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 ask whether sections 3 and 5 of that Act are 

void for vagueness. 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 3 reads in pertinent part: 

To conduct a 'going out of business 

sale,' any person, 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 is unclear as to where the 

businessman must file his inventory if the business is 

within the jurisdiction of both the city and county tax 

assessor-collectors. A law is void for vagueness if it fails 

to give a person of ordinary intelligence a reasonable 

opportunity to know what is prohibited. 

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 the meaning of article 9011, section 

3 has been answered by a prior opinion of this office. 

P. 3874 
The 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, if both have jurisdiction of his location. 

If the business is subject to only the county tax assessorcollector, no such option exists. We believe that section 

3 of article 9011 defines the required conduct clearly 

enough so that the provision is not void for vagueness. 

Section 5, the penalty provision, reads as follows: 

Any person violating any provisions of 

this Act 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 ask whether this provision is unconstitutional because 

it fails to set a maximum fine per offense. The failure of 

a penal statute to limit the maximum amount recoverable 

does not cause it to violate constitutional limitations and 

guarantees. Annot., 114 A.L.R. 1126 (1938). In Martin v. 

Johnston, 33 S.W. 306, 310 (Tex. Civ. App. 1895, no writr 

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 the provision 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 

the minimum 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 a minimum 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 

(8th Cir. 197n Earin v. Bet- F.2d 376 (5th Cir.), -- 

cert. denied, 406 U.S. 909 (1972); Binkley v. Hunter, 170 

F.2d 848 (10th Cir. 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 

5 of article 9011 is not unconstitutional. 

P. 3875 
. 

, 

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

SUMMARY 

Sections 3 and 5 of article 9011, V.T.C.S., 

are not void for vagueness or subject to 

other constitutional objection. 

truly yours, 

Attorney General of Texas 

APPROVED: u 

DAVID M. PENDALL, First Assistant 

Opinion Committee 

jwb 

P. 3876