THEATTORNEY GENERAL 

OF 7lITExAs 

Honorable J. N. Nutt Opinion No. C-222 

Commissioner of Insurance 

1110 San Jaclnto Re: Whether out-of-state 

Austin, Texas manufacturers, distrlbutors and jobbers are 

required to obtain Iitenses pursuant to Section 

5 of Article 1725, Vernon's Penal Code, and 

Dear Mr. Nutt: related questions. 

You have requested an opinion of this office covering 

several questions pertaining to administering and enforcing the 

provisions contained In Senate Bill No. 143, Acts 55th Legislature, 

Regular Session, Chapter 498, page 446, codified as Article 1725, 

Vernon's Penal Code. You point out that the responsibility of 

administering and enforcing this Act is placed upon the State 

Fire Marshal, and that the Commissioner of Insurance is designated 

as State Fire Marshal by Article 1.09 of the Texas Insurance Code. 

An examination of this Act indicates it has as Its 

general purpose the regulation of fireworks within this State. 

It is quite comprehensive and you have asked several questions 

concerning various provisions that might tend to burden lnterstate commerce. As a prerequisite to answering your questions, 

therefore, an evaluation of the power of this State to adopt 

such an act is outlined. 

The storing, handling, and use of inflammable and 

explosive substances, being attended with danger, may be regulated under the police power. Thus the explosion of fireworks 

may be prohibited; and a law prohibiting, except in certain cases, 

the sale, offering, or exposing for sale and use, of fireworks 

must be interpreted in the light of its general purpose, which is 

the protection of the health, 

35 C.J.S. 248. 

safety, and general welfare of the 

public. 

Congress has recognized that the regulation of fireworks is of individual concern to each State. It has acted to 

strengthen and preserve unto the several states the right to 

regulate fireworks by providing as follows: 

-1070- 
. 1 

Hon. J. N. Nutt, page 2 (C-222) 

"Whoever, otherwise than in the course 

of continuous interstate transportation through 

any state, transports fireworks into any state, 

or delivers them for transportation into any 

state, or attempts so to do, knowing that such 

fireworks are to be dellvered, possessed, stored, 

transhlpped, distributed, sold, or otherwise 

dealt with in a manner or for a use prohibited 

by the laws of such state specifically prohibiting 

or regulating the use of fireworks, shall be fined 

not more than $l,OOO.OO or imprisoned not more 

than one year, or both. 

"This section shall not apply to a common 

or contract carrier or to International or 

domestic water carriers engaged in interstate 

commerce or to the transportation of fireworks 

into a state for the use of Federal Agencies 

in the carrying out or the furtherance of their 

operation. 

"In the enforcement of this section, the 

definitions of fireworks contained In the laws 

of thfi respective states shall be applied, 

. . . Title 18, Sec. 836, U.S.C.A. 

This enactment of Congress is ample evidence that the right 

to regulate fireworks clearly remains in the several states. 

It follows that this State is authorized to provide for reasonable regulations of fireworks. 

The questions you have asked concerning Article 1725 

are based upon an assumption that at the time.agreements for 

the sale and purchase of the fireworks were entered into it was 

the intention of the parties that the fireworks in question would 

be held for resale or for further distribution and ultimate retail 

consumption or use in the State of Texas. This assumption is the 

basis for consideration of your first series of questions, which 

are here set out: 

"1. (a) Are out-of-state manufacturers, 

distributors, and jobbers required to obtain 

licenses pursuant to Section 5 of the Act? 

(b) Does the term tout-of-state"aS 

used in Section 5 of the Act include manufacturers, 

distributors, and jobbers who are located or 

domiciled in foreign countries? 

-1071- 
Hon. J. N. Nutt, page 3 (C- 222) 

“2. Does the purchase by a distributor, 

jobber or retailer of permissible fireworks 

from an unlicensed out-of-state manufacturer 

or importer for resale in Texas violate the 

provisions of Section 5I or Section 5J of the 

Act if the actual contract of purchase was 

consummated outside of Texas and delivery 

Is made through a distributor, jobber or 

retailer outside the State? 

"3. Identical question as No. 2 above 

except that delivery is made to the distributor, 

jobber or retailer In Texas. 

"4. Identical question presented in No. 2 

above except that the contract Is consummated 

in Texas. 

"5. Identical question presented in No. 2 

above except that the sale is consummated in 

Texas and delivery Is made to thendIstrIbutor, 

jobber or retailer in this State. 

The provisions of Section 5 which provide the basis 

for the above questions are as follows: 

"A. A license fee of $500.00 per year, 

due and payable on or before February 1st of 

each and every year beginning February 1, 1958, 

to the State Fire Marshal subject to the provisions of Section 12 of this Act, will be 

charged for the permit to manufacture, possess 

and sell fireworks. The manufacturer may manufacture, possess and sell items other than those 

enumerated in Section 2, but for sale and delivery 

only to states where other types of fireworks 

are legal but may not be sold or used in the 

State of Texas. 

"The same license fee will apply to and 

shall be paid by any and all out-of-state 

manufacturers offering goods for sale in the 

State of Texas, as a condition to their sale 

in Texas. 

"B. A similar license fee of $750.00 

annually, due and payable on February 1st of 

-1072- 
Hon. J. N. Nutt, page 4 (C- 222) 

each and every year, as provided in Section 

5A above, will be charged all distributors 

who possess and sell the fireworks enumerated 

in Section 2. 

"The license fee provided herein shall 

be due and payable by all out-of-state distributors offering goods for sale within the 

State of Texas. 

"C. A license fee, due and 

provided in Section 5A above, of i 

ayable as 

500.00 per 

year, will be charged all jobbers who possess 

and sell the fireworks enumerated in Section 2. 

?rhe license fee provided herein shall 

apply to and be payable by out-of-state jobbers 

as a condition for selling within the State of 

Texas. 

1, 

. . . 

"I. No person, firm, corporation or 

association shall deliver fireworks for resale to any individual, firm, corporation or 

association unless consignee produces a license or evidence that consignee holds such 

a license. 

"J. No distributor, jobber or retailer 

shall purchase fireworks from a factory, distributor, jobber, manufacturer or salesman without 

first requiring proof that the license required 

of each herein has been obtained. No license 

provided for hereinabove shall be transferable 

nor shall a jobber or salesman be permitted to 

operate under a license granted a distributor." 

Concerning the above provisions as they pertain to 

the questions you have asked, you state In your letter as 

follows: 

"The Department has not adopted any formal 

departmental construction concerning the above 

questions. It has, however, been the position 

of the Department that any attempt to strictly 

enforce the license requirements insofar as 

out-of-state manufacturers, distributors or 

-1073- 
Hon. J. N. Nutt, page 5 (C -222) 

jobbers are concerned would result in placing 

a burden upon or an Interference with interstate commerce In violation of the Federal 

Constitution if the transactions Involved 

were essentially interstate in character. It 

has further been the position of this office 

that any out-of-state manufacturer, distributor 

or jobber who actively solicits business or 

offers to sell fireworks through Its sales 

representatives in Texas or is otherwise 

engaged in local activities which would 

constitute the transaction of business in 

Texas should be required to obtain the proper 

license. . . .' 

In examining your questions and the provisions of 

the Act concerned, the views of your Department are of great 

assistance In guiding this office toward an answer to your 

questions. As has been emphasized, "the practice and interpretive regulations by officers , administrative agencies, 

departmental heads and others officially charged with the 

duty of administering and enforcing a statute will carry 

great weight in determining the operation of a statute. 

Vol. 2, Sutherland Statutory Construction, p. 514. 

It Is of value to recall that the general purpose 

of this Act is the protection of the health, safety, and 

general welfare of the public. Obviously, the Act is primarily 

soncerned only with persons and property within this State, as 

every state possesses exclusive jurisdiction and sovereignty 

over persons and property within its territory. Conversely, 

the jurisdiction of a state Is restricted to its own territorial 

limifrs and does not extend beyond its boundaries." 81 C.J.S. 

&I. 

As a further aid to arrivfng at answers to your 

questions, it is helpful to examine the authority of the 

officer charged with the responsibilfty of administering and 

enforcing the Act. Article 5.44 of the Texas Insurance Code 

sets out the authority of the State Fire Marshal in detail. 

Essentially it is that of fire prevention and investigation. 

Among the definitions set out in Section 1 of the Act in 

question is the following: 

"State Fire Marshal--The chief law 

enforcement officer of the State of Texas 

charged wit! the responsibility of fire 

prevention. 

-1074- 
Hon. J. N. Nutt, page 6 (C-222) 

Turning now to your questions l(a), It is primarily 

governed by the provisions of Section 5, A, B and C quoted 

above. The language used therein is clear and does not warmrant an extended discussion. A license is required of manufacturers, distributors and jobbers in this State. Then, 

additionally, the same license is required of out-of-state 

manufacturers, distributors and jobbers offering goods for 

sale in the State of Texas, as a condition to their sale In 

Texas. 

Question l(a) is answered in the affirmative. Outof-state manufacturers, distributors and jobbers, who offer 

fireworks for sale In the State of Texas are required to obtain 

the appropriate license as a condition to sell such fireworks 

‘in the State of Texas. 

Question l(b) is answered by another provision 

contained in the Act. The Legislature was obviously aware 

that many fireworks reaching this State would come from foreign 

sources of supply, and provided In the Act for requiring a 

license of the importer, as follows: 

"E. An annual license fee, due and payable 

as provided in Section 5A above, of $100.00 

shall be due and payable by each importer who 

possesses and sells the fireworks enumerated in 

Section 2 above to any persons, firms, corpora; 

tion or association within the State of Texas. 

By applying the license requirement at the source of importation, 

the Act precludes the suggestion that the term 'out-of-state"as 

used therein, was intended to include manufacturers, distributors, 

and jobbers who are located or domiciled in foreign countries. 

Question l(b) Is answered in the negative. 

Your remaining questions 2 through 5 are each based 

upon a certain state of facts. The facts are varied in each 

instance to provide the basis for the question. As the facts 

posed in each question are presumably founded on experiences 

your office has faced in admlnistering and enforcing the provisions of this Act, your Department's position is a guiding 

factor in arriving at a construction of the Act. 

It should be noted here that paragraph "I" of Section 

5 does not appear to except any person, firm, corporation or 

association from its coverage. It requires every person, firm, 

corporation or association to ascertain that the consignee of 

fireworks has the license required under this Act, before delivery 

-1075- 
Hon. J. N. Nutt, page 7 (C-222) 

Is made. Paragraph "J" requires the opposite, that is, it requires 

that the distributor, jobber, manufacturer or salesman selling 

the fireworks have the license required by the Act. It is important to note, however, that the Act does not require ally 

manufacturers, distributors, and jobbers to become licensed-- 

only those located here in Texas or who offer fireworks for 

sale in Texas. 

Question No. 2 is answered as follows: The purchase 

by a distributor, jobber or retailer of permissible fireworks 

from an unlicensed out-of-state manufacturer or importer for 

resale in Texas does not violate the provisions of Section 51 

and J, If the contract of purchase was consummated outside of 

Texas and delivery Is made through a distributor, jobber or 

retailer outside the State. 

Question No. 3 is considered in accordance wigethe 

position of your Department , and answered as follows: 

purchase by a distributor, jobber or retailer of permissible 

fireworks from an unlicensed out-of-state manufacturer or 

importer for resale in Texas does violate the provisions of 

Sections 5I and J if the actual contract of purchase was entered 

into outside of Texas and delivery is made to the distributor, 

jobber or retailer in Texas by the manufacturer-or importer. 

As a supplement to the answers given to Questions 

2 and 3, it may be noted that the failure of such out-of-state 

person, firm, corporation or association selling such fireworks 

outside of this State to a distributor, jobber or retailer from 

this State to require proof that the consignee holds the license 

requfred by this Act, might be a violat,ion. However, the Federal 

Act quoted above would have to be resorted to in order to effectuate any punishment that might be due for such violation. 

Questions Nos. 4 and 5 are answered together, and 

again due consideration Is given to the position your Department has taken In administering and enforcing the provisions 

concerned. Both questions are answered in the affirmative; 

such a purchase is in violation of the provisions stated as 

the consummation of the contract within this State would require acts which would constitute or be equivalent to offering 

goods for sale in this State so as to bring the parties within 

the purview of the license requirements. 

You next ask the advice of this office in a second 

series of questions concerning the provisions for public display of fireworks. Sections 9 and 10 are pertinent portions 

of the Act relating to these questions and you state there is 

-1076- 
Hon. J. N. Nutt, page 8 (C-222) 

no established departmental construction on the points raised. 

"1 . Is a person required to hold a 

distributors license before making any public 

display of fireworks in Texas. It is assumed 

that the person making the public display of 

fireworks will be in possession of Class A 

and/or Class B fireworks for such purpose.' 

Section 1 of the Act defines Class A fireworks as: 

"Those fireworks defined in Section 10 of this Act and not 

otherwise;" and Class B fireworks as : "Shall Include all 

types of dangerous fireworks excepting fireworks designtted 

as ICC Class C Common Fireworks and Class A Fireworks. 

Section 2 of the Act provides: "It shall be unlawful for any individual, firm, partnership, corporation or 

association to possess for sale within the state, sell or 

offer for sale, at retail, or use, within the State of Texas, 

any fireworks other than the permissible fireworks herein 

enumerated." The permissible fireworks enumerated in this 

section are limited to ICC Class C Common Fireworks only, and 

thus, at this point, Class A and Class B fireworks are not 

permissible fireworks. There follows later in the act, however, Section 9, the pertinent portion of which Is as follows: 

"Sec. 9. Be it further enacted, that no 

person, firm, corporation or association without 

securing a permit from the State Fire Marshal, 

shall manufacture, possess or sell any dangerous 

fireworks for any use or purpose, including 

agricultural purposes or wild life control. 

Before any dangerous fireworks may be manufactured, possessed, sold or used, a permit 

therefor specifying the uses to be made thereof mu@ be secured from the State Fire Marshal. 

. . . 

As the provisions of Section 9 are special provisions coming later than the general provisions of Section 

2, they must be regarded as an exception. The rule for statutory construction in this situation is stated in 39 Tex.Jur., 

Statutes, Sec. 114, as follows: 

"In case of conflict between a general 

provision and a special provision dealing with 

the seme subject, the former is controlled or 

limited by the latter; and this iS so whether 

-1077- 
I. - 

Hon. J. N. Nutt, page 9 (C-.222) 

the provisions in question are contained in the 

same act or in different enactments. In other 

words, when a statute makes a general provision 

apparently for all cases and a special provision 

for a particular case or class, the former yields 

and the latter prevails in so far as the particular 

case or class is concerned. In such circumstances, 

the special provision or statute Is regarded as 

though It were an exception or proviso, removing 

something from the operation of the general law." 

Section 10 

granting permits and P or a general license for the purpose of 

rovldes a comprehensive method for 

public display of dangerous fireworks. As you pointed out in 

your letter, the last sentence of this Section prompts the above 

question, this sentence being: 

'For purposes of license the sale and/or 

possession of Class A and Class B fireworks 

only, as described hef;ein, shall require a 

Distributor's permit. 

A careful examination of the entire Act reveals 

that the words 'license' and "permit" are used frequently 

in the major portions of the Act. It is, however, Important 

to note that this use is confined so that the terms are not 

used interchangeably so as to refer to the same authority. 

These two terms are so carefully used throughout the Act that 

to say that "license" should have been used In the place of 

'permit" in the last sentence of Section 10 quoted above is 

to impute a mistake in terminology which the Act as a whole 

consistently refutes. It is the opinion of this office that 

a person is not required to hold a Distributorls license before 

making any public display of dangerous fireworks in Texas, but 

a permit issued by the State Fire Marshal as authorized in Section 9 is required of such person and the display license as 

provided in Section 5H is also required. 

"2. If you have answered Question No. 1 

above in the affirmative, then please advise 

If the applicant for a permit to publicly 

display fireworks should be required to furnish proof that such license had been obtained 

before the application for a permit is approve+ 

and the permit issued by the proper authority. 

In view of the answer given to No. 1, this question 

is not answered. 

-1078- 
Hon. J. N. Nutt, page 10 (C-222) 

“3. Is a person who makes a public display 

of Dangerous7 fireworks required by the Act to 

puraase or zcquire such fireworks only from a 

duly licensed manufacturer, distributor, jobber, 

retailer or Importer?" 

Reference is made to the prior answers given herein 

for the basis for the answer to this question. Again it is 

p~ointed out that the purpose of this act is the protection of 

the health, safety, and general welfare of the public. It is 

not the purpose of this Act to prohibit citizens of this State 

from purchasing such fireworks from manufacturers, distributors, 

jobbers, retailers and importers of other states, but it is to 

provide for a maximum amount of protection if such fireworks 

are manufactured, possessed , sold or used within this State. 

Question No. 3 is answered by stating that if such 

fireworks for public display are purchased or acquired within 

the State of Texas, the same are required to be purchased or 

acquired through a manufacturer, distributor, jobber, retailer, 

or importer who holds a permit issued by the State Fire Marshal 

pursuant to the provisions of Section 9 of the Act. 

“4. If your answer to Question No. 3 is 

in the affirmative, then please advise if a 

person who makes a public display of fireworks 

is prohibited by the Act from purchasing or 

acquiring such fireworks from an unlicensed 

manufacturer, distributor, jobber, retailer or 

Importer outside of the State of Texas, either 

by delivery in or out of the State; and if the 

Act so provides, If such provision is valid 

under the Federal Constitution." 

In view of the answers given hereinabove, it is 

the opinion of this office that the Act does not prohibit a 

penson who makes a public display of dangerous fireworks from 

purchasing or acquiring such fireworks from an unlicensed manufacturer, distributor, jobber, retailer or importer outside of 

the State. It Is, however, our opinion that delivery of such 

fireworks within this State would necessitate that the persons 

so delivering and receiving such fireworks have the proper 

permits Issued by the State Fire Marshal as authorized in 

Section 9 of the Act. 

SUMMARY 

Article 1725, Vernon's Penal Code, requires 

all out-of-state manufacturers, distributors 

-1079- 
Hon. J. N. Nutt, page 11 (C-222) 

and jobbers, who offer fireworks for sale in 

Texas to obtain a license as a condition to the 

sale thereof. The term "out-of-state" as used 

does not include manufacturers, distributors, 

and jobbers located or domiciled in foreign 

countries. Purchases of permissible BCC Class 

C Common Fireworks7 fireworks consummaed outside 

this State, with irelivery made outside this State 

do not violate this Act; but,f if the contract for 

purchase is entered outside this State and the 

manufacturer or Importer makes delivery within 

this State, such purchase does violate this Act. 

All purchases made, however, within this State 

are subject to this Act so as torequire the 

parties to such sale to have the appropriate 

license. 

A.person Is not required tohold a distributor's license in order to make a public 

display of dangerous mass A and Class B 

Fireworks7 fireworks rn Texas, buta permit 

as issuer by the State Fire Marshal pursuant 

to Section 9 Is required. Dangerous fireworks for public dlsplay,if purchased or acquired within the,State.of Texas must be 

purchased or acquired through a manufacturer, 

distributor, jobber, retailer or importer 

holdlng~a permit issued by the State Fire 

Marshal pursuant to Section'g. The Actdoes 

not prohibit purchase or acquisition of dangerous fireworks for public display from an 

unlicensed manufacturer, distributor, jobber, 

retailer or importer outside of Texas, but 

delive'ry of such fireworks within this State 

would require the proper permits pursuant to 

Section 9 by the party delivering and receiving 

such fireworks. 

Very truly yours, 

WAGGONER CARR 

Attorney General 

LCM:mkh 

-1080- 
. 

Hon.' J. N. Nutt, page 12 (C-222) 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

John Reeves~ 

Joe Trimble 

;. .;. ;hu;tz 

. . 

APPROVEDFOR THE ATTORNEY Gm 

BY: Howard W. Mays 

-1081-