Honorable William J. Tucker 

Executive Secretary 

Game, Fish & Oyster CommFsslon 

Austin, Texas 

Dear Sir: Opinion NO. 0-4861 

Re: Under the facts submitted, should 

the Simms Food Market be required 

to procure a wholesale fish dealer's license? 

You have requested the opinion of this department 

on the above stated question, based upon a statement of facts 

which we have taken the liberty of summarizing as follows: 

Mr. Walter Sitmns operates In the City of Austin a 

business house known as Simms Food Market, at which he makes 

sales at retail of aquatic products, and which Is covered by 

a retail fish dealer's license. He also owns and operates 

several trucks, from which sales of fish are made at wholesale. The drivers of the trucks, operating from the trucks, 

take wholesale orders for aquatic products, and make deliveries from the trucks in fulfillment of such orders. Each 

such truck is covered by a wholesale truck dealer's fish llcerise. The question whether Mr. Slmms Is also liable for the 

payment of a wholesale fish dealer's license on his place of 

business in Austin arises from the following additional facts: 

A. The reta store in Austln,fs also headquarters 

for the wholesale trucks. The fish with which the wholesale 

trucks are supplied are bought by and shipped to the Slmms 

Food Market, and there parcelled out to the wholesale trucks, 

as the trade of each may require. 

B. Sometimes a wholesale truck driver will take a 

wholesale order for aquatic products, and then, instead of 

filling the order by a delivery from the wholesale truck, 

will ship the order tom the customer from the Simms Food Market in Austin by express or common carrier truck line. 

The f'ollowlng provisions of Article 93&,Revlsed 

Penal Code of 1925, are applicable to the problem presented: 

"Section 1. The following words, terms and 
- -- 

Honorable William J. Tucker, page 2 o-4861 

phrases used in this Act are hereby defined as 

follows: 

11 

. . . . . 

"(b) A 'Wholesale Fish Dealer' is any person engaged in the business of buying for the purpose of selling, canning, preserving or processing, or buying for the purpose of handling for 

shipment or sale, fish oroysters or shrimp or 

other commercial edible aquatic products, to retail fish dealers, and/or to hotels, restaurants 

or cafes and to the consumer. 

"(c) A 'Retail Fish Dealer' Is any person 

engaged In the business of buying for the purpose 

of selling either fresh or frozen edible aquatic 

products to the consumer. 

It 

. . . . . 

3ection 3. The licenses and the fees to 

be paid for the same are hereby provided for in 

this Act and are as follows: 

I, 

. . . . . 

11' a. Wholesale Fish Dealers License, fee. 

for each place 'of business, Two Hundred Dollars 

($200 .oo) . 

"2a. Wholesale Truck Dealers Fish License, 

fee for each truck, One Hundred Dollars ($100.00). 

II . . . . . 

"11. Plaoe of business, as used In this 

Act, shall Include the place where orders for 

aquatic products are received, or where aquatic 

products are sold, and if sold from a vehicle, the 

vehicles on which, or from which, such aquatic products are sold, shall constitute a place of buslness. . . . (As amended, Acts 1934, 43rd Leg., 

3rd C. S., p. 83, Ch, 40, Sec. 1; Acts 1935, 44th 

Leg., p. 808, Ch. 345, Sec. l)." 

As polnted out by you, nowhere in the law is the 

phrase "Wholesale Truck Dealer" defined. 

A careful reading of the above provision relating 
Honorable William J. Tucker, page 3, o-4861 

to 'place of business" convinces ua that where aquatic products are sold only &om trucks, it is not Intended to levy 

a license fee upon the warehouse or other place where the 

fish are received and distributed to the trucks,'ln addition 

to the license fee levied upon each truck. Thus, under the 

facts stated in “A” above, atandlng alone, the Slmms Food 

Market is not required tD purchesb a Wholesale FPah Dea'ler's 

License, In addition to the truck dealer's licenses. 

But the facts utlder "B" above present a different 

sltuatlon. Under those facts, the aquat~ic products are not 

sold on or from the trucks -- the only use made of the trucks 

being to permit the salesmen to call upon customers and take 

orders. The sales are in fact made from the business house 

in Austin -- wholesale shipments being made from It direct 

to the customers by common carriers. To permYt such a business to be conducted by one who possesses only a Wholesa~le 

Truck Dealer's Fish Llcenae, for whi'ch he has paid $100.00, 

would be an unjust dlscrimlnatlon agalnat one who .had pald 

$200.00 for a Wholesale Fish Dealer'.s Lfcenae, for it would 

permit the purchaser of the $100.00 lrcense to do evergthlng 

which the purchaser of the $200.00 license Fa permItted to 

do, and more besides. 

Article 7, Penal Code of 1925, provides: 

"This Code and every other law upon the aubject of crime which may be enacted s'hall be construed, according to the plain Import of the I;anguage in which It is written, without regard to 

the distinction usually made between the construction of penal laws and laws upon oth%r subjects; and no person shall be punished for an 

offense which is not made penal by the plain import of the words of a law." 

"As regards the construction of e statute, 

it la presumed that the Legislature Intended that 

it should be given a just and reasonable interpretation." 39 T. J. 2117 (citing Leaey v. State 

Banking Board, 118 Tex. 91, 11 S. W. (28) 496.) 

"It Fa not presumed that the Leglalature 

intended to do or re uire an absurd or unfair 

thing." 39 T. J. 24, 8(citing Davis v. Payne (Clv. 

App. 179 S.W. 60; City of Tyler v. Texas Emplayers' Ins. Assn. (Corn. App.) 288 S. W. 409, 

rehearing denied 294 9. W..'l95, and Oden v. Vatea, 

119 Tex. 76, 24 5. W,. (28) 381.) 
Honorable Wllllam~J. Tucker, page 4 o-4861 

It is therefore our opinion that, under the facts 

stated In 'B", above, the Slmms Food Market is required to 

purchase a Wholesale Fish Dealer's License. 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

By s/W. R. Allen 

W. R. Allen 

Assistant 

WRA:db:wc 

APPROVED OCT 29, 1942 

s/Gerald C. Mann 

ATTORNEY GENERAL OF TEXAS 

Approved Opinion Committee By s/BWB Chairman