TEE AYXORNE~ GENERAL 

~FTExAS 

.July 14, 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: 

"Although under subse'ction 6 of Article 707, 

the term 'filthy' is defined as food not securely protected from flies, dust, dirt, and 

other foreign or injurious contamination, it 

will be noticed that the word 'filthy' is 

used merely b; an adjective to modify 'animal 

or vegetable substance'. 

in which you submit the 

"It is my opinion that in order to sustain a 

conviction under this law, the burden of 

proof would be on the State to prove the presence in the food of some type of unfit substance, such as insect fragments, worm fragments, or similar matter. I have been informed by the local State Food & Drug Inspector 

that, in other parts of the State, convictions 

have been obtained when the proof merely showed that the food had not been securely protected from flies, dust, dirt, etc." 

Article 707, Vernon's Penal Code, reads in part: 

"*For the purposes of this chapter an article shall be deemed to be adulterated: . . . 

"(Cl In case of'food; , . . 

"(6) if it consists in whole 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) of Article 707, Vernon's Penal Code is **.filt,h~' :an adjective 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 drug which is adulterated or misbranded within 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"'as used and defined in said subsection 

(6) when read with AX'tiCle 706, means "No person, firm or 

corporation shall within this State 0' . . have in his possession with 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 allegations will 

support a convictionunder said Articles 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:within the State of Texas and Count 

Paso, on or about the day of 19 c 8, 

of El 

have 

in his possession with intent to sell, offer &d expose for 

sale, articles of food, to-wit, eggs, which said food was 

adulterated in this, that they were in broken shells and 

were not securely protected from flies, dust, dirt, and from 

all foreign or injurious contaminations. 

It is essential that the proof should correspond 

. -with the allegations (Elliott v. State, 12 S. W. 2d 575) 
Hon. Ernest Guinn - Page 3 (V-634) 

and equally so that the allegations 

ante with the precise facts as they 

should be 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 

allege matters which cannot be proven. 

SUMMARY 

In a prosecution under Article 706 of the 

Penal Code, where the offense pertains to broken eggs, and no actual contamination can be 

shown, the complaint should allege the facts 

as thev exist. that is. such food was not securely-protected as the statute'requires in Article,?o6-7 (6). 

Very truly yours, 

ATTORNEY GENERAL OFTEXAS 

WTW:wb 

By&2?lS?&&@ 

W. T. Williams 

APPROVED: