## TEE AYXORNE~ GENERAL ~FTExAS

.July14, 1948

Hon. Ernest Guinn County Attorney El Paso County El Paso, Texas

Dear Sir: Opinion No. V-634. Re: Burden of proof in a proseoution for selling or exposing for sale food not securely protected from flies, dust and dirt.

We refer to your letter following: "Althoughunder subse'ction 6 ofArticle 707, as food not sethe term 'filthy'is defined curely protected from flies, dust, dirt, and other foreign or injuriouscontamination, it will be noticed that the word 'filthy' **is** used merely b; an adjective to modify 'animal or vegetable substance'. inwhich you submit the

"It is my opinion that in order to sustaina convictionunder this law, the burden of proofwould be on the State to prove the presence in the food of some type of unfit substance, such as insect fragments,worm fragments, or similarmatter. I have been informed by the local State Food & Drug Inspector that, in other parts of the State, convictions have been obtainedwhen the proofmerely showed that the food had not been securelyprotected from flies, dust, dirt, etc." Article 707, Vernon's Penal Code, reads in part: "*For the purposes of this chapter an article shallbe deemed to be adulterated:
. . . "(Cl In case of'food; , . . "(6) if it consists inwhole or In part of a filthy,decomposed or putrid animal or vegetable substance.
. . .Hon. Ernest Cuinn - Page 2 (V-634)

"Filthv defined. -- The term 'filthy' shall be deemed to apply to food not securely protected from flies, dust, dirt,
. . .I' As used in subsection 

## (6) ofArticle 707,Vernon's Penal Code is **.filt,h~' :anadjective modifying "animal and vegetable substance"as therein used?

The language ,Yfilthy,decomposed or putrid animal or vegetable substance"with the comma after "filthy" and thoword "or'* after !!decomposed" definitely c~reates three specific offenses for "having in his possession with intent to sell, offer or expose for sale or sell or exchange any article of food or drugwhich is adulterated or misbrandedwithin the meaning of this chapter. The term food shall include all articles used by man for food, drink, etc." Article 706. Sutherland Stat. Const., 3rd Ed., Vol. 2, Sec. 4923.

"Filthy"'asused and defined in said subsection (6)when readwith AX'tiCle 706,means "No person, firm or corporation shallwithin this State 0'
. .have inhis possessionwith intent to sell, offer or expose forsale or sell OF'exchange,, food,,: drink, etc.which is not securely protected from flies, dust‘and dirt, and as faras may be necessary by all reasonable,'means,,from all foreign or injurious contaminations.P,

A complaint in the usual form,which alleges such possession, intent, offer and exposure and lack of protection from flies,,etc. and proof of such allegationswill supporta convictionunder saidArticles 706 and 707, Vernon's Penal Code.

We are of the opinion that a complaint for violation of Article 706,and 707 of the Penal Code should in all cases allege the factual situation that will support the complaint. In your specific case it should allege that the defendant'did:withinthe State of Texas and Count Paso, on or about the day of 19 8, c of El have in his possessionwith intent to sell, offer &d expose for sale, articles of food, to-wit, eggs,which said foodwas adulterated in this, that theywere in broken shells and were not securelyprotected from flies, dust, dirt, and from all foreign or injurious contaminations.

It is essential that the proof should correspond

.-withthe allegations (Elliottv. State, 12 S.W. 2d 575)Hon. Ernest Guinn - Page 3 (V-634)

and equally so that the allegations antewith the precise facts as they shouldbe in accordexist. Allegations of the presence in the food of filthy, decomposed, or putrid animal or vegetable substances have no place in the complaint. There isno reason to allegematterswhich cannotbe proven. SUMMARY In a prosecutionunder Article 706 of the Penal Code,where the offense pertains to broken eggs, and no actual contaminationcan be shown, the complaint shouldallege the facts as thev exist. that is. such foodwas not securely-protectedas the statute'requiresinArticle,?o6-7 (6). Very truly yours, ATTORNEY GENERAL OFTEXAS

WTW:wb 

# By&2?lS?&&@
W. T. Williams

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