                            The Attorney General o,f Texas
                                                   Nay 9,      1979
MARK WHITE
Attorney General


                        Honorable Jackie L. Vaughan                   Opinion No. Mw-19
                        Executive Director
                        Texas Amusement Machine Commission            Re: Imposition    of     penalties
                        P. 0. Pox 13226, Capitol Station              respecting the   ownership and
                        Austin, Texas 787U                            operation   of      coin-operated
701 Commsra. Suite 2W                                                 machines.
oaow. TX. 75x??
zww&sm4
                        Dear Mr. Vaughan:

                               Persons responsible for certain acts or omissions respectii      the
                        ownership and  . use of coin-operated machines subject to taxation are made
                        civilly liable IIIthese words:

                                   Iviolators shall forfeit to the State es a Penalty, the
                                   sum of not less than Five Dollars ($5) nor more than
                                   Five .Hundred Dollars ($500). Each day’B violation
                                   shall constitute a separate offense and incur another
                                   penalty, which, if not paid shall be recovered in a suit
                                   by the Attorney General of this State in a court of
                                   competent jurisdiction. . . .

                        V.T.C.S., Tax-Gen., art. 13.11. You ask if it is the responsibility of the Texas
                        Amusement Machine Commission to impose penalties for violations of the
                        statute, and if the commission has the constitutional authority to
                        promulgate rules establishing specific penalties for each act or omission
                        covered by the statute.

                              A similar statute was construed in Harvill v. State, 188 S.W.2d 869
                        (Tex. Civ. App. - Austin 1945, writ ref’d). The court said:

                                     If the contention is that the rule or regulation of
                                   the Comptroller delegates to or authorizes him to
                                   exercise legislative or judicial power, it is without
                                   merit. The Comptroller neither imposed nor assessed
                                   the penalty. . . . Sec. 2 of Art. 7047a-20 authorizes
                                   the Comptroller to promulgate rules and regulations
                                   to aid him in the collection of all occupation taxes;
                                   and Sec. 3 of Art. 7047a-20 provides that anyone




                                                     p.   54
Honorable Jackie L. Vaughan -      Page Two       (MW-19)



           violating any rule or regulation so promu ated by the Comptroller
           shall forfeit to the State not less than 7 25 nor more than $500,
           each day’s violation to constitute a separate offense, to be
           recovered at the suit of the Attorney General. The Comptroller, as
           required by Sec. 3 of Art. 7047a-20, certified to the Attorney
           General the fact that appellant did not pay the tax, and that he had
           violated Rule 1. . . . Upon such certification of facts the Attorney
           General instituted this suit for the tax and the penalty, and
           accordingly recovered judgment therefor.

             The rule is settled in this State that the Legislature may provide
           for the.imposition of civil penalties or fines to be assessed by a
           court of competent jurisdiction for the violation of any legally
           promulgated rule or regulation of state officials or departments
           against any person, firm or corporation subject to and violating
           such rule cr regulation.

188S.W.Sd at 37l.

       Article 13.R does not delegate to the commf&on the authority to impose penalties
or to fix their amounts. Cf. V.T.C.S., Tax.-Gen., art. 13.12(criminal penalties). The civil
penalties are imposed by the statute rather than by the commission. The statute specifies
that a violator will incur a penalty in sn amount ranging from $5 to $500 per day. While
the commission may make a recommendation to the court, the assessment of the penalty
is left to the judiciary.

                                     SUMMARY

           The Texas Amusement Commission has the duty to ascertain,
           investigate, and report to the Attorney General all violations for
           which civil penalties are imposed by article 13.R Taxation-General,
           V.T.C.S., but it has no authority to establish specific penalties for
           specific violations. The assessment of penalties in specific cases is
           left to the courts.




                                             MAEK WHITE
                                             Attorney General of ~Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General
                                                            I



 TED L. HARTLEY
.Executive Assistant Attorney General




                                        p.   55
Honorable Jackie L. Vaughan -   Page Three      (m-19)



Prepared by Bruce Youngblood
Assistant Attorney General

APPROVED:
OPINIONCOMMITTEE

C. Robert Heath, Chairman
David B. Brooks
Bill Campbell
Rick Gilpin
William G Reid
Bruce Youngblood




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