THE ATTORNEYGENERAL 

OF TEXAS 

FVILJi WILSON 

*-ITo- GENERAL 

AUSIW aa, TEXAS 

October 16, 1962 

Mr. Jerry Dellana 

County Attorney 

Travis County Courthouse 

Austin, Texas 

Ooinion No. NW-1450 

Re: (1) Whether a corporation 

selling motor boats or 

sporting goods, consisting of articles not 

specifically mentioned in 

Article 286(a) V.P'.C., is 

prohibited from selling 

same on Sunday. 

(2) 

Dear Nr. Dellana: 

Whether Article 2&6(a) 

applies to two separate 

corporations desiring to 

remain open on different 

days -- one Saturday and 

and one Sunday -- when 

eighty (&OS) per cent of 

the stockholders of the 

corporations are the 

same, and related questions. 

You have requested an opinion of this office on the following 

questions. 

lo "1s a corporation selling motor boats or 

sporting goods articles not specifically mentioned 

in Article 286[a), V.A.P.C,, prohibited from selling 

same on Sunday?" 

2, "If two stores are incorporated separately 

under different names in the Stat,e of Texas, but over. 

eighty (80%) per cent of the stockholders are the same 

persons, are they considered,a chain store and, therefore, required to close the same day under Article 

286(a), V.A.P,C., if said stores sell specific articles 

mentioned therein? Under the same facts, if they are 

not selling specific articles mentioned under Article 

2Et6'(aj, V.A.P.C., what would be the results under 

Article 286?!' 
Mr. Jerry Dellana, Page 2, (W-1450) 

Section 5;a of Article 286(a), Vernon's Penal Code, provides 

as follows: 

"It is the intent of the Legislature that 

Articles 286 and 287 of the Penal~Code of Texas 

are not to be considered as repealed by this 

Act; provided, however, that the provisions of 

said Articles shall not apply to sales of items 

listed in Section 1 of this Act which are forbidden to be sold on the day or days named in 

this Act." 

Article 286, Vernon's Penal Code, provides in part as 

follows: 

"Any merchant, grocer, or dealer in wares or 

merchandise, or trader in any business whatsoever, 

or the proprietor of any place of public amusement, 

or the'agent or employee of any such person, who 

shall sell, barter, or permit his place of business 

or place of public amusement to be open for the purpose of traffic or public amusement on Sunday, shall 

b,,el;;;;d not; less than twenty nor more than fifty 

eooe 

Article 286(a), Section 1, Vernon's Penal Code, provides 

as follows: 

"Any person, on both the two (~2) consecutive 

days of Saturday and Sunday, who sells or offers 

fox sale or shall~compel, force or oblige his employees to sell any clothing; clothing accessories; 

wearing apparel; footwear; headwear; home, business, 

office or outdoor furniture; kitchenware; kitchen 

utensils; china; home appliances; stoves; refrigerators; air conditioners; electric fans; radios; television sets; washing machines; driers; cameras; hardware; tools, excluding nonpower driven hand tools; 

jewelry; precious or semi-precious stones; silverware; 

watches; clocks; luggage; motor vehicles; musical 

instruments; recordings; tOyB, excluding items CUStomarily sold as novelties and souvenirs; mattresses; 

bed coverings; household linens; floor coverings; 

lamps; draperies; blinds; curtains; mirrors; lawn 

mowers or cloth piece goods shall be guilty of a 

misdemeanor, Each separate sale shall constitute 

a separate offense." 

Article 287 exempts certain businesses and de,alers as to sales 

made by them before nine (9:OO) a-m,, and the sales of,certain 
Mr. Jerry Dellana, Page 3 (WW-1450) 

other products, materials and services. The exempted items, 

however, do not cover motor boats or sporting goods. We 

therefore, concur in your conclusion that, inasmuch as motor 

boats are not specifically mentioned in Section 1 of Article 

286(a), Article 2&6 applies and under the terms of Article 286, 

motor boats cannot be sold on Sunday. 

As to sporting goods, a different interpretation would apply. 

The term "sporting goods" covers a variety of items, i.e. hunting 

jackets, caps, fishing waders, tennis shoes, track shoes, football equipment including helmets, jerseys, tennis rackets, golf 

supplies, etc. Insofar as sporting goods falls into the category 

of "clothing", "clothing accessories", "wearing apparel", "foot 

wear", "head wear" or other enumerated items in Section 1, Article 

286(a) would apply and the merchant may choose whether or not 

he will sell these items on Saturday or Sunday as long as he 

does not sell these items on the two consecutive days of Saturday 

or Sunday. 

This office has held, in Opinion No, WW-1333, that guns and 

ammunition are included in the definition of "hardware", one of 

the enumerated items of Article 286(a), Vernon's Penal Code. A 

copy of that opinion is attached hereto. Therefore, insofar as 

the terms sporting goods includes guns and ammunition, these items 

fall within its provisions. Other individual sporting good items 

not covered in the enumeration of items listed in Section 1 of 

Article 286(a) would be covered by Article 286 unless exempted 
I@. Jerry Dellana, Page 4 (WW-1450) 

by Article 287. 

In your second question, you inquire whether two separately 

incorporated stores would be covered under Article 286(a), Vernon's 

Penal Code, where the stockholders of the separate corporations 

include eighty (80%) per cent of the same stockholders in each 

corporation. Section 1 of Article 286(a), quoted above, applies 

to "any person", and provides that a violation thereof is a 

misdemeanor offense. This section cannot apply to corporations, 

as corporations cannot be tried under the criminal laws of Texas. 

14 Tex. Jur.2d 538, Corporations, Sec. 448. We, therefore, hold 

that the provisions of Section 4 of Article 286(a) apply to 

corporations. However, each of the corporations is a separate 

legal entity and under the provisions of Article 286(a), each is 

entitled to decide whether to stay open on Saturday or Sunday, so 

long as the particular corporation does not stay open on the 

consecutive days of Saturday or Sunday, and so long as Section 1 

is not violated by any "person". Had the Legislature intended to 

provide for the inclusion of separate stores as a single entity 

if owned by any particular single group of stockholders they could 

have so provided as they did in Article 17.06 of Title 122a, 

Taxation-General, Vernon's Civil Statutes. Where the store sells 

items not enumerated in Section 1 of Article 286(a), Vernon's 

Penal Code, Article 286, Vernon's Penal Code, would apply and 

under that article such sales could not be made on Sunday in any 

event by either corporation. 
Mr. Jerry Dellana, Page 5, w-14501 

SUMMARY 

Article 286(a), Vernon's Penal Code, does not 

cover the s,ale of motor boats but such sale of 

motor boats is covered in Article 286, Vernon's 

Penal Code, and motor boats under that Article 

cannot be sold on Sunday. 

Article 286(a) does not include "sporting 

goods" as such. However, individual sporting good 

items may be included, i.e. wearing apparel, tennis 

shoes, hunting jackets, guns and ammunition, etc. 

Items not included by the enumeration in Section 

1 of Article 286(a) fall under the provisions of 

Article 286 and cannot be sold on Sunday. 

Two separately incorporated stores owned 

eighty(80%) per cent by the same stockholders but 

twenty (20%) per cent by individual separate 

members of the public fall within the provisions of 

Article 286(a). However, such corporations are 

individual entities and insofar as they sell articles 

enumerated in Section 1 of Article 286(a), they can 

separately choose to stay open on either of the 

consecutive days of Saturday or Sunday. Where such 

corporations sell articles not enumerated in Section 

1 of Article 286(a), they are subject to Article 286, 

Vernon's Penal Code, and cannot sell these items on 
Mr. Jerry Dellana, Page 6, (wkl450) 

Sunday unless such items are exempt by 

Article 287. 

Yours very truly, 

BY 

Assistant Attorney Generqif 

NVS:sm 

APPROVED: 

OPINION COMMITTEE: 

W. V. Geppert, Chairman 

Pat Bailey 

Iola Wilcox 

Gordon Zuber 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: Leonard Passmore