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# THEATTORNEY GRNERAL

AUSTIN. **TEXAS**

Hon. Ray Martin, Opinion No. V-491 County Attorney, Wichita County, Wichita Falls, Texas. Re: The legality of the proposed

. . - .criminaI prosecutmn ot a corporation for offering aiulterated food for sale. February 2, 1948

Dear Mr. Martin:

Your letter requesting an opinion of this Department is, in part, as follows:

“We desire to prosecute by criminal cornplaint and information a Corporation, doing business inWichita Falls, Texas, for violation ofATtitle 707 of the Penal Code, Pure Food and Drug Act. We have evidence to prove that two yourig boys purchased two ham sandwiches from this firm, and after eating part of the same, discovered the ham to be rotten and containing maggots. “We request a legal opinion ofthe Attorney General as to the following: (1)Cin a corporation as a separate entity be prosecuted under the Texas Law for the criminal offense of offering adulterated food for sale. (2) If so, what is the proper procedure to follow in such pros~ecution?

“It is believed that the proper procedure to prosecute a corporation for a misdemeanor is by filing a complaint Andyinformation against the corporation and by serving a copy of the information on the local manager as in civil cases, citing the corporation to appear for trial on a certain **date.** Attached hereto is a copy of the information I propose to file inthis case. Please advise if in your opinion the allegations therein contained are sufficient.

. . .‘I Article 706, Vernon’s Penal Code, is, in part, as follows:.

Hon. Ray **Martin.** Page 2 

### (V-491)

*No person, firm or corporation, shall withinthis Statemanufacture for sale, ha+e in his possession withtheintenttosell, offer or expose for 

### sale0~sell OPexchahge anyarticle offood **OP** 

### drug which,is adulterated or misbranded within the meaning of this chapter.’ (Emphasis added) Article 717,Vernon”s Penal Code. sets out the penalty for violating the pure food laws as follows:

*Whoever’sha do any act or thing pro

### hibited, or neglect **OP** refuse to

### doanyact or thingenjoined by thepracedlng articles ofthis chapterOor inany

### way violate any **provision** 

### thereof, shall be fined not less than twenty-five 

### nor more than two hundred 

### dollars. Itshall notbenecessary for theindictment toallege or for theStatetoprove thattheact OPornission was knowtigly done 

### or emitted* eDsB(Em

### phasis added). We assume you intend to proceed against the corporation under subpara8rapb 

### (6) of Article 707, Vernon’s Penal Code **and**

### thedefinition following which defines an article as adulterated. 88

. . . if it consists inwhole 0~ in part ofa fil

### thy.decomposed or putrid animal **OP** 

### vegetable substance, or anypo~tlon ofananimal or vegetable unfitfor food, whether manufactured or not.**or** ifitistheproduct ofadiseased a-1, or onethat**had**died otherwise thanby slaughter. U”Filthy’ defined.--The term ‘filthy’ &all be deemed toapplytofood notsecurely protectedfrom flies, dust. dirt, andas far as may be necessary by all Peasonable means, from all foreign or injurious contamiaatlons.’ As ~QIJhave ,pointed out in 

### your able brief the question of corporate responsibtlity for a 

### criminal **act was**  before the Texas Court of~Criminal Appeals in the case ,of‘Judge Lynch International Book & Publishing Co, v. State, 208 S.W. 526. In that case a csrporation was convicted inthe county court at law of carrying onthe business of an emigrant agent without first having obtained a state license, and was assessed a fine of $100 **and** 30days’ confinement inthe county jail. The Court of Criminal Appeals reversed the trial court and ordered the prosecution dismissed. Inthe Lynch case the statute mentioned only ‘“anyperson” as punishable, andHon. Ray Martin, Page 3 (V-491)

Judge Lattimore stated in the opinion that the words “any person” in a criminal statute must be a natural person. We also direct your attention to this language in the opinion:

“The Assistant Attorney General for the state, inhis brief, has confessed error, inthat a firm or corporation cannot be criminally prosecuted under the laws ofthis state.” Although the above statement seems broad enough to preclude the prosecution ofa corporation even under Article 706, et seq., we believe the case can be distinguished from the fact situation before us because Article 706 specifically includes corporations as being liable for violations.

The general rule as to criminal liability of corporations is discussed in Volume 3, Section 799 of Hildebrand’s “The Law of Texas Corporations “:

“Some early cases stated that at common law a private corporation is not indictable for crime. The great weight ofauthority today, however, is that a corporation may be criminally liable not only for crimes involving general intent but even for crimes which require a specific intent, provided a suitable penalty that can be imposed onthe corporation is provided in the penal code.” (Emphasis added) Since we have seen that Article 717, Vernon’s Penal Code, provides for a fine only, it is apparent that a suitable penalty can be imposed on the corporation.

Dean Hildebrand in the same volume and section cited above discusses and criticizes the opinion inthe Judge Lynch case as follows: “There is a decision in Texas by the Court of Criminal Appeals, which has never been overruled or modified, that holds ‘any person’ in a criminal statute refers to natural persons, and that there is no provision of law in Texas under which a corporation can be indicted or tried under the criminal law.

. .

“It, therefore, seems evident that inTexas the above decision by the Court of Criminal Appeals stands unchallenged in any criminal prosecution, and therefore in Texas, a private corporationHon. Ray Martin, Page 4 (v-491)

will not be liable under a general criminal statute which does not specifica?ly make corporations subject thereto.” (Emphasis added) As to the broad language in the opinion by Judge Lattimore to the effect that a firm or corporation cannot be criminally prosecuted, Dean Hildebrand comments:

“The above suggestion may be untimely as the Court of Criminal Appeals may overrule the case of Judge Lynch International Book and Publishing Company v, State, since the court did not give the question involved inthat case due consideration, as the Assistant Attorney General who briefed the case for the State admitted inhis brief, ‘That a prosecution under said statute cannot be maintained against afirm or a corporation, and that this case must be reversed and dismissed.“ We are of the opinion that’since the statute under which the subject prosecution is to be instituted specifically includes corporations that the Judge Lynch case is not controlling. We further believe that the broad language to the effect that a corporation cannot be criminally prosecuted under the laws of this State will be modified infuture cases where the statute specifically includes corporations within its language. It is 

### worthy of note, also, we think, that inthe Judge Lynch case the County Court assessed 

### a jail sentence against the corporation, which penalty, as we have, seen, cannot be imposed on a corporation.

InArticle 717, Vernon’s Penal Code, above quoted, the word “whoever ” is used in defining those who shall be punished for violation of the Pure Food and Drug Act. Itis **OUP** opinion that the word “whoever”

. in the above article includes corporations, and in support ofthis we cite the case of Commonwealth v. Graustein and Co., 95 N.E. 97, decided by the Supreme Judicial Court of Massachusetts in 1911. The facts inthat case were practically identical with the facts now before us.. A corporation was indicted for selling adulterated 

### milk and~the question ofwhether itwas included within the 

### term “whoever” was decided by the court inthe following language:*R. L. c. 8, Sec. 5, provides that the word

‘person’ may ‘extend and be applied to bodies politic and corporate, ’ ‘unless a~ contrary ~intention clearly appears. ’ Considering the evil intended to bereached~ by this statute we are ofthe opinion that the word ‘whoever’ includes a corporation like the defendant.” For further cases similarly defining the word “whoever”Hon. Ray Martin, Page 5 (V-491)

see 45 Words and Phrases 98. In 39 Texas Jurisprudence 275,.this statement on construction of penal statutes appears:

“It is a common law rule that penal statutes are strictly construed against the state or prosecution and in favor of the accused. But this rule has been modified or relaxed in Texas by the provision of the Penal Code which directs that every law upon the subject of crime be construed ‘according to the plain import of the language inwhich it-is written.’ Under this provision, a penal statute will not be construed so strictlv as to defeat the lenislative intention. when that intention is plainly manifest or is fair y e uc* hi “lp “,,ts bble& n

e ram h **dd** the language of the act.

It is, therefore, the opinion of this Department that a corporation may be prosecuted and fined for the criminal offense of offering adulterated food for sale under Article 706, et seq., Vernon’s Penal Code.

The next question concerns the proper procedure to be followed in such a prosecution, Article 717, Vernon’s Penal, Code, quoted earlier, provides that the indictment need not allege that the act or omission was knowingly done or omitted. As to whether a corporation must be proceeded against by indictment for all offenses be they felony or misdemeanor, we cite the following from Volume V, Fletcher’s Cyclopedia of the Law of Private Corporations, page 5401:

“It has been said, generally, that the fact that there is no previous complaint nor binding over, in the prosecution of a corporation, is immaterial, and that the appropriate ,first step in such a prosecution is the finding of an indictment.” (Emphasis added) We have examined practically all of the leading textbooks dealing with the subjects of criminal law and corporations, and in every case the writers speak of proceeding against corporations only by way of indictment, and use virtually the same language as quoted immediately above. In only one text have we found any intimation that corporations might be proceeded against otherwise than by indictment. In 13American Jurisprudence, 1060, we find this statement:

“It is well settled that where the defendant is a corporation, the finding of an indictment is the appropriate first step in the prosecution, a previous complaint or binding over being unnec-~eseary. Corporations may be proceeded against f~:p@~~:offenses however,, .inan ~inferior court ~$ithOnt.indictment the same as individuals; and Sarai@r&er of cases corporations bave’~been p&j: O;cCutedm inferior courts on complaints without tie **qwstaon** being raised as ,to the necessity of

_ **prOseCUti3ig** by indictment.

.’ (JSmphasis added) We~have found s~everrl cases arising inother+.rrisdictions inwhich corporations~ have.been prosecuted by way of complaint and,:information. However I~ we have failed to-&id. e+em& care,,& which the question was directly before the ~courtaa.to whether or not this was the pr~oper form ofaccusation. Because of the paucityof decisions onthis question and be~causi ofthe further fdct:faut..Article 717, supra,:, provides that the.jpd$ctr+~lt need Rat-~ifle&*$h+thka act was lcnoti~ngly %e++, it is~our opiaion thatthe cr.imilUif:pr&eeding you contemplate should~be institt&id’byi&&~ M*,~ ,,

.L

?~~&xe.pmpei Way td’brii$‘tb;i cqrporation ,.~,~ .f;.&T~coiii*;t oanswer the indictni&at~‘is by.notice

‘, QC-+mmmom served in the ordinary method pro: .~.~vidsd

for service ofnotices okco~porations., The court rlso acquires juriidiction over a corpora+’ ,tiorUn,:a criminal case where the corporation bye attorney voluntarily appears and submits to the jurisdiction. Ifa corporation indicted for a misdemeanor fails to appear, it has been held that a judgment by default may be rendered against it by virtue of the common law which has establishedthis. practice in civil cases, notwithstanding the lack ~ofany .precedents in criminal cases, since personal appearance of the defendant is no more necessary in case ofmisdemeanor than in a civil action;” Article 702, Vernon’s Code of Criminal Procedure, provides thatjudgment ina misdemeanor case may be rendered inthe.hbs~ence of the defendant. Although in~our opinicir:r:eapias could not be issued for any officer of a corporation, execution for the fine and costs could issue and be collected under Article.791, Vernon’s Code of Criminal Procedure, which provides:

“In each case of pecuniary fine, an execution may issue for the fine and costs, tho a capias was issued,for the defendant; and a capias may issue for the defendant tho an exeeution~ was issued agaiast~ his property. The execution shall be col-. Hon. Ray Martin, Page 7 (V-491)

lected and returned as in civil actions. When the execution has been collected, fhe defendant shall be at once discharged; and whenever the fine an:1 costs have been legally discharged in any way, the execution shall be returned satisfied.” (Emphasis added) J Article 1372, Vernon’s Civil Statutes, provides for such execution and is as follows:

“Whenever any domestic or foreign corporation in this State shall violate any law of this State, including the law against trusts, monopolies and conspiracies or combinations or contracts in restraint of trade, for the violation ofwhich fines or penalties or forfeitures are provided, all property of such corporation within this State at the time of such violation, or which may thereafter come within this State, shall, by reason of such violation, become liable for such fines or penalties and for costs of suit and costs of collection.” Because ofthe fact that some questions of criminal procedure might arise which our Code of Criminal Procedure does not encompass, we cite Article 24, Vernon’s Code of Criminal Pro- , cedure:

“‘Ifthis Code fails to provide a rule of procedure in any particular state of case which may arise, the rules of the common law shall be applied and govern.” SUMMARY 1. A corporation may be prosecuted and fined as a separate entity under Article 706, et seq., Vernon’s Penal Code. 2. The prosecution of a corporation under Article 706, et seq., Vernon’s Penal Code, should be by indictment, served in the ordinary method provided for service ofnotices on corporations. Yours very truly

CYM;wb/JCP Assistant