Untitled Texas Attorney General Opinion

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

p. 56