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 unconstitu-
                                   tionally 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.  Grayned v. Cit; of
Rockford, supra. 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 assessor-
collector, 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
                        not less than $200, and each
          in the sum of ---
          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         -- Bet-
                  Earin v.            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
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,



        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




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