## GENERAL THEATTORNEY

OFTEXAS

WI& WILSON *lTORNEYGENERAL August 23, 1960

Honorable Henry Wade Criminal District

### Attorney Dallas County Dallas, Texas Honorable Monroe N. Clayton, Jr. CountyAttorney Terry County Brownfield,Texas

Gentlemen: Opinion No. WW 917
Re: Liabilityunder 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 threesquestions:

(1) May a person be prosecutedunder Article 489a, Penal Code, for purchasing a ptistol without having a certificate of good character? (2) May a person be prosecutedunder Article 

## 4898, Penal Code, for sellinga 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 prosecutedunder

### Article489a,Penal Code, for not keepingwith the permanent records of the dealer the certificateof 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 CriminalAppeals 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 ismade] that the captionof Article 

### 48% does not contain sufficientnotice that the act itself prescribed a penalty for the sale of a pistol to a minor and is therefore invalidby virtue of Article III, Section 

### 35,Constitution of Texas.
. . "We have examined the caption of Article 

### 489ain the light of such contentionand fail to find therein any Intimationthat 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'sAnn. Texas stat.) to which the opinion referred, states in part as follows:

"No bill

. . . shall containmore than one subject,which shallbe expressed in its title. But if any subject shallbe embraced in an act, which shallnot be expressed in the title, such act shallbe void only as to so 'muchthereof, as shall not be so expressed."
The Court in the Doucette case thus found that the subject of an offense committedby 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 subjectwas not embraced in the title of the bill in which Article 

### 48gawas includedas Section 4, that is, H. B. NO. 

### 514,Acts of 42nd Leg. Reg. Sess., 

### 1931,Chap. 

### 267,page 

### 447. H. B. No. 

### 514also includedother sectionswhichprovided for an occupationtax 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. 

### 514shallbe designatedhereinafter 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 shallbe guilty of a misdemeanor, or, if any person violates any of the provisionshereof, he shallbe guilty of a misdemeanor, and upon conviction,punishedby a fine of not less-,.than ten dollars ($10) nor more than two hundred dollars ($200),provided that no per- ' sonmay 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 residencea certificateof good character. Said certificate to be kept with theipermanent record of the dealer. No person may purchase a pistol who has serveda 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 includedArticle 48ga, statesas follows:

*AnAct imposingan occupationtax on certain persons engaging in the business of sellingand otherwise disposing of pistols, as herein defined;providing for the obtaining of licensesby such persons; authorizing countiesand municipalities to impose a tax; providing for the keeping of records; prescribing conditions incident to the sale of plsto18 under named conditionsand providing the Act shall not affect the law relating to the carrying of pistols; Escribing offenses and fixing puni8hment8; repealingArticle 7068; making exceptions,and declaringan emergency." (Emphasisadded). Article 489a, as observed from its text, provides in part that a person. shallbe 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 keepwith 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, particularlythose parts underlinedabove, results in the conclusionthat each of the misdemeanors described in the previous paragraph of this opinion is to an equal extent either embraced or not embracedby 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 certificateof good character.

Since the Court in the Doucette aase has held that prohibiting the sale' of a pistol to a minor is not embracedby the caption'ofH. B. No. 514 and therefore,th& suchprovision of 

### Article48ga is invalid,the same reaeod&g~nantt necessarily apply to those other acts prohibitedby Article 48ga concex%ing::whSch this option was requested, since all have the same etatusas 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 requiringwas to provide a means of enforcingthe initial requirement&hat a purchaser of a pistol have such a certificate,that is, a means of sg> when a violation of the inttial requirementhad occured.Hon. Henry Wade and Eon Monroe I. Clayton,Jr., Page 4 

### (W-917) Since the initial requirementthat a purchaser have a certificateof good character is not valid on the basis of the opinion in the Doucette case, the requirement that such a certificatebe kept after the sale cannot standby Itself. The Legislature,despite running afoul of Constitutionalrequirements concerningthe contents of bills, must have believed that purchasesby persons of good characterwere proper while purchasesby others were not. Yet, to now find valid the requirement of Article 

### 48% that such a certificatebe kept, while finding Invalid the Initial requirement itself,would:have the absurd result of creatingan offense after a sale to a person who unnecessarilyprovided a certificate of his good character,but affecting in no way a sale to a person who did not or could not provide sucha certificate.

Therefore, the requirement that the certificate of good character of a purchaser be kept with the permanent record of the dealermust be consideredas being merely a part of the initial requirement that a purchaser have such a certificate, and, as such,both requirementsare invalid on thebasis of the opinion in the Doucette case.

A person may not be prosecutedunder Article 

### 48ga,Penal Code, for purchasing a pistol without having a certificateof good character.
A person may not be prosecutedunder Article 

### 489a,Penal Code, for sellinga pistol to an adult who is not under the heat of passion, but who does not have a certificateof good character.
A person may not be prosecuted underArticle 

### 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 CharlesD. Dabaniss AssistantAttorney General

PxBVIhWRDBORTBEATTORNBY GEWERAL BY: Leonard Passmore