                              Au-      il..TgKAs
  W7II.LWILSON
A-l-x-o-G-
                              my    21, 1962

         Hon.Monroe M.Clayton,Jr. Opinion No. Ww-1333
         County Attorney
         Terry-County             ore: Constructionof Article.
         Brownfield, Texas             286a, Vernon's Penal Code,
                                       in reference 'to(1) its
                                       application to two stores
                                       owned by the same person,
                                       (2) the definition of
                                       "hardware" to include
                                       and ammunition, and (3Y
                                       the definition of "come-
                                       cutive" to mean Sunday
                                       immediatelyfollowing
         Dear Mr. Clayton:             Saturday.
                You recently requested an opinion of this office con-
         cerning the legality of the operation of certain businesses
         relative to the sale on Sunday of articles specified in
         Article 286a, Vernon's Penal Code. We will consider them
         one at a time. The first situation is as follows:
                  "Facts: S & P Motor Supply Co. and
               Brom       Surplus Store are operating
               in the same city under the same owner-
               ship. S & P stocks and sells power
               tools and mirrors which are included in
               Article 286a. S & P is open 6 days a
               week and closed on Sunday.
                  "Brownfield Surplus stocks and sells-
               numerous items included in Article 286a,
               and is open 6 days a week and closed on
               Saturday.
                ,,~~~s",.~,    ;; ~~h$~inn;ouh;;etchain
               businesses so that each must close on the
               same day?"
                This office has already answered this question. We
         refer you to Opinion No. WW-1190, a copy of which is enclosed
         herewlth, where we held that the statute did cover such a
         situation.
eon. Wonroe M.Clayton,Jr.   Page 2   Opinion No. WW-1333


       The second question is as follows:
          "Facts: The Prontier Gun Shop stocks
       and-guns,       ammunition, radios, lug-
       gage, clocks and watches, and is open
       seven (7) days perweek,.and is open two
       consecutive days of Saturday and Sunday,
       however, does not offer to sell,or actu-
       ally sell radios* luggage, clocks or
       watches in violation of Article 286a.
          "Question: .Areguns and ammunition
       included inthe definition of 'hardware'
       so as to be included in the provisions of
       Article 286a, Penal Code?"
       The general rule is that in construingstatutes words.
should be given a definition according to their established
meaning. The term "hardware" should therefore be held to
include those items which according to established custom
and usage are included within the meaning of the term. See
Article 10, Vernon's Civil.Statutes,Article 8, Vernon's
Penal Code, and Article 48, Vernon's Code of Criminal Proce-
dure. 39 Tex. Jur. 197. Section 105. We have been unable to
find any cases where-the term "hardware"has been defined.
The Third Edition of the Merriam-WebsterNew International
Dictionary of the English Language, unabridged, published
in 1961, defines harware as follows:
          1'1: ware (as fittings, trimmings,
       cutlery, tools, parts of machines and.
       appliances, metal building equipment,
       utensils) made of metal;
         "2a: firearms (while the men spoke
      politely most of them wore DardwareJ.
      American Guide Series: Arisona) (riding
      up with plenty of [hardwareJ in sight.
      S. B. Gibson)
         "2b: metal items of military equip-
      ment for combat use (as ships, guns.
      tanks, airplaines and their parts) and
      major support items (as trucks, jeeps,
      radar)"
The Encyclopedia Americana, 1961,Edition, Volume 13, p.700,
defines hardware as follows:
 .        I
.,,
      -



              Hon.&mroe   M.Clayton,Jr.   .pag&3.   .:i.“~Op~ion   .No.   &21333




               _~ .-,   Tbrdware generic term which now:includes-
                     in its tech&al and commercial algnificauc~._..
                     a great Variety of articles made.of:.coppsr,
                     aluminum, brass, bronze, iron or steel. These
                     articles of -theverynature~ defy classifica-
                     tions.sisce.they'comprisetools usedby:-a~.-~~'
                     variety..oftradesmen-suchas carpenters,
                     machinist%locksmiths,,gunsmiths,and etc.,;
                     Ed&also the materials and fittings used by
                            There exists, houever, the general
                     ~clasiifioationof builder's, carpenter's,
                     landhousekeeper's.hardware. In the early
                   todaysof the industry the term was much more
                    .restrictedthan at present, and included a
                     little more than a few fittings required in-
                     house construction,such as hinges, latches,
                     and etc. It now includes such articles as
                     refrigerators,ice cream freezers and other
                     kitchen utensils also sporting goods, such as
                     gum, rifles, pistols, athletic supplies and
                     cutlery . . . .ll
              It is therefore apparent and we hold that the term "hardware"
              in Article 286a includes gum and ammunition.
                     Lastly you asked the following question:
                       "Does the wording of Article 286a~mean
                    Saturday and Sunday which are consecutive
                    upon the calendar, or does it mean Sunday
                    end the following Saturday? Or does it
                    mean both."
                    Article 286a, Section 1, provides in part as follows:
                        "Any person on both of the two (2) con-
                     secutive days of Saturday and Sunday,who...."
              The term "consecutive"has been defined in the case of~Cit
              of El Paso v. Fort Deerborn National Bank, 71 S.W. 799,BP
                                                                      02
              (Cir.App.1903), as follows:
                       "While the term 'consecutivedays' pri-                      .
                    marily means that many days directly fol-
                    lowing one another, it is also defined as
                    meaning 'successive'."
              Also the Federal Court of Appeals for the Fifth Circuit has
              defined the term in the case of Fulton v. United States,
Hon.Monroe M.Clayton,Jr.   Page A   OplniouNo. ~%!I?4333


250 Fed.2d: 281,.282, where it ,quotesfrom the ~earlieroase
of Hiatt Y. Ellis, Fifth Circuit; l%l, ~192Fed.2d 119,
where Judge Hutcheson used the followtig~language:
          "The word Yconsecutive'used'k the
       sentencei,aceordin+ to its primary de- .~
       finition,.denotes followfng in a~train, :
       succeeding,,oneanother in a regular
       order' . . . .I1
The statute uses the term "two (2) consecutive days of
Saturday,and Sunday." The fact that the statute used the
words Saturday and Sunday means that they must follow each
mother. Had the=gislature not intended that they follow
each other~they would shaveused the term Saturday or Suuday.
We therefore hold that Article 286a prohibits the zle of
the listed items upon both the two (2),conseeutivedays of
Saturday and Suuday,.meaningSaturday,and the Sunday next
 immediately following.
                    SUMMARY
          1. Two storesoperating under differ-
      ,ent names but owned by the same person are
       included within the prohibition of Article
       286a, Vernon's Penal Code, and one such
       store cannot remain open on Saturday~and
      the other open on Sunday and sell the items
      prohibited by the statute.
          2. Guns and ammunition are included in
      the definition of "hardware" and come within
      the prohibition of Article 286a V;P.C.
          3.  Articles enumerated in 2s6a, cannot
      be sold on both the tw: consecutive days of
      Saturday and Sunday meaning Saturday ,andthe
      Sunday next immediatelyfollowing that
      Saturday.
                           Yours very truly,




NVS:sh
Enclosure
Hon.Monroe M.Clayton,Jr.   Page 5   Opinion No. WW-1333


APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
Morgan Nesbitt
Riley Fletcher
Frank Booth
Marietta Payne
REVIEWED FOR THE ATTORNEY GENERAL
BY: Houghton Brownlee, Jr.
