THEATTORNEY GENERAL 

OFTEXAS 

WI& WILSON 

*lTORNEYGENERAL 

August 23, 1960 

Honorable Henry Wade 

Criminal District Attorney 

Dallas County 

Dallas, Texas 

Honorable Monroe N. Clayton, Jr. 

County Attorney 

Terry County 

Brownfield, Texas 

Gentlemen: 

Opinion No. WW 917 

Re: Liability under Article 

48ga, Penal Code, for a 

pistol being sold without 

the purchaser having a 

certificate of good character and for such a certlficate not being kept with the 

permanent records of the 

dealer. 

This opinion is issued in response to your request for anwem to the 

following threes questions: 

(1) May a person be prosecuted under Article 489a, Penal 

Code, for purchasing a ptistol without having a certificate of good character? 

(2) May a person be prosecuted under Article 4898, Penal 

Code, for selling a pdtol to an adult who is not under 

the heat of passion, but who does not have a certificate 

of good character? 

(3) May a person be prosecuted under Article 489a, Penal 

Code, for not keeping with the permanent records of 

the dealer the certificate of good character of the 

purchaser of a pistol? 

To each of the three questions asked a negative answer must be given on 

the basis of the opinion of the Court of Criminal Appeals of Texas in Doucette v. 

State of Texas, 317 S.W.2d 200 (Tex.Crlm.App. 1958). 
Hon. Henry Wade and Hon. Monroe N. Clayton, Jr., Page 2 (~~-917) 

The Court in the Doucette case, which involved the sale of a pistol 

to a minor, stated in part as follows: 

". a . [The contention is made] that the captionof 

Article 48% does not contain sufficient notice that the 

act itself prescribed a penalty for the sale of a pistol 

to a minor and is therefore invalid by virtue of Article 

III, Section 35, Constitution of Texas. . . 

"We have examined the caption of Article 489a in the 

light of such contention and fail to find therein any 

Intimation that the act itself purported to legislate 

upon the offense here involved. We find therein no mantion of minors and agree with the . . . contention." 

Article III, Section 35, Constitution of Texas, Vernon's Ann. Texas 

stat. ) to which the opinion referred, states in part as follows: 

"No bill . . . shall contain more than one subject, which 

shall be expressed in its title. But if any subject shall be 

embraced in an act, which shall not be expressed in the title, 

such act shall be void only as to so 'much thereof, as shall not 

be so expressed." 

The Court in the Doucette case thus found that the subject of an offense 

committed by selling a pistol to a minor was not embraced in the caption of Article 

4@*, Penal Code, or, in the wording of the Constitution, such subject was not embraced in the title of the bill in which Article 48ga was included as Section 4, 

that is, H. B. NO. 514, Acts of 42nd Leg. Reg. Sess., 1931, Chap. 267, page 447. 

H. B. No. 514 also included other sections which provided for an occupation tax 

and license for those dealing in pistols for profit, the keeping of records, and 

other matters. 

Article &@a (as Section 4 of H. B. No. 514 shall be designated hereinafter 

in this opinion) states *s follows: 

"If any person shall knowingly sell, rent, or lease any 

pistol to a minor, or any other parson under the heat of passion, 

he shall be guilty of a misdemeanor, or, if any person violates 

any of the provisions hereof, he shall be guilty of a misdemeanor, 

and upon conviction, punished by a fine of not less-,.than ten dollars 

($10) nor more than two hundred dollars ($200), provided that no per- ' 

son may purchase a pistol unless said purchaser has secured from a 

justice of the peace, county judge, or district judge, in the county 

of his or her residence a certificate of good character. Said certificate to be kept with theipermanent record of the dealer. No person 

may purchase a pistol who has served a sentence for a felony. 

"Nothing in this bill shall affect the law against carrying 

pistols." 
Hon. Henry Wade and Hon. Monroe N. Clayton, Jr., Page 3. (W-917) 

The caption of H. B. No. 514, the bill which included Article 48ga, 

states as follows: 

*An Act imposing an occupation tax on certain persons 

engaging in the business of selling and otherwise disposing 

of pistols, as herein defined; providing for the obtaining 

of licenses by such persons; authorizing counties and municipalities to impose a tax; providing for the keeping of 

records; prescribing conditions incident to the sale of plsto18 under named conditions and providing the Act shall not 

affect the law relating to the carrying of pistols; Escribing offenses and fixing puni8hment8; repealing Article 

7068; making exceptions, and declaring an emergency." 

(Emphasis added). 

Article 489a, as observed from its text, provides in part that a person. 

shall be guilty of a misdemeanor: 

(a) if he sells a pistol to a minor, 

(b) if he sells a pistol to an adult under the 

heat of passion, 

(c) if he buys a pistol without securing a 

certificate of good character, or 

(d) if he fails to keep with the pe-ent records 

of the dealer the certificate of good character 

of the purchaser of a pistol. 

Consideration of the caption of H. B. No. 514, particularly those parts 

underlined above, results in the conclusion that each of the misdemeanors described 

in the previous paragraph of this opinion is to an equal extent either embraced or 

not embraced by the caption of the bill. Certainly each of the misdemeanors is 

equally a prescribed "offense", and certainly it is just as much a prescribed "condition incident to the sale" of a pistol that a buyer must be an adult, as that he 

must not be undei'the heat of passion and must have a certificate of good character. 

Since the Court in the Doucette aase has held that prohibiting the sale' 

of a pistol to a minor is not embraced by the caption'of H. B. No. 514 and therefore,th& such provision of Article 48ga is invalid, the same reaeod&g~nantt 

necessarily apply to those other acts prohibited by Article 48ga concex%ing::whSch 

this option was requested, since all have the same etatus as regards the caption. 

With regard to the requirement that the certificate of good character of 

a purchaser be kept with the permanent records of the dealer, the obvious purpose 

of the Legislature ih so requiring was to provide a means of enforcing the initial 

requirement&hat a purchaser of a pistol have such a certificate, that is, a means 

of sg> when a violation of the inttial requirement had occured. 
Hon. Henry Wade and Eon Monroe I. Clayton, Jr., Page 4 (W-917) 

Since the initial requirement that a purchaser have a certificate of 

good character is not valid on the basis of the opinion in the Doucette case, 

the requirement that such a certificate be kept after the sale cannot stand by 

Itself. 

The Legislature, despite running afoul of Constitutional requirements 

concerning the contents of bills, must have believed that purchases by persons of 

good character were proper while purchases by others were not. Yet, to now find 

valid the requirement of Article 48% that such a certificate be kept, while 

finding Invalid the Initial requirement itself, would:have the absurd result of 

creating an offense after a sale to a person who unnecessarily provided a certificate of his good character, but affecting in no way a sale to a person who did 

not or could not provide such a certificate. 

Therefore, the requirement that the certificate of good character of a 

purchaser be kept with the permanent record of the dealer must be considered as 

being merely a part of the initial requirement that a purchaser have such a certificate, and, as such, both requirements are invalid on the basis of the opinion in 

the Doucette case. 

A person may not be prosecuted under Article 48ga, Penal Code, 

for purchasing a pistol without having a certificate of good 

character. 

A person may not be prosecuted under Article 489a, Penal Code, 

for selling a pistol to an adult who is not under the heat of 

passion, but who does not have a certificate of good character. 

A person may not be prosecuted under Article 48ga, Penal Code, 

for not keeping with the permanent records of the dealer the 

certificate of good character of the purchaser of a pistol. 

APPROVED 

OPINION COMMITTEE 

Ii. V. GEIPPERT, Chairman 

Dean Davis 

,Bi .E~X!iaimQ-~, Jr. 

Henry Braswell 

Marvin Brown 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

By:&&4 D.-T 

Charles D. Dabaniss 

Assistant Attorney General 

PxBVIhWRDBORTBEATTORNBY GEWERAL 

BY: Leonard Passmore