        TEE        AYXORNE~   GENERAL
                      ~FTExAS


                      .July 14, 1948

Hon. Ernest Guinn            Opinion No. V-634.
County Attorney
El Paso County               Re:   Burden of proof in a
El Paso, Texas                     proseoution for sell-
                                   ing or exposing for
                                   sale food not secure-
                                   ly protected from
                                   flies, dust and dirt.
Dear Sir:
          We refer to your letter in which you submit the
following:
     "Although under subse'ction6 of Article 707,
     the term 'filthy' is defined as food not se-
     curely 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'.
     "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 pres-
     ence in the food of some type of unfit sub-
     stance, such as insect fragments, worm frag-
     ments, or similar matter. I have been inform-
     ed by the local State Food & Drug Inspector
     that, in other parts of the State, convictions
     have been obtained when the proof merely show-
     ed that the food had not been securely pro-
     tected from flies, dust, dirt, etc."
            Article 707, Vernon's Penal Code, reads in part:
          "*Forthe purposes of this chapter an ar-
     ticle 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 secure-
      ly protected from flies, dust, dirt, . . .I'
           As used in subsection (6)of Article 707, Ver-
 non's Penal Code is **.filt,h~'
                              :an adjective modifying "ani-
 mal and vegetable substance" as therein used?

          The language ,Yfilthy, decomposed or putrid ani-
mal 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 adulterat-
ed 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 pos-
 session 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,,fromall foreign or in-
 jurious contaminations.P,
           A complaint in the usual form, which alleges such
 possession, intent, offer and exposure and lack of protec-
 tion from flies,,etc. and proof of such allegations will
 support a convictionunder said Articles 706 and 707, Ver-
 non's Penal Code.
           We are of the opinion that a complaint for viola-
 tion 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 of El
 Paso, on or about the       day of             19c 8, 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
. -withthe allegations (Elliott v. State, 12 S. W. 2d 575)
Hon. Ernest Guinn - Page 3    (V-634)


and equally so that the allegations should be in accord-
ante with the precise facts as they exist.
          Allegations of the presence in the food of fil-
thy, 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 brok-
     en eggs, and no actual contamination can be
     shown, the complaint should allege the facts
     as thev exist. that is. such food was not se-
     curely-protected as the statute'requires in Ar-
     ticle,?o6-7    (6).
                                  Very truly yours,
                             ATTORNEY GENERAL OFTEXAS



WTW:wb
                             By&2?lS?&&@
                              W. T. Williams


                             APPROVED:
