_ * 

THE Aaroruv~~ GENERAL 

OFTEXAS 

Honorable Thos. A. Wheat 

County Attorney 

Liberty County 

Liberty, Texas 

Dear Sir: Oplnlon No. 0-920 

Re: Is a merchant, selling drygoods 

from a store on one side of the 

street and furniture;various household appliances, and some dry goods 

from a store on the other side of 

the street because of lack of facilities to carry on'the business in 

one store, but maintaining one set 

of books and using the same name 

for both stores, operating a twostore chain so as to be,liable for 

the lice&e fee thereon.'levied by 

Article LlllD, Penal Code? 

Inasmuch as the above question, submittedby your 

letter of June 2, 1939, turns largely upon a question of fact, 

we quote fully from your letter as follows: 

"The question has arisen in this County with 

regard to a particular instance as to whether or not 

a man who operates a store under one name on one 

side of the street in an oil field town, to-wit, 

Dalsetta, Liberty County, Texas, and in that store 

sells dry goods and he operates a second store on 

the other side of the street in which he sells furniture and various household appliances and some 

goods und,er the same name that he operates the first 

store under and the reason why he doesn't have both 

stores under the same roof and In the same building 

because he cannot obtain space in the same bullding 

or an adjolnlng building to put the furnlture,and 

fixture store in, would be subject and required to 

pay a license fee for two stores instead of one store 

under Article 1lll.D of the Penal Code, as passedby 

the Acts of 1935, 44th Legislature First Called~Sesslon, 

found at page 422 of Volume 2 of Vernon's Annotated 

Statutes. 
Hon. Thos. A. Wheat, page 2 O-920 

**** 

"It is my argument that where a man has to put 

his wares in one particular building because of necessitous circumstances, which circumstances are beyond his control and he would have them under the same 

roof and. in the same building, if posslblo, but he 

has to place therest of his wares as near to his main . 

store as possible, and he has made them one establishment, 

and as a matter of fact they are treated. by him as 

one store and operated as one store and he keeps one 

set of books on both establishments that he comes 

within the purview of Article 1lllD and he is only 

maintaining one store." 

**** 

We have carefully considered the citations to Words 

and Phrases furnished in your letter, but we do not find that 

the judicial definitions of the word "store" therein given, 

are of assistance in arriving at a correct conclusion. This 

Is because your question 

the term,"store" 

turns upon a statutory definition of 

rather than upon the common acceptation of 

the term, and the Supreme Court of Texas in Hurt, et al'vs. 

Cooper, et'al, 110 S. W. (2d) 896, with referende to such 

definition, said: 

"The statute having defined the word, we are not 

concerned with its usual meaning. Under that definition a mercantile establishment at which goods, wares, 

or merchandise of any kind, except those exempted, are 

sold is a store and is taxable as such, and this even 

though it may also be a distributing point. Conversely, 

a mercantile establishment at which no sales are made 

is not a store, and therefore not taxable. The test 

is whether the sales of goods, wares, or merchandise 

are made at the place." 

Section 7, Article 1111D, Penal Code, d.efines "store" 

as follows: 

"The term 'store' as used in this Act shall be 

construed to mean and include any store or stores or 

any mercantile establishment or establishments not. 

specifically exempted within this Act which are owned, operated, maintained, or controlled by the same 

person, agent, receiver, trustee, firm, corporation, 

copartnershlp or association, either domestic or 

foreign, in which goods, wares or merchandise of any 

kind are sold, at retail or wholesale." 

Applying the foregoing definition to the facts set 

out in your letter, as we are constrained to do by the deci- 
Hon. Thos. A. Wheat, page 3 0-920 

sion of the Supreme Court in the case of Hurt vs:Cooper, 

supra, it is our conclusion that the merchant in question was 

owning, operating, maintaining or controlling a two-store 

chain In Daisetta, Liberty County, Texas, so as to become 

liable for the license fee fixed and provided by subdivision 

2,'section 5, Article llllD, Penal Code. It will be noted 

that the term "store: as used in this tax measure, is defined by Section 7 thereof, hereinabove quoted, to include 

"H store or stores or u mercantile establishment or 

establishments," which are "owned, operated, maintained or 

controlled by the same person" etc., and in or from which 

"goods, wares or merchandise of ang kind are sold, at retail 

or wholesale." We find that all of theconstituent elements 

of a "store: as laid down by the statute, concur in the instant case. We have two entirely separate places, buildings 

or mercantile establishments on different sides of the street, 

from whfch goods, wares or merchandise of some kind are sold, 

at retail or wholesale, and which are admittedly under the 

same ownership and operation. 

The fact that the exigencies of the situation, or 

the lack of suitable or ample building facilities in the 

business section of Daisetta made it necessary or expedient 

for the merchant in questlon to conduct his business from 

two separate store buildings rather than from one, is an irrelevent consideration entirely beyond the statute. To allow 

the incidence of a tax to be avoided by such personal conslderations and mental reservations of a taxpayer, would amount 

to the virtual abrogation of such tax measure, at the will of 

such taxpayer. 

The further fact appearing in yourletter that the 

merchant in question treated these two establishments or 

places as one store, operating them under one name and keeping one set of books, does not, to our mind, support his contention that he is owning and operating only one store, but 

rather strengthens our conclusion herein of his common ownership, operation, or control of two stores or mercantile establishments, as defined, so as to be liable to the license 

fee levied by subdivision 2, of Article llllD, Penal Code. 

Thanking you for your brief and trusting the foregoing satisfactorilg answers your inquiry, we are 
Hon. Thos. A. Wheat, page 4 O-920 

Yours very truly 

ATTORNEYGENEZUL OF TEXAS 

By s/Pat M. Neff, Jr. 

(simmd) Pat M.Azt:;i;;;. 

PMN:N 

APPROVED JUNE 23, 1939 

(Signed) Gerald C..Mann 

ATTORNEY GENERAL OF TEXAS 

Approved Oplriion Committee'Bg B. W. Chairman