The Honorable Richard W. Carter Opinion No. H-925

Hunt County Attorney Hunt County Courthouse Re: Whether article 9011, Greenville, Texas 75401 V.T.C.S., is unconstitutionally vague. Dear Mr. Carter: You have inquired about the constitutionality of article 9011,V.T.C.S., which regulates "going out of business" sales. You askwhether sections 3and 5of thatAct are void forvagueness. See Grayned v. City of Rockford, 408 U.S. 104 (1972);UnitedStates v. Nat'1 Dair Products $",:~:,c~~~."~~,.2~~t~~~t268 S.W. 142

Section 3reads inpertinent part:

To conduct a 'goingout of business sale,' anyperson, firm, or corporation shall file a sworn itemized inventorv with the assessor and collector of taxes of the
(Emphasis added).
You suggest that section 3 isunclear as towhere the businessman must file his inventory if the business is within the jurisdiction of both the city and county tax assessor-collectors. A law isvoid forvagueness if it fails to give aperson of ordinary intelligence a reasonable opportunity to know what isprohibited. Rockford, supra. Grayned v. Cit; of See Galveston & & S.A.Ry. v. Duty, 2 7 S.W. 1057 (Tex.Comm'n App. 1925, jdgmt adoptz). The question you raise as to themeaning of article 9011, section 3has been answered by aprior opinion of this office.

P. 3874The Honorable Richard W. Carter -page 2 (H-925)

Attorney General Opinion M-154 (1967)determined that the businessman has the option of filing his inventory with either the city tax assessor-collector or the county tax assessor-collector, ifboth have jurisdiction of his location. If the business is subject to only the county tax assessorcollector, no such option exists. We believe that section 3of article 9011 defines the required conduct clearly enough so that theprovision isnot void forvagueness. Section 5, the penalty provision, reads as follows:

Any person violating any provisions of thisAct shall, upon conviction, be fined in the sum of not less than $200, and each

--- separate day's violation shall constitute a separate offense. (Emphasis added). You askwhether this provision isunconstitutional because it fails to set amaximum fine per offense. The failure of apenal statute to limit themaximum amount recoverable does not cause it toviolate constitutional limitations and guarantees. Annot., 114A.L.R. 1126 (1938). InMartin v. Johnston, 33 S.W. 306, 310 (Tex.Civ. App. 1895, nowritr the court upheld a statute providing for a fine of "not less than five dollars for each bale of cotton" weighed by an unqualified person. The defendants attacked the statute as violative of theprovision of the Texas Constitution forbidding excessive fines. Art. 1, 5 13. The court concluded that the statute did not authorize excessive fines but only fixed theminimum penalty and left the jury discretion to go beyond it,within the limits defined by the constitutional provision. Nor did the penalty provision violate the due process clause of the federal or Texas Constitution. U.S. Const. amend. 14, 5 1; Tex. Const. art. 1, § 19. Relying on the reasoning of Martin, the Court of Criminal Appeals upheld another statute which provided aminimum but no maximum fine. Hamilton v. State, 153 S.W. 134 (Tex.Grim. App. 1913). See also Unzed States v. Rich, 518 F.2d 980 (8thCir. 197n Earin v. Bet- F.2d 376 (5thCir.), -- cert. denied, 406U.S. 909 (1972);Binkley v. Hunter, 170 F.2d 848 (10thCir. 1948); Brown v. State, x6 S.W.Zd 842 (Tex.Crim. App. 1961); Myers v. =a-03 S.W. 859 (Tex. Crim. App. 1907). We believe that the penalty provision of article 9011 is limited by the constitutional provisions against the imposition of excessive fines. U.S. Const. amend. 8;Tex. Const. art. 1, 5 13. We conclude that section 5of article 9011 is not unconstitutional.

P. 3875.

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The Honorable Richard W. Carter -page 3 (H-925)

SUMMARY Sections 3and 5of article 9011,V.T.C.S., are not void forvagueness or subject to other constitutional objection. truly yours,

Attorney General of Texas APPROVED: u

DAVID M.PENDALL, First Assistant

Opinion Committee jwb

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