c 

Q,F XAS 

Honorable Frank Briscoe 

District Attorney 

Harris County 

Houston, Texas 

‘Opinion No. WW-1077 

Re: Whether an agent or employee of 

a corporation can be held liable 

for violation of Article 286, 

Vernon's Penal Code, commonly 

Dear sir: 

referred to a8 the Sunday Closing 

Law. 

We have your letter of April 13, 1961, in which you request 

the opinion of this Department on the above subject. The question you 

have presented is stated BE follows: 

"Can the agent or employee of a corporation be 

liable for violation of Article 286, V.A.P.C., 

commonly referred to.as the Sunday Cloeing Law?" 

Article 286, Vernon's Penal Code, as now codified, has its 

origin in Acts 1871 and was amended in 1883 and again in 1887. We 

find no amendments to the article since 1887. The act reads a8 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 employe [aicl of any such person, who shall sell, 

barter, or permit his place of business or place of 

public amusement to be open for the purpose of traffic 

or public amusement on Sunday, shall be fined not less 

than twenty normore than fifty? dollars. The term 

place of public amusement, shall be construed to mean 

circuses, theaters, variety theaters and such other 

amusements as are exhibited and for which an admission 

fee is charged) and shall also include dances at dlsorderly houses, low dives and places of like character, 

with or without fees for admission." 

The Sunday laws are constitutional. Clark v. State, 319 S.W.Pd 

726 (Tex.Crlm. 1959). Accord, McGowan v. Maryland (U.S. Sup. Opinions 

delivered May 29, 1961, not yet reported). 

This Article as to Sales tiy merchants is constitutional. g 

parte Sundstrom, 8 S.W. 207 (Tex.App. 1888) and Is not class legislation. 
Hon. Frank Briscoe, Page 2 (WW-10i"i') 

Searcy v. State, 50 S.W. 699 (Tex.Cr#. 1899). Also the act is not unconstitutional as granting special privileges. Sayeg v. State, 25 S.W.2d 

865 (Tex.Crim. 1930). 

Prohibiting the house to be "open", as used in the statute, means 

that the house should be closed against all traffic. Whitc,omb v. State, 

17 S.W. 258 (Tex.App. 1891). 

"Traffic" as used herein is defined clearly in the case of Levlns 

v. State, 34 S.W. 969 (Tex.Crim. 1896). The court held, in a prosecution 

for keeping opena liquor saloon for traffic on Sunday, that the lower 

court corre,ctly charged that, if the jury believed defendant kept his 

saloon open for the purpose of "traffic" on Sunday he should be convicted, and that the term traffic as employed has its usual and commonly 

accepted meaning and that no further definition of the word "traffic" was 

necessary. 

Your question would be resolved if the words "agent or employee 

of any such person", as they appear in Article 286, V.P.C., should be 

construed to include "agent or employee" of a corporation. The contention made by others, as stated in your letter, is,that the agent or 

employee of a corporation is not the agent or employee of a "person". 

In the construction of a statute, the legislative Intent must 

govern. Article 23, C.C.P., provides as follows: 

"The provisions of this Code shall be liberally 

construed, so as to attain the objects intended by 

the legislature: The prevention, suppression and 

punishment of crime." 

Article 7, V.P.C., supplies the general rules of construction 

as follows: 

"This Code and every other law upon the subject of 

crime which may be enacted shall be construed according to the plain import of the language in which it is 

dltten, without regard to the distinction usually made 

between the construction of penal laws and laws upon 

other subjects; and no person shall be punished for an 

offense which is not made penal by the plain import of 

the words of a 1aw.s 

One of the rules establishes the following: 

"It is presumed that the Legislature intended that 

its enactments should conform to the requirements of 

the Constitution, and that, with all their provisions, 

they should have effect and be enforced. The legis- 
Eon. Frank Briscoe, Page 3 (WW-1077) 

lative intention is presumed to be according to 

what is consonant with sound reason and 'good dlscretion'. Thus, it is not presumed that the Lsgislatun intended to do or require an absurd, foolish, 

impossible, unfair, unjust, unreasonable or useless 

thing." 39 Tex.Jur. 245, Statutes, Sec. 131. 

The case of Gould v. State, 134 S.W. 695 (Tex.Crlm. 1911), was 

one in which the "agent or employee" of a corporation was charged on 

an information for violation of the Sunday law. The cause was reversed 

and remanded because of failure of the State to prove, by proper means, 

that the amusement company was the owner. The court, among other things, 

stated that an information alleging that accused, as agent and employee 

of the proprietor of a theater, permitted a theatrical performance to be 

given on Sunday, to which a fee was charged for admission, charges an 

offense. In Its conclusion the opinion says: 

"The court did not err in overruling the motion to 

quash the information and complaint, as It charged an 

offense under the law, and the court did not err in 

admitting the testimony of the witnesses Laws and Cullum in testifying to what was taking place in the building on the occasion; but, on account of the error hereinbefore pointed out, the cause will be reversed and remanded." (Emphasis added.) 

It is submitted that the Court of Criminal Appeals has decided 

the question of the amenability of an agent and employee of a corporation 

to the operation of Article 286, V.P.C., by its plain use of the word 

corporation. 

Oliver v. State, 144 S.W. 604 (Tex.Crim. 1911), is a case in 

point where the agent and employee of a corporation was charged on a 

complaint and information for unlawfully opening a theater contrary to 

the "Sunday Closing Law." Although Oliver was the agent and employee 

of a:corporation, the court affirmed the conviction. The opinion discusses at length statutory construction and intent of the Legislature. 

We will quote only a portion thereof. The court, after discussing the 

rules of construction of a penal statute stated at page 611: 

"Of course; all these rules, wherever used in the 

interpretation of statutes, are used and applied solely 

,for the purpose of determining what was the intention of 

the Legislature in the use of the words and the language 

as used by it In the enactments for, as was aptly said 

by our Supreme Court, through Chief Justice Gaines, in 

Edwards v. Morton, 92 Tex. 153, 46 S.W. 792, and reiterated by this court in Parehall v. State, 138 S.W. 

759, and other cases: 'The intention of the Legislature 

in enacting a law is the law itself.'" 
Hon. Frank Briscoe, Page 4. (WW-1077) 

In quoting from Sections 349, 350 of Sutherland on Statutory 

Construction the court, in the Oliver case, said: 

n'. . .It is said that, notwithstanding this rule, 

the intention of the lawmaker must govern in the construction of penal as well as other statutes. This is 

true. But this is not a new independent rule which subverts the old. It is the modification of the ancient 

maxim, and amounts to this: That, though penal laws are 

to be construed strictly, they are not to be construed 

so strictly as to defeat the obvious intention of the 

Legislature. . .I" (Emphasis added.) 

Further quoting from Sutherland at Section 415 the court repeated: 

IV t . . .The modern doctrine is that to construe a 

statute liberally, or according to its equity, is nothing 

more than to give effect to it according to the intention 

of the lawmaker, as indicated by its terms and purposes. 

This construction may be carried beyond the natural import of the words when essential to answer the evident 

purpose of the act; so it may restrain the general words 

to exclude a case not within that purpose. 

II 

. . .Liberal .Liberal oonstruction oonstruction of any statute statute consists consists in 

giving the words a-meaning a-meaning which renders renders it more effectual effectual 

to accomplish accomplish the purpose purpose or fulfill fulfill the intent which it 

plainly discloses. For this purpose, purpose, the words may be 

taken in their fullest fullest and most comprehensive comprehensive sense. Where 

the intent of the act Is manifest, manifest, particular particular words may 

have an effect quite beyond their natural natural signification signification 

in aid of that intent.'" intent.'" (Emphasis (Emphasis added.) added.) 

There are many other rules for the interpretation of statutes to 

aid in ascertaining the true intention of the Legislature. In the Oliver 

case, supra, it is said: 

"This court, through'Judge Davidson, in Yakel v. State, 

30 Tex.App. 394, 17 S.W. 944, 20 S~XW. 205 said: 'Statutes 

should be so construed so as to prevent mischievous consequences. Such construction finds itself supported In the 

good order of society, protection of the weak against the 

strong, and should be favored, and more especially if such 

a construction be in opposition to one that would tend to 

bring about evil results, People v. Garrett, [68 Mich. 4871 

36 N.W. 2349 Hoemes v. State, 88 Ind. 145; Am. & Eng. Encyc. 

of law, p. 702, note 2. The purpose and object of the Leglslature in enacting the statute being known, it Is the duty 

of the court to so construe it as to conform to that Intent 

and carry out such purpose."' 
Hon. Frank Briscoe, Page 5 (ww-1077) 

In construing the original Article 186 (now 286) of the Penal 

Code of 1879 the court in Albrecht v. State, 8 Tex.App. 314, (1880) in 

an opinion by Justice Clark, 6al.d: 

"The obvious intention of the Legislature, as manifested in Article 186 (now 199) of the ! Penal Code. was 

to prevent altogether the barter and sale of merchandise on Sunday, and to prohibit all merchants, grocers, 

dealers in wares or merchandise, or traders in any lawful business whatever, from desecrating the Sabbath, 

and distracting with their avocations the peace and 

quiet of other portions of the community who might 

desire, from religious or other consideration to devote 

the day to worship of God, and to entire rest from their 

_ daily employments. This purpose, so manifest, cannot be 

_ __. . ^ _ ^ alsregaraeo in tne searcn ror a proper rule ror construction, but must be given effect to, unless qualified 

or restricted by some potent provision of law rendering 

a contrary construction imperative." (Emphasis added.) 

Further, .in:the Oliver case, supra, (144 S.W. at page 616) the 

following is present: 

"Under these various enactments of the Sunday law, 

and how they were added to from time to time, retaining 

at all times after the first insertion the words 'or the 

agent or employ= [sic] of any such person', it is clear 

to us that we reached and announced the correct interpretation of the present statute in the original opinion 

herein. We cannot agree to appellant's contention that 

the agent or employe is not amsnable under this statute, 

unless such agent and emulove has the Dower and authorits 

from the prop;ietor of the theater to open or close it. - 

The very use of the words 'agent' or 'employe' and 

especially of the word 'amploye', taken in connection 

with out statute on the subject of principals, indicates 

clearly and without doubt to us that the Legislature intended that whoever permitted the theater to be open, 

rhenn entrance fee was charged, 

act in aid thereof, was amsnable t 

*phasis added.) 

It is to be pointed out that the prohibition In the article is 

imposed upon those individuals actually engaged in or responsible for 

the violations and not the corporate entity as such. 

The Court of Criminal Appeals in the case of Brockman v. State, 

28 S.W.2d~ 820 (Tex.Crim. 1930), reversed the decision of the trial court 
-. 

Hon. Frank Briscoe, Page 6 (WW-1077) 

because the complaint and pleadings did not sufficiently identify for 

whom the accused was agent or employee and stated, in part, as follows: 

"The Legislature having written in this statute 

that persons who are agents and employees, and attempted to be penalized as such for keeping a place 

of public amusement open on Sunday, must be characterized in the state's pleading as thegents and 

employees of some private person, or else agents and 

employees of some firm, corporation, or company . . . 

"Appellants may be guilty, and may be guilty as 

agents and employees, but the indictment should state 

the person, firm, or company by whom they were employed, 

in order to measure up to the requirement of Article 286, 

supra." (Emphasis added.) 

One of the most interesting cases in point is that of U.S. v. 

Union Supply Co., 215 U.S. 50 (1909), wherein the court stated: 

"The words 'wholesale dealers' are so apt to embrace corporations here as they are in section 2, requiring such dealers to pay certain taxes. We have no 

doubt that they were intended to embrace them. The - 

words 'any person' in the penal clause are as broad as 

'wholesale dealers' in the part prescribing the duties. 

U. S. Rev. Stat. Sec. 1. It is impossible to believe 

that corporations were intentionally excluded. They 

are as much,.within the mischief aimed at as private 

ersons,~ and as capable of a wilful breach of the law." 

Emphasis added.) 

Uniformly it is held that a statute of a general nature of the 

character of the one under consideration includes corporations. 

"Under a statutory provision, a corporation is a 

'person' within the meaning of that term as used In 

the constitutional and statutory provisions. More 

particularly, a corporation has been held to be included in the word 'person' as used in the statutes 

relating to the venue of actions, limitations and 

death by wrongful act." 10B Tex.Jur. 64. 

"Persons are divided by the law into persons natural 

and persons artificial. The term 'person' prima facie 

at common law and apart from any statutory enactment 

limiting its meaning, Includes both natural and artificial 

nersons. and therefore as a general rule includes cornorations:" 13 Am. Jur. 164. State v. Natelson Bras.,-32 

A.2d 581 (C.C.A. 1943)a 
-. . 

Bon. Frank Briscoe, Page 7 (WU-1077) 

"Corporations are to be deemed and considered as 

persons when the circumstances in whfCh they are 

placed are identical with those of natural persons 

expressly included in statute . . . and the word 

'person' in a statute, though penal, which is intended to inhibit an act means 'min 

. . . and therefore includes corporations If they 

are withinthe spirit and purpose of the statute." 

13 Am.Jur. 166.; ~(Rnphasls added.) 

,"Word 'person' in Oklahoma statute authorizing 

person paying usurious interest to recover twice 

amount paid, includes corporations." General Motors 

Acceptance Corp., v. Mid-West Chevrolet Co., -2d 

1, 8. 

,From the opinion in the case of Central Amusement Co. v. Dietrict of Columbia, I.21 A.2d 865, (Ct. of App. 1956), we find that the 

statutory use of the word “person” to include corporations is so general 

that to hold 'corporations are not included requires clear proof of legislative intent to exclude them. 

18 C.J.S., 

13 Am.Jur. 166, Corporations, Sec. 11; 

p. 386-387, Corporations, Sec. 8. 

We must look to the classification created, which would result 

should the "agents and employees" of natural persons be subject to the 

,penalties of Article 286, and the "agents and,employeee" of corporations 

be exempt therefrom. The singling out of certain businesses as exemptions 

where the facts remain that there is no rationable difference which necessarily distinguishes the two operations, would constitute an unreasonable 

and arbitrary classification discriminating against nome by granting 

immunitiee to one of the classes to the exclusion of others. If such be 

the construction placed upon the artiole, it would ,olearly be unconstitutional. 

The Legislature intended that the act would conform to the Constitution and we believe that it &es. Therefore, it is our opinion that 

the word "pen!on" includes corporations and the "agents and employees" 

of a corporation are subject to the penalties provided in Article 286, 

V.P,C. 

We concur with your conolusion as stated in your able supporting brief. 

The penalties provided in Article 286, V.P.C., 

apply alike to "agent and employee" of a corporation or other artificial person as It does to 

the "agent or employee" of a natural person. 
. . 

Hon. Frank Brimcoc, Pam 8 (VU-~) 

Your. very truly, 

WILL uIIso11 

Attorney General of Texae 

APPROVED: 

OPINION COMMITTEE 

W. Q. Gbl)peti, Chairman 

Jerry Roberts 

Iola Wilcox 

William E. Allen 

htrcnce Eargrove 

REVIEWEDFORTRE~ GwHlAL 

BY: Morgan Nesbitt 

Harris Toler 

Aeaistant Attorney Qencrel