EXE OIRNEY GENERAL 

OF TEXAS 

Department of Agriculture 

Austin, Texas 

Gentlemen: Att'entlon: W. 3. Bussey 

Opinion No. O-2470 

Re: Certain price advertlsements 

which might be of a deceptive 

and misleading nature. 

We have received your request for an opinion 

department. We quote from your letter as follows: 

"This Department has been receiving numerous 

complaints from cltlzens of this state regarding 

the use of price tags or posters, in connection 

of thFs 

with the sale of certain commodltles and services, 

which are designed to decefve and mislead the 

public, in the material particular thst the public 

is !.ead to believe that the cost of the commodity 

or serviccbeing advertised Is less than the price 

actually charged therefor. 

"To illustrate this point, we are enclosing, 

herewith, three hotographs of a gasoline price 

sign, reading 12 P #, said photographs being taken 

at,approximately, the following distances; number 

one, 150 feet, number two, 50 feet, and number 

three, 15 feet. You will note that from a distance 

of 150 feet, the 12 is clearly visible and readable, horever, the 2 cannot be dFstinguishsd at all. 

Then from a distance of only 50 feet, you will note 

that the 4 is still unreadable, but when you look 

very closTlg you can see a dim outline of the fraction, while at a distance of 15 feet the & does 

show up. 

"Row the purpose of this type of sign, according to many of the service station operators who 

have been displaying them, Is to have the whole 

number so large and the fraction so small that the 

prospective customer ~111 read the whole number 

quite a distance away, thus getting the Impression 
Department of Agriculture, page 2 O-2470 

that he can buy gasollne at that price, but as 

he gets near the station he probably will not 

watch the algn closely enough to notice that a 

fraction of a cent also appears in connection 

with the whole number, and after he gets in the 

station and orders his tank filled, then he 

finds that he must pay 12& per gallon for his 

gasoline, instead of 12# per gallon as he was 

lead to bellevs. 

"We also find many price signs where this 

fraction is g/10 of a cent, instead of onehalf, thus, making it necessary for the customer 

to purchase ten gallons of gasoline to save one 

penny, while the large figures used to dlsplag 

the whole number In the sign leads them to believe that they are saving a penny on 

lon. 

"Many of the station operators dieplaying 

signs similar to the one shown in the photographs 

are very free to tell our inspectors just what 

the purpose of this type of sign Is, and most 

of them are strongly opposed to using such methods 

to secure business and only do so in order to meet 

competition because when a competitor across the 

street puts up a sign similar to this, it leads 

the public to bellsve that he is selling gasoline 

for one cent per gallon less than his neighbor. 

"We also find signs similar to this used in 

connection wl'ch other businesses, and would apprsclate your advising whether or not this type 

of misleading and deceptive advertlslng is in 

violation of Article 1554 of the Penal' Cods of 

Texas. 

"If the above question Is answered in the affirmative, vould not any price sign containing 

a whole number and a fraction, and In which the 

fraction was not clearly visible and readable from 

approximately the same distance as the whole number, 

be considered misleading and deceptive and also 

in violation of the above mentioned Article. 

"We notice in reading Article 1554 of the Penal 

Cods that no particular law enforcement agency is 

chargdwith the enforcement thereof, we would, therefore, appreciate being advised as to which law snforcement agency or agsnciss would be a;thorlzsd to 

enforce the provisions of this Article. 
Department of Agriculture, page 3 O-2470 

Article 1554, Vernon's Annotated Penal Code, provides: 

"Art. 1554. Untrue advertisement 

"Whoever with Intent to sell or in any way 

dispose ~of merchandise, securltles, service, or 

anything offered by such person, or by any firm, 

corporation or association which he owna or of 

which he has control directly or indirectly, to 

the public for sale or distribution, or with lntent to increase the consumption thereof, or to 

induce the public In any manner to enter into 

any obligation relating thereto, or to acquire 

title thereto, or any Interest therein, makes, 

publishes, disseminates, circulates or places 

before the public or causes to be made, published, 

disseminated, circulated or placed before the 

public in a newspaper, or other publication, or 

in the form of a book, notice, handbill, window 

display card or price tag, poster, bill, circular, pamphlet or letter, or in any other way, 

an advsrtlssment of any eort regarding merchandise, as to Its character or cost, sscuritles, 

service, or anything so offered to the public, 

which advertisement contains any assertion, representation or statement of fact which is known 

by said person or could have been known by use 

of reasonable diligence or inquiry to be untrue, 

deceptive or misleading in any material particular 

as to such matters or things so advertised, shall 

be flned not lszs+t;$n ten nor more than two hundred dollars. 

It is to be noted that the advertisement must be 

"untrue, deceptive, or misleading." 

The Court of Criminal Appeals in the case of Plncus 

v. State , 126 Cr. R. 188, 70 S.W. (2) 417, considered Article 1554, supra. We quote from that decision: 

"On the first proposition we express the 

opinion that such part of the statute as undertakes to penalize one who 'could have known by 

uss of reasonable diligence or lnqulry' that 

the advertisement was untrue is of doubtful validity. It undertakes to make a criminal of one 

who might be guilty of negligence only in the absence of any willful wrong in connection with an 

act which results in no harm to any one. Overt 
Department of Agriculture, page 4 O-2470 

v. State, 97 Tex. Cr. R. 202, 260 S. W. 856. 

Likewise, the term 'deceptive or misleading' 

seems to be vague and fraught with uncertainty. Surely in an attempted practical application much difficulty would be experienced 

both in averments which would be necessary 

and in proof to sustain them. * * * * * * fl 

The language used by the court is plain and unambiguous; accordingly it would be a futile gesture to attempt 

an elaboration of its meaning. The gasoline advertisement 

in question here is not, to our mind, untrue. However, an 

element of deception is readily discernible; but the statutory phrase "deceptive or misleading" is "vague and fraught 

with uncertainty". In any event, the question of possible 

deceptive or misleading attributes of any given advertisement would appear a fact Issue for the determination of a 

.iury .This d.epartment must refrain from acting in the capacity. 

Article 5710, Vernon's Annotated Civil 

provides that: 

"The Commissioner, his deputy, sealers 

inspectors and all local sealers and their 

Statutes, 

&- _ . utlks In the performance of their official duties, 

shall have the same power as peace officers in 

this State." (Underscoring ours) 

In conclusion, we will advise you that the statutes 

place no duty upon you, in your capacity as Chief of Deputy 

Weights & Measures, to enforce the provlsions,of Article 1554, 

supra. 

Trusting that this answers your Inquiry, we remain 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

GW:RS:wc By s/Wm. J. Fanning 

Wm. J. Fanning 

Assistant 

APPROVED JULY 8, 1940 

s/Glenn R. Lewis By s/Grundy Williams 

ATTORNEY GENERAL OF TEXAS (acting) Grundy Williams 

Approved Opinion Committee By s/BWB Chairman