Untitled Texas Attorney General Opinion ( 1948 )

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THEATTORNEY GRNERAL
AUSTIN. TEXAS
February 2, 1948
Hon. Ray Martin, Opinion No. V-491
County Attorney,
Wichita County, Re: The legality of the proposed
. . -
Wichita Falls, Texas. .criminaI prosecutmn ot a cor-
poration for offering a iulterated
food for sale.
Dear Mr. Martin:
Your letter requesting an opinion of this Department
is, in part, as follows:
“We desire to prosecute by criminal corn-
plaint and information a Corporation, doing busi-
ness in Wichita Falls, Texas, for violation of AT-
title 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, discover-
ed 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 crim-
inal 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 cor-
poration 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 mis-
branded 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 do any act or
thing enjoined by the pracedlng articles of this
chapter Oor 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 ornis-
sion was knowtigly done or emitted* e D sB (Em-
phasis added).
We assume you intend to proceed against the corpora-
tion 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 fil-
thy. decomposed or putrid animal OP vegetable
substance, or any po~tlon of an animal or veg-
etable 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 protect-
ed 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 csrpo-
ration 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 situa-
tion 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, provid-
ed a suitable penalty that can be imposed on the
corporation is provided in the penal code.” (Em-
phasis 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 over-
ruled 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 Ap-
peals stands unchallenged in any criminal prose-
cution, and therefore in Texas, a private corporation
Hon. Ray Martin, Page 4 (v-491)
will not be liable under a general criminal stat-
ute which does not specifica?ly make corporations
subject thereto.” (Emphasis added)
As to the broad language in the opinion by Judge Latti-
more 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 Pub-
lishing Company v, State, since the court did not
give the question involved in that case due consid-
eration, 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 corpo-
ration, 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 cor-
porations that the Judge Lynch case is not controlling. We further
believe that the broad language to the effect that a corporation can-
not 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 Massa-
chusetts in 1911. The facts in that case were practically identical
with the facts now before us.. A corporation was indicted for sell-
ing adulterated milk and~the question of whether it was included
within the term “whoever” was decided by the court in the follow-
ing language:
*R. L. c. 8, Sec. 5, provides that the word
‘person’ may ‘extend and be applied to bodies pol-
itic 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 stat-
utes 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 con-
strued ‘according to the plain import of the lan-
guage in which it-is written.’ Under this provi-
sion, a penal statute will not be construed so
strictlv as to defeat the lenislative intention.
when that intention is plainly manifest or is
n
fair“lpy “,,ts
e uc* e ram the language of the act.
bble&
hi h dd
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 follow-
ing 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 im-
material, 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 text-
books dealing with the subjects of criminal law and corporations,
and in every case the writers speak of proceeding against corpo-
rations only by way of indictment, and use virtually the same lan-
guage as quoted immediately above. In only one text have we found
any intimation that corporations might be proceeded against other-
wise 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+.rrisdic-
tions in which corporations~ have. been prosecuted by way of com-
plaint 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 fur-
ther 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:
.~.~vidsdfor 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 mis-
demeanor 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 establish-
ed 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 execu-
tion may issue for the fine and costs, tho a capias
was issued,for the defendant; and a capias may is-
sue 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 corpo-
ration 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 prop-
erty 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 penal-
ties 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 pro-
cedure in any particular state of case which may
arise, the rules of the common law shall be ap-
plied 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