E u GENE

WILL WILSON *TTORNEYGENERAL

November 6, 1961

Honorable R. L. Lattimore OpinionNo. w-1187 Criminal DistrictAttorney Edinberg, Texas Re: Whether trucks operating out of a warehouse accepting orderswhich are delivered to the fish dealer's wholesale house and making deliveries to purchasers from thewholesale house are required to each have a Dear Mr. Lattimore: fish dealer's license.

You have requested an opinion from this office on the followingmatter:

"Awholesaler operateshis wholesale house in a certain city in this county,where he makes wholesale sales of aquatic products, andwhich is coveredby a wholesale Fish Dealer's License. The wholesaler also owns and operates severaldelivery trucks, from which no sales of fish aremade. The drivers of the trucks, operating from the trucks, takewholesale orders for aquatic products and turn the orders in to the wholesale house. The orders are never filled direct from the trucks at the time the orders are taken.All orders go to the wholesale house for filling. The delivery trucks and their driversperform only two functions, first, that ofmaking deliveries from orders turned in to thewholesale house, and second, that of taking orders."
You have asked this office if thewholesalermust have a Fish Dealer's License on each of the delivery trucks, and if so,what kind of licensemust he have. The followingprovisions of Article g++a,Vernon's Penal Code of the State of Texas applies to theproblem presented:

"Section 1. The followingwords, terms and phrases used In this Act are hereby defined as follows!HonorableR. L. Lattimore Page 2 OpinionNo. ~~4-1187

(b) A 'WholesaleFish Dealer' is any person engaged in the business of buying for thepurpose of selling, canning,preserving or processing, or buying for the purpose of handling for shipmentsor sale, fish or oysters or shrimp or other commercial edible aquaticproducts, to Retail Fish Dealers, and/or to Hotels, Restaurants or Cafes and to the Consumer. (c) A 'RetailFish Dealer' is any person engaged'in the business of buying for thepurpose of selling either fresh or frozen edible aquaticproducts to the consumer. "Section 3. The licensesand the fees to be paid for the same are hereby provided for in thisAct and are as follows: 2. Wholesale Fish Dealers' License, fee for each ilace of business, Two Hundred Dollars ( 200). 2-a. Wholesale Truck Dealers' License, fee for each truck, One Hundred Dollars cy * Place of business, as used in this Act,'shall include the place where orders for aquaticproducts are received, or where aquaticproducts are sold, and if sold from a vehicle, the vehicle on which, or from which such aquaticproducts are sold, shall constitute a place of business."
It is the opinion of this office that the taking of orderswhich are taken to thewholesale house and the deliveries of the aquaticproducts from thewholesale house to a purchaser are not sufficient functions to create a sale in themselves. Therefore, thewholesale house is the only "place of business" as defined in Article 934a Sections 3-11 and only one.wholesale licensemay be required. Since there are no actual salesmade from the trucks, they are not required to have a separate license.

SUMMARY

Trucksmaking deliveries from and acceptingHonorableR. L. Lattimore Page 3 OpinionN
.~~-1187

orders for a fish dealer'swholesale house are not required to be individually licensed.
Yours very truly,
WILL WILSON Attorney General of Texas

# dhdLbLBYJ. T. Walker AssistantAttorney General JTN:sh
APPROVED:
OPINION COMMITTEE W. V. Geppert, Chairman Joseph Trimble Elmer McVey Riley Fletcher
REVIEWED FOR THE ATTORNEY GENERAL BY: Houghton Brownlee,Jr.