GIBSON PRODUCTS COMPANY, INC., et al., Appellants, v. The STATE of Texas, Appellee, 545 S.W.2d 128

REAVLEY, Justice. We have here another attack upon the constitutionality of the Sunday (or Saturday) closing law. The trial court enjoined appellants from selling or offering for sale, on consecutive Saturdays and Sundays, the merchandise enumerated in the statute; a direct appeal was then taken to this Court under Art. 1738a, Vernon’s Ann.Tex.Civ. Stat. The sole contention is that the closing law is unconstitutional. The law is now Art. 9001, Vernon’s Ann.Tex.Civ.Stat.

It was formerly Art. 286a of the Penal Code; when the new Penal Code was enacted in 1973, this particular law was transferred intact to the civil statutes. It has often been upheld as constitutional against the same equal protection and due process arguments as are repeated here. State v. Spartan’s Industries, Inc., 447 S.W.2d 407 (Tex.1969), dismissed for want of a substantial federal question, 397 U.S. 590, 90 S.Ct. .1359, 25 L.Ed.2d 596; Ralph Williams Gulfgate Chrysler Plymouth, Inc. v. State, 466 S.W.2d 639 (Tex.Civ.App.1971, writ ref’d n.r.e.); Sundaco, Inc. v.

State, 463 S.W.2d 528 (Tex.Civ.App.1970, writ ref’d n.r.e.); Levitz Furniture Co. v. State, 450 S.W.2d 96 (Tex.Civ.App. 1969, writ ref’d n.r.e.). Appellants point to the 1973 repeal of the Penal Code provisions (Arts. 283-287) which broadly prohibited labor and sales on Sunday, leaving only Art. 9001 as the constraint against sales on Saturday and Sunday. They argue that this bare constraint has no rational justification for what may be sold and for who may sell and for when the sales may be made. They argue that the proscriptions now have no reasonable relation to the health, recreation or welfare of the people.

Art. 286a, which was under review by this Court in 1969, did more than add the device of a court injunction to the sanction of the Penal Code prohibition against Sunday business operations. It removed all penalties for the sale of the enumerated items on Sunday by those who did not sell any of the items on Saturday. The need to justify that different treatment for those who chose to close shop on Saturday and open on Sunday took us to the same constitutional questions facing us in the present case. In State v.

Spartan’s Industries, Inc., supra, we said that we understood the principal plan of this statute to be the provision of effective sanctions to close most mercantile establishments on Sunday — Saturday being the better day for sales than Sunday. Allowing latitude for Sabbatari-ans and for some who prefer to tend only the Sunday trade, the Legislature thereby maintains the prevailing custom of people doing their serious shopping for clothing, furniture, automobiles, household and office appliances, and hardware on weekdays.

When the Legislature retained the statute in 1973, it apparently decided to continue to serve that purpose. We regard the matter as a legislative question and reaffirm the constitutionality of the present statute. The judgment of the trial court is affirmed. Dissenting opinion by DOUGHTY, J., in which GREENHILL, C. J., and McGEE and SAM D. JOHNSON, JJ., join.