THE ATTORNEYGENERAL OF TEXAS

FVILJi WILSON *-ITo- GENERAL AUSIW aa, TEXAS October 16, 1962

Mr. Jerry Dellana CountyAttorney Travis County Courthouse Austin, Texas OoinionNo. NW-1450 Re: (1) Whether a corporation

sellingmotor boats or sporting goods, consisting of articlesnot specificallymentioned 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 corporationsdesiring to remain open on different days -- one Saturday and and one Sunday --when eighty (&OS)per cent of the stockholdersof the corporationsare the same, and related questions. You have requested an opinion of this office on the following questions.

lo "1s a corporation sellingmotor boats or sporting goods articlesnot specificallymentioned in Article 286[a),V.A.P.C,, prohibited from selling same on Sunday?" 2, "If two stores are incorporated separately under differentnames in the Stat,e of Texas, but over. eighty (80%)per cent of the stockholdersare the same persons, are they considered,achain 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 specificarticlesmentioned 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"It is the intent of the Legislature that Articles 286 and 287 of the Penal~Code of Texas are not to be consideredas repealed by this Act; provided,however, that the provisions of saidArticles shallnot apply to sales of items listed in Section 1 of this Act which are forbidden to be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: "Anymerchant, grocer, or dealer inwares or merchandise, or trader in any business whatsoever, or the proprietor of any place of public amusement, or the'agent or employeeof 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, excludingnonpower 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 shallbe guilty of a misdemeanor, Each separate sale shall constitute a separate offense." Article 287 exempts certainbusinesses and de,alers as to sales made by them before nine (9:OO)a-m,, and the sales of,certainMr. Jerry Dellana, Page 3 (WW-1450)

other products,materials and services. The exempted items, however, do not covermotor boats or sporting goods. We therefore, concur inyour conclusion that, inasmuchas motor boats are not specificallymentioned in Section 1 of Article 286(a),Article 2&6 applies and under the terms of Article 286, motor boats cannotbe sold on Sunday. As to sporting goods, a different interpretationwould apply. The term "sportinggoods" covers a variety of items, i.e.hunting jackets, caps, fishing waders, tennis shoes, track shoes, football equipment includinghelmets, jerseys, tennis rackets, golf supplies, etc. Insofar as sportinggoods falls into the category of "clothing", "clothingaccessories", "wearingapparel", "foot wear", "headwear" 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 consecutivedays 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 attachedhereto. Therefore, insofar as the terms sporting goods includesguns and ammunition, these items fall within its provisions. Other individual sportinggood items not covered in the enumeration of items listed in Section 1 of Article 286(a) would be coveredby Article 286 unless exemptedI@. Jerry Dellana, Page 4 (WW-1450)

by Article 287. In your second question,you inquirewhether two separately incorporatedstores would be coveredunder Article 286(a),Vernon's Penal Code, where the stockholdersof 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 cannotbe 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 corporationdoes not stay open on the consecutivedays of Saturday or Sunday, and so long as Section 1 is not violated by any "person". Had the Legislature intendedto provide for the inclusion of separate stores as a single entity if owned by any particular single group of stockholdersthey could have so provided as they did in Article 17.06 of Title 122a, Taxation-General,Vernon's Civil Statutes. Where the store sells itemsnot 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 couldnot be made on Sunday in any eventby 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 itemsmay be included, i.e. wearing apparel, tennis shoes,hunting jackets,guns and ammunition, etc. Items not includedby the enumeration in Section 1 of Article 286(a) fall under the provisions of Article 286 and cannotbe sold on Sunday. Two separately incorporated stores owned eighty(80%)per cent by the same stockholdersbut twenty (20%)per cent by individual separate members of the public fall within the provisions of Article 286(a). However, such corporationsare individual entitiesand insofar as they sell articles enumerated in Section 1 of Article 286(a), they can separately choose to stay open on either of the consecutivedays of Saturday or Sunday. Where such corporations sell articlesnot enumerated in Section 1 of Article 286(a), they are subject to Article 286, Vernon's Penal Code, and cannot sell these items onMr. Jerry Dellana, Page 6, (wkl450)

Sunday unless such items are exemptby Article 287. Yours very truly,

BY AssistantAttorney Generqif NVS:sm APPROVED: OPINION COMMITTEE: W. V. Geppert, Chairman Pat Bailey Iola Wilcox Gordon Zuber REVIEWED FOR THE ATTORNEY GENERAL BY: Leonard Passmore