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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
