                     E                  u     GENE




  WILL    WILSON
*TTORNEYGENERAL


                           November 6, 1961

    Honorable R. L. Lattimore      Opinion No. w-1187
    Criminal District Attorney
    Edinberg, Texas               Re:       Whether trucks operating
                                            out of a warehouse accept-
                                            ing orders which are de-
                                            livered to the fish dealer's
                                            wholesale house and making
                                            deliveries to purchasers
                                            from the wholesale house
                                            are required to each have a
     Dear Mr. Lattimore:                    fish dealer's license.
            You have requested an opinion from this office on the
     following matter:
             "A wholesaler operates his wholesale house
             in a certain city in this county, where he
             makes wholesale sales of aquatic products,
             and which is covered by a wholesale Fish
             Dealer's License. The wholesaler also owns
             and operates several delivery trucks, from
             which no sales of fish are made. The
             drivers of the trucks, operating from the
             trucks, take wholesale orders for aquatic
             products and turn the orders in to the
             wholesale house. The orders are never
             filled direct from the trucks at the time
             the orders are taken. All orders go to the
             wholesale house for filling. The delivery
             trucks and their drivers perform only two
             functions, first, that of making deliveries
             from orders turned in to the wholesale house,
             and second, that of taking orders."
            You have asked this office if the wholesaler must have
     a Fish Dealer's License on each of the delivery trucks, and if
     so, what kind of license must he have. The following provi-
     sions of Article g++a, Vernon's Penal Code of the State of
     Texas applies to the problem presented:
             "Section 1. The following words, terms
             and phrases used In this Act are hereby
             defined as follows!
Honorable R. L. Lattimore    Page 2    Opinion No. ~~4-1187


        (b) A 'Wholesale Fish Dealer' is any
      person engaged in the business of buying
      for the purpose of selling, canning,pre-
      serving or processing, or buying for the
      purpose of handling for shipments or sale,
      fish or oysters or shrimp or other com-
      mercial 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 per-
      son engaged'in the business of buying for
      the purpose of selling either fresh or
      frozen edible aquatic products to the con-
      sumer.
      "Section 3. The licenses and the fees to
      be paid for the same are hereby provided
      for in this Act and are as follows:
        2. Wholesale Fish Dealers' License, fee
      for each lace of business, Two Hundred
      Dollars (i200).
        2-a. Wholesale Truck Dealers' License,
      fee for each truck, One Hundred Dollars
      cy    *
             Place 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 vehicle on which, or from
      which such aquatic products are sold, shall
      constitute a place of business."
       It is the opinion of this office that the taking of
orders which are taken to the wholesale house and the deliveries
of the aquatic products from the wholesale house to a purchaser
are not sufficient functions to create a sale in themselves.
Therefore, the wholesale house is the only "place of business"
as defined in Article 934a Sections 3-11 and only one.wholesale
license may be required. Since there are no actual sales made
from the trucks, they are not required to have a separate license.

                   SUMMARY

       Trucks making deliveries from and accepting
Honorable R. L. Lattimore      Page 3         Opinion N . ~~-1187


         orders for a fish dealer's wholesale
         house are not required to be individually
         licensed.
                               Yours very truly,
                               WILL WILSON
                               Attorney General of Texas

                                        dhdLbL-
                               BY
                                    J. T. Walker
                                    Assistant Attorney General
JTN:sh
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Joseph Trimble
Elmer McVey
Riley Fletcher
REVIEWED FOR THE ATTORNEY GENERAL
BY: Houghton Brownlee,Jr.
