                   THE      ATTORNEY     GENERAI~
                               ,OF TE=XAS
                              ATJ~TXN. TEXAS         78711



                                       August 28, 1974


The Honorable Franklin L. Smith                       Opinion,   No, H-   383
County Attorney
Nueces County Courthouse                              Re: Whether a corporation        is
Corpus Christi, Texas   78401                         criminally   liable for operating
                                                      child-caring    or child-placing
                                                      institution without license,
                                                      Subsection    12, §Ea, Art.
                                                      695c, V. T. C. S.

Dear Mr.        Smith:

           You have asked our opinion on whether,     since January 1, 1974, a
  corporation  may be held criminally   responsible    for the misdemeanor
 offense of operating a child-caring   or child-placing    institution without
 a license under aubdivision   (iv), subsection 12 of 5 Sa, Art. 695c, V. T. C. S.,
‘the Public Welfare Act of 1941, as amended.

        ‘Prior to January 1, 1974, the effective date of the new Texas Penal
Code, corporate    tiriminal responsibility     existed only to a very limited
extent in Texas,     Hamilton,    Corporate    Criminal Liability in Texas, 47
 Texas L. Rev. 60 (1969).      The new Penal Code included general rules
for imposing criminal. responsibility       on corporations  and amended the
Code of Criminal’ Procedure       to provide the procedural     means to bring
corporations   into’ court.   Title 2, chapter 7, subchapter      B, Vernon’s
 Texas Penal Code; Chapter 17A, V. T. C. C. P. (Added as conforming
amendment by Acts 1973, 63rd Leg.,           ch. 399, p. 979, $2D).

             In $7.22(a)   the new Penal Code provides for imposition  of criminal
liabili.ty    on corporations    for misdemeanors  defined outside the Code as
folIows:




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          The Honorable   Franklin      L. Smith    page 2   (H-383)




                          (a) If conduct constituting an offense is performed
                          by an agent acting in behalf of a corporation      or
                          association   and within the scope of his office or
                          employment,     the corporation   or association   is
                          criminally   responsible   for an offense defined:

                          .   .   . .


                          (2) by law other than this code in which a legislative
                          purpoae to impose criminal responsibility    on corpora-
                          tions or associations  plainly appears: or

                          (3) by law other than this code for which strict liability
                          is imposed,   unless a legislative  purpose not to impose
                          criminal  responsibility  on corporations   or associations
                          plainly appears.

                   These provisions   make legislative    intent to impose or not to impose
          criminal   responsibility on corporations    the controlling   issue. If the offense
          is a regular one requiring culpability,     the intent to include corporations
          must plainly appear, .On the other hand, if it is a strict liability offense,
          the intent to exclude corporate   liability must plainly appear.

                  The offense in question is contained in subdivision  (iv), subsection
          12, of 58a. ‘Art. 695c, V. T.C.S.,   which reads in pertinent part as follows:

                               Any person who. . . (iv) without a license conducts
                          a child-caring    institution, a commercial   child-caring
                          institution,   a child-placing  agency,  or places children
                          for adoption, is guilty of a misdemeanor      . . . .

                  Whether or not this is a strict liability offenee, an issue which is
          not necessary  to decide, we beli.eve that the legislative purpose not to
          impose corporate    criminal liability plainly appears when the provisions
          are considered   in context.  “Person” is not defined in A,rt. 695~.   The




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                                                   8,




           The Honorable      Franklin    L. Smith       page 3     (H-383)




           general definitional provision,  applicable to all civil statutea, provides
           that “person” includes, a corporation   “unless a different meaning is
           apparent, from the context. ” Art. 23, ,V. T. C. S. ; also see, Code Conetruc-
           tion Act, Art. 5429b-2,    $1.04 (4). V. T. C. S.

                     The context in which, the penalty provision quoted above appears
           in !i Ba of Art. 695c, V. T. C. S. This secti,on establisher              a comprehensive
           scheme for the Department of Public Welfare to regulate child-caring                      and
           child-placing     institutions   and activities.     It was first drafted in 1949. when
           there was no corporate         criminal liability to speak of.        Therefore,    it is
           not surprising      that, although its .licensing provisions        of subsection    2 were
           made applicable       to “every person,      association,    institution,    or corporation,    ”
           and although relief by way of injunction was made ~available against “any
           person,    association,     or ,corporation”     (subsection   ill, the criminal penalties
           of subsection     12 were made to apply only to “any person. ”

                     Further evidence of legislative       intent concerning      corporations     ie
           found in the language of the Section.          The provision0     of 9 8a are specifically
           made applicable       to corporatione    in no less than 24 separate references            to
           “person,     association    or corporation”    or some variant thereof.         This
           repetitive    specification   of “corporation”     in conjunction with “person” in
           every instance in 5 Ba where an obligation lr imposed or a right is granted
           except     in the criminal penalty provision        of subsection    12 compels     the
           conclusion     that the legislative   purpose was to exclude corporations            from
           this penalty provision.

                   The 1973 amendments     to subsection  12 (Acts 1973, 63rd Leg.,    ch.
           340, p. 767) added subdivision    (iv) about which you have inquired.    Although
           other changes were made in the penalty and in the language of the subdivision,
           it was still made applicable  only to “[a]ny person. ”

                    In our opinion a legislative        purpose not to impose .cri.minal responsi-
           bility on corporations  for violation        of 5 Ba of Article 695c, V. T. C. S.,
           plainly appears from the context.




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                 *




           The Honorable    Franklin   L. Smith     page 4     (H-383)




                    It follows that the State’s remedy against a corporation     for operating
           a child-care     or child-placing facility without a license is the injunctive
           relief provided in subsection     11, 5 Ea, Art. 695c, V. T. C. S. See Small v.
           State, 360 S. W. 2d 443 (Tex. Civ. App. --Waco 1962, writ ref’d).

                    It should be noted that the Penal Code epecifically  provides  that an
           individual agent of a corporation   remains fully responsible   for his own
           criminal    acts, and may be prosecuted    even when his acts are performed
           in then name of or in behalf of a corporation.   Art. 7.23, Penal Code, V. T. C. S.

                                                  SUMMARY

                               A corporation       is not criminally  liable for
                           misdemeanor       offense of operating child-caring
                           or child-placing      institution without a license,
                           Subdivision    (iv), subsection    12, § 8a, Art. 695c,
                           V. T. C. S.




                8%                                             Very truly youre,




                                                                OHN L. HILL




           &e-P ,’
                                                               Attorney General      of Texas




           DAVID M. KENDALL,           Chairman
           Opinion Committee




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