MARK WHITE

Attorney General

701 Commsra. Suite 2W oaow. TX. 75x?? zww&sm4 

# The Attorney General o,fTexas Nay 9, 1979

HonorableJackie L. Vaughan OpinionNo. Mw-19 Executive Director Texas AmusementMachineCommission Re: Imposition of penalties P. 0. Pox 13226,Capitol Station respecting the ownership and Austin,Texas 787U operation of coin-operated machines. Dear Mr. Vaughan: Persons responsible for certain acts or omissions respectii the ownershipand use of coin-operated machines subject to taxation are made

. civilly liable III

thesewords: Iviolators shall forfeit to the State es a Penalty, the sum of not less than Five Dollars ($5) nor more than Five .Hundred Dollars ($500). Each day’Bviolation shall constitute a separate offense and incur another penalty, which, if not paid shallbe recovered in a suit by the Attorney General of this State in a court of competentjurisdiction.

. . . V.T.C.S., Tax-Gen., art. 13.11.You ask if it is the responsibilityof the Texas Amusement Machine Commission to impose penalties for violations of the statute, and if the commission has the constitutional authority to promulgate rules establishing specific penalties for each act or omission covered by the statute. A similar statute was construed in Harvill v. State, 188S.W.2d 869 (Tex. Civ. App. - Austin 1945,writ ref ’d). The court said: If the contention is that the rule or regulation of the Comptroller delegates to or authorizes him to exercise legislative or judicial power, it is without merit. The Comptroller neither imposednor assessed the penalty.

. . . Sec. 2 of Art. 7047a-20 authorizes the Comptroller to promulgate rules and regulations to aid him in the collection of all occupation taxes; and Sec. 3 of Art. 7047a-20 provides that anyone

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violating any rule or regulation so promu ated by the Comptroller shall forfeit to the State not less than725 nor more than $500, each day’s violation to constitute a separate offense, to be recovered at the suit of the Attorney General. The Comptroller, as required by Sec. 3 of Art. 7047a-20, certified to the Attorney General the fact that appellantdidnot pay the tax, andthat he had violated Rule 1.

. . . Uponsuch certification of facts the Attorney General instituted this suit for the tax and the penalty, and accordingly recoveredjudgmenttherefor. The rule is settled in this State that the Legislature mayprovide for the.imposition of civil penalties or fines to be assessed by a court of competent jurisdiction for the violation of any legally promulgated rule or regulation of state officials or departments against any person, firm or corporation subject to and violating such rule cr regulation. 188 S.W.Sdat 37l. Article 13.Rdoes not delegate to the commf&on the authority to impose penalties or to fix their amounts. Cf. V.T.C.S., Tax.-Gen., art. 13.12 (criminal penalties). The civil penalties are imposedby the statute ratherthanby the commission. The statute specifies that a violator will incur a penalty in sn amountrangingfrom $5 to $500per day. While the commission may makea recommendation to the court, the assessment of the penalty is left to thejudiciary. SUMMARY

The Texas Amusement Commission has the duty to ascertain, investigate, and report to the Attorney General all violations for which civil penalties are imposedby article 13.R Taxation-General, V.T.C.S., but it has no authority to establish specific penalties for specific violations. The assessmentof penalties in specific cases is left to the courts.

MAEK WHITE Attorney General of ~Texas JOHNW. FAINTER,JR. First AssistantAttorney General TEDL. HARTLEY .Executive AssistantAttorney General I

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Preparedby Bruce Youngblood AssistantAttorney General APPROVED: OPINION

COMMITTEE C. Robert Heath,Chairman DavidB. Brooks Bill Campbell Rick Gilpin WilliamG Reid Bruce Youngblood

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