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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 a iulterated 

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 in Wichita Falls, Texas, for violation of ATtitle 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 of the 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 Andy information 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 in this 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 

within this State manufacture for sale, ha+e in 

his possession with the intent to sell, offer or 

expose for sale 0~ sell OP exchahge any article 

of food 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 prohibited, or neglect OP refuse to do any act or 

thing enjoined by the pracedlng articles of this 

chapter O or in any way violate any provision 

thereof, shall be fined not less than twenty-five 

nor more than two hundred dollars. It shall 

not be necessary for the indictment to allege 

or for the State to prove that the act OP ornission was knowtigly done or emitted* e D sB (Emphasis added). 

We assume you intend to proceed against the corporation under subpara8rapb (6) of Article 707, Vernon’s Penal Code 

and the definition following which defines an article as adulterated. 

88 

. . . if it consists in whole 0~ in part of a filthy. decomposed or putrid animal OP vegetable 

substance, or any po~tlon of an animal or vegetable unfit for food, whether manufactured or 

not. or if it is the product of a diseased a-1, 

or one that had died otherwise than by slaughter. 

U”Filthy’ defined. --The term ‘filthy’ &all 

be deemed to apply to food not securely protected from flies, dust. dirt, and as far as may be 

necessary by all Peasonable means, from all 

foreign or injurious contamiaatlons.’ 

As ~QIJ have ,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 in the county court at law of carrying on the 

business of an emigrant agent without first having obtained a state 

license, and was assessed a fine of $100 and 30 days’ confinement 

in the county jail. The Court of Criminal Appeals reversed the 

trial court and ordered the prosecution dismissed. In the Lynch 

case the statute mentioned only ‘“any person” as punishable, and 
Hon. 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, 

in his brief, has confessed error, in that a firm or 

corporation cannot be criminally prosecuted under 

the laws of this state.” 

Although the above statement seems broad enough to 

preclude the prosecution of a 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 of authority 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 on the 

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 in the 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 in Texas 

the above decision by the Court of Criminal Appeals stands unchallenged in any criminal prosecution, and therefore in Texas, a private corporation 
Hon. 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 in that case due consideration, as the Assistant Attorney General who 

briefed the case for the State admitted in his 

brief, ‘That a prosecution under said statute 

cannot be maintained against a firm 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 in future cases where the statute specifically includes 

corporations within its language. It is worthy of note, also, we 

think, that in the 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. 

In Article 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. It is OUP opinion that the 

word “whoever” in . the above article includes corporations, and in 

support of this 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 in that case were practically identical 

with the facts now before us.. A corporation was indicted for selling adulterated milk and~the question of whether it was included 

within the term “whoever” was decided by the court in the 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 be reached~ by this statute we are of the 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 in which 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 13 American 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,, .in an ~inferior court 

~$ithOnt. indictment the same as individuals; and 

Sara i@r&er of cases corporations bave’~been p&j: 

O;cCuted m 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 in other+.rrisdictions in which 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 of accusation. Because 

of the paucityof decisions on this question and be~causi of the 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 

o answer the indictni&at~‘is by.notice 

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

.~.~vidsd for service of notices 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. If a 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 established this. practice in civil cases, notwithstanding the 

lack ~of any .precedents in criminal cases, since 

personal appearance of the defendant is no more 

necessary in case of misdemeanor than in a civil 

action;” 

Article 702, Vernon’s Code of Criminal Procedure, 

provides that judgment in a misdemeanor case may be rendered 

in the.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 of which 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 of the 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: 

“‘If this 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 of notices on corporations. 

Yours very truly 

CYM;wb/JCP Assistant