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           0                               The State   of Texas
               P
                Y               OFFICE OF THE ATTORNEYGED?ZW.,OF TEXAS
                                                   Austin

 Gerald        C. Mann
Attorney        General


                    Honorable    George   W. Cox
                    State Health Off lcer
                    Austin, Texas
                    Dear Sir:                        Opinion No. O-3411
                                                     Re:   Correct form ror complaint
                                                           for riling charges against
                                                           an Individual for sellfng
                                                           the meat of an animal that
                                                           had died from natural cause.
                              This is to acknowledge your recent request for our
                    opinion as to the sufficiency   or a complaint form submitted
                    along with your letter,   and asking that we prepare a correct
                    form in the event we found yoursina?propriate.
                                 The case of Cosine v. State, 87 Tex. Cr. R. 92, 220
                    9. W, 102, was one wherein the defendant was charged with the
                    offense of selling,    ol’ferlng    for sale and possessing     for the
                     purpose of sale an article       of food consistin&    of meat and pro-
                    duct of an animsl that had died othernrlse than by slaughter.
                    Yihlle the Cozine case was decided in 1320, prior          to the last
                    codlrication    of our Penal Code, the applicable       StatUt8    has been
                    brought forward without change.          The Court of Criminal Appeals
                    approved the Indictment in the case.          Yhlle th8 opinion of that
                    court does not set out the form, we have examined the Sam8 as
                    shown in the transcript      on file    in the Clerk’s office.      There
                    were two counts in said indictment,         the charging part of each
                    being here copied:
                                  First   count:
                                “Did then end there unlawfully have in his
                          possession with intent to sell,   did then and
                          there offer and expose for sale, and did theu
                          Andythere offer to sell to John Doggett an ar-
                          ticle  of food consisting 0: meat and product
                          of an animal unfit for food, to-wit a hog that
                          had died otherwise than by slaughter.”
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             Honorable   George Vi. Cox, Page 2


                         Second count:
                         "Did then and there unlawfully have in hls
                   possession with Intent to cell,   and dfd then and
                   there offer Andyexpose for sale, and did then
                   and there sell to Mrs. Della Anthony an article    of
                   food that consisted   of the meat and product of an
                     animal unfit ror food, to-wit,  the meat and car-
                   cass of a.hog that had died otherwise than by
                   slaughter."
                        In view of the above, we have prepared and attached
             hereto a form of complaint we are confident will meet any at-
             tack in the appellate  courts.  We think the attached form pre-
             ferable  to the one you submit because of the approval given the
             indictment In the Cosine case, supra.   Vie do not mean by this
             to imply absOlUt8ly that your form would not b8 sustained,   al-
             though we observe the State would most likely have a greater
             burden of proof than If proceeding under the Dozine form.    We
             also note that the kind of animal is not specified   in the form
             you submit.
                         Trusting   the above is satisfaotory,       we are
                                                                     Yours very   truly
                                                             ATTORNEXGEN?&L OF TEXAS

                                                            By /s/      Benjamin VJoodall
.-                                                                        Banjamln Voodall
                                                                                 Assistant

             ENCLOSURB
             AWROVEDMAY 5, 1941
             /s/   Grover Sellers
'.,
             FIRST ASSISTANT
  .~         ATTCJRNEYGEKERAL
             APPROVEDOPINION COUKITTEE
                By BWBChairman
         .’



     .
              .   ’
                  IN THE NAMEANDBYTHE AUTHORITYOFTHE STATE OF TEXAS:
                                  BEFOREme, the undersigned                authority,        on this     day per-
                  aonally     appeared                                          , who, arter           being    by me

                  duly 6worn,       on his     oath deposes           and says that      he has good reason

                  to bellsve       end does     believe       that                                         In the

                  county    of                              and State     oi T8xas,      on or about the

                  day of                        - , A. D. 1942,           and betore         the making and

                  filing    of this        complaint,       did then and there          unlawfully       have in his.
                  possession       with     intent   to sell,         and did then and there            offer    and

                  expose    for    sale,     and did then and there            sell     to                              I
                  an article       of rood that           consisted     of the Feat and product             of an
                  animal unfit        ror    food,   to-wit      the neat of a hog that had died
                  otherwise       than by slaughter,
                  Against      the peace      aud dlgnlty        of the State.




                                  SWORNTO AND SUBSCRIBED before                  me by                                  t
                  a credible       person,      on this      the -day          or                          , A. D.,

\‘:.              194-.

I.

                                                                        County Attorney of
                                                                                      County,           Texas.



                                 (This rorm.,may be endorsed on the back thereor, exabtly
                                  as the specimen you submit.   If no actual sale made,
                                  omit the clause "and did then and there sell to         ."I
.                                                     36-4              h




    II TRR RAweAlfD BY TB&AUTRORITX
                                  OF THE STATEOF T8XMt
                  BEFOREme, the underri~ed           authority,       on thlr da7 psrsonall~
    app6ared                                               # vho,      after   being by me duly
    svorn,     on hlr oath deposer and raya that he ha8 good reason to believe
    and does bUi.ts           that                                             in the county of
                                    and 8tate of Texm,   on or about the                  day of
                                    , A. D. 19&-,   and before the aalclq         and    filing       of
    this     aomplalnt,      did then and there unlavf’ully       bare in hlr pos~ee~lon
    vlth     intent    to sell,      and did then and there offer       and oxpose for 8ale,
    and    did then and there ~11 to                                                                  0111
    artlole     of food that oonsisted         of the meat and product of an anlmal un-
    fit    for food,       to-wit    the meat of a hog that had died othervise              than by
    alaughter,
    Agalnmt     the peace and dignity         of the State.




                      SWORR
                          TO MD SJDSCRIBED
                                         berore me by                                                      .

    a aludlblo pemon, anthls the                      Ilayof                             , A. D.

    194-.



                                                              bunty    Attorney     ol
                                                                               County, Texar.


                      (Thlr form nary be entloraed an ;~n~a~t~lr;~A                 exxztlt
                       au the q2twimen xou 8uWt.
                       omit the olauoe and did then and there .a11 to                      l   . “1

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