisions of
said Articles shall not apply to sales of items
listed in Section 1 of this Act which are for-
bidden to be sold on the day or days named in
this Act."
Article 286, Vernon's Penal Code, provides in part as
follows:
"Any merchant, grocer, or dealer in wares or
merchandise, or trader in any business whatsoever,
or the proprietor of any place of public amusement,
or the'agent or employee of any such person, who
shall sell, barter, or permit his place of business
or place of public amusement to be open for the pur-
pose of traffic or public amusement on Sunday, shall
b,,el;;;;d
not;less than twenty nor more than fifty
eooe
Article 286(a), Section 1, Vernon's Penal Code, provides
as follows:
"Any person, on both the two (~2)consecutive
days of Saturday and Sunday, who sells or offers
fox sale or shall~compel, force or oblige his em-
ployees to sell any clothing; clothing accessories;
wearing apparel; footwear; headwear; home, business,
office or outdoor furniture; kitchenware; kitchen
utensils; china; home appliances; stoves; refrigera-
tors; air conditioners; electric fans; radios; tele-
vision sets; washing machines; driers; cameras; hard-
ware; tools, excluding nonpower driven hand tools;
jewelry; precious or semi-precious stones; silverware;
watches; clocks; luggage; motor vehicles; musical
instruments; recordings; tOyB, excluding items CUS-
tomarily sold as novelties and souvenirs; mattresses;
bed coverings; household linens; floor coverings;
lamps; draperies; blinds; curtains; mirrors; lawn
mowers or cloth piece goods shall be guilty of a
misdemeanor, Each separate sale shall constitute
a separate offense."
Article 287 exempts certain businesses and de,alersas to sales
made by them before nine (9:OO) a-m,, and the sales of,certain
Mr. Jerry Dellana, Page 3 (WW-1450)
other products, materials and services. The exempted items,
however, do not cover motor boats or sporting goods. We
therefore, concur in your conclusion that, inasmuch as motor
boats are not specifically mentioned in Section 1 of Article
286(a), Article 2&6 applies and under the terms of Article 286,
motor boats cannot be sold on Sunday.
As to sporting goods, a different interpretation would apply.
The term "sporting goods" covers a variety of items, i.e. hunting
jackets, caps, fishing waders, tennis shoes, track shoes, foot-
ball equipment including helmets, jerseys, tennis rackets, golf
supplies, etc. Insofar as sporting goods falls into the category
of "clothing", "clothing accessories", "wearing apparel", "foot
wear", "head wear" or other enumerated items in Section 1, Article
286(a) would apply and the merchant may choose whether or not
he will sell these items on Saturday or Sunday as long as he
does not sell these items on the two consecutive days of Saturday
or Sunday.
This office has held, in Opinion No, WW-1333, that guns and
ammunition are included in the definition of "hardware", one of
the enumerated items of Article 286(a), Vernon's Penal Code. A
copy of that opinion is attached hereto. Therefore, insofar as
the terms sporting goods includes guns and ammunition, these items
fall within its provisions. Other individual sporting good items
not covered in the enumeration of items listed in Section 1 of
Article 286(a) would be covered by Article 286 unless exempted
I@. Jerry Dellana, Page 4 (WW-1450)
by Article 287.
In your second question, you inquire whether two separately
incorporated stores would be covered under Article 286(a), Vernon's
Penal Code, where the stockholders of the separate corporations
include eighty (80%) per cent of the same stockholders in each
corporation. Section 1 of Article 286(a), quoted above, applies
to "any person", and provides that a violation thereof is a
misdemeanor offense. This section cannot apply to corporations,
as corporations cannot be tried under the criminal laws of Texas.
14 Tex. Jur.2d 538, Corporations, Sec. 448. We, therefore, hold
that the provisions of Section 4 of Article 286(a) apply to
corporations. However, each of the corporations is a separate
legal entity and under the provisions of Article 286(a), each is
entitled to decide whether to stay open on Saturday or Sunday, so
long as the particular corporation does not stay open on the
consecutive days of Saturday or Sunday, and so long as Section 1
is not violated by any "person". Had the Legislature intended to
provide for the inclusion of separate stores as a single entity
if owned by any particular single group of stockholders they could
have so provided as they did in Article 17.06 of Title 122a,
Taxation-General, Vernon's Civil Statutes. Where the store sells
items not enumerated in Section 1 of Article 286(a), Vernon's
Penal Code, Article 286, Vernon's Penal Code, would apply and
under that article such sales could not be made on Sunday in any
event by either corporation.
Mr. Jerry Dellana, Page 5, w-14501
SUMMARY
Article 286(a), Vernon's Penal Code, does not
cover the s,aleof motor boats but such sale of
motor boats is covered in Article 286, Vernon's
Penal Code, and motor boats under that Article
cannot be sold on Sunday.
Article 286(a) does not include "sporting
goods" as such. However, individual sporting good
items may be included, i.e. wearing apparel, tennis
shoes, hunting jackets, guns and ammunition, etc.
Items not included by the enumeration in Section
1 of Article 286(a) fall under the provisions of
Article 286 and cannot be sold on Sunday.
Two separately incorporated stores owned
eighty(80%) per cent by the same stockholders but
twenty (20%) per cent by individual separate
members of the public fall within the provisions of
Article 286(a). However, such corporations are
individual entities and insofar as they sell articles
enumerated in Section 1 of Article 286(a), they can
separately choose to stay open on either of the
consecutive days of Saturday or Sunday. Where such
corporations sell articles not enumerated in Section
1 of Article 286(a), they are subject to Article 286,
Vernon's Penal Code, and cannot sell these items on
Mr. Jerry Dellana, Page 6, (wkl450)
Sunday unless such items are exempt by
Article 287.
Yours very truly,
BY
Assistant Attorney Generqif
NVS:sm
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
Pat Bailey
Iola Wilcox
Gordon Zuber
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore