                          March 4, 1969
                                                       /&IV
                                          s-
Sen. Charles F. Herring,
Chairman,
Senate JurisprudenceCommittee
Capitol Station
Austin, Texas
                                    Opinion No. M-348
                                    Re:   Constltutlonality
                                          of Senate Bill No.
                                          5 and Senate Bill
                                          No. 6, and related
Dear Senator,Herring:                     Inquiries.
       Your recent request for the opinion of this office.
with reference to Senate Bill No. 5 and Senate Bill No. 6
Includes the following questions:
  “1 .   Are Sections 2 and 3 of Article 698d, Texas
         Penal Code, proposed by Senate Bill 5, con-    I
         stftutlonal?
  "2. Are Sections 2 and 3 of Article 698c, pro-
      posed by Senate Bill 6, constitutional?
  "3. Are the procedures prescribed in Senate Bill
      5 ana Senate Bill 6 adequate to obtain crimi-
      nal jurisdictionover corporationsand asso-
      ciations?
 "4. If the procedure8are adequate to obtain
     criminal jurisdictionover corporationsand
     aesociations,and If adequate proof of a
     violation is presented to the court, can the
     Judge or Jury make a finding of guilt or lnno-
     cence against a corporationor association if
     there Is no appearance made by a representa-
     tive in behalf of the corporationor associa-
     tion?
 "5. If a corporationor associationmakes an ap-
     pearance during the trial proceedings,fs It
                                                        .   .




Sen. Charles F. Herring, page   204-348)


       necessary that the corporationorassocia-
       tion be present by representativethrough-
       out the trial fn order for a verdict to be
       rendered?
       Are S.B. 5 and S.B. 6 constituional,inao-
       far as they delegate authority to an administra-
       tive agency to define penal standards,rather
       than deffning such standards by statute?
       Assuming that S.B. 5 and S.B. 6 and H.B. 67
       and H.B. 69 are all enacted,'andassuming
       that a corporationla prosecutedunder
       Article 695 of the Texas Penal Code, in ac-
       cordance with H.B, 67 and H.B. 69, would a
       variance obtained under S.B. 5 or S.B. 6 con-
       stitute a complete defense to such prosecu-
       tion?
       Would the enactment of H.B. 67 and H,.B.69
       be in conflict with SOB, 5 and S.B. 6 if all
       were enacted into law?"
       Senate Bill,5 would add to
                               . the Penal__Code an article
                                                  when not.'
making pollution of'the alr a mlsdemeanor~oi'f:ense~
done under a variance, Senate Bill 6 would add to the Penal
Code,an article making pollution of water a misdemeanorof-
fense when not done un,dera permit.
       Sections 2, 3a and 4 of Article   698d, proposed under
Senate Bfll 5* read as follows:
            'Section 2, No person may cause or permit
       the emission of any air contaminantwhich causes
       or which will cause air pollutfon unless the
       emission Is made in compliancewith a variance
       or other order issued by the Texas Air Control
       Board."
            "Section 3. No person to whom the Texas
       Air Control Board has issued a variance or other
       order authorizing the emission of any air con-
       taminant from a source may cause or permit the
       emission of the air contaminantfrom that source
       in violation of the requirementsof the variance
       or order.'


                           - 1718 -

                                                            c,..   ,,
.




Sen. Charles F. Herring, page 3(M-348)


             'Section 4. Any person who violates any
       of the provisions of Section 2 or 3 of this
       Article is guilty of a misdemeanorand upon
       conviction is punishable by a fine of not less
       than $10 nor more than $1,000, Each day that
       a violation occurs constitutes a separate of-
       fense,"
       Senate Bill 6 inc.ludescomparableprovisions with re-
spect to the pollution of water.

         PROBLEM RAISED BY PROVISION FOR DISCOVERY
       While your questions No. 1 and No. 2 are in terms of
the constitutionalityof Sections 2 and 3 of each bill, we
are of the opinion that we should discuss the problems
raised by the inclusion in each bill of a provision to the
effect that "the court may authorize discovery procedures
requested by the state."' Unlimited discovery proceedings
would, in a criminal statute, contravene the constitutional
right against self-incrimination.
        If a state may have discovery procedures of any kind
under a criminal statute, their nature must be more expli-
citly described. The language of the bills is unconstitu-
tionally too broad, Article 39.14, Code of Criminal Pro-
cedure, only authorizes discovery proceedingsby the de-
fendant. However, so long as diecovery proceedingsare
limited and proper safeguardsprovided so as to prevent
violation of the privilege against self-incrimination,there
would appear to be no constitutionalbar against the enact-
ment of a statute providing for certain discovery proceed-
ings by the state, See the Special Commentary by Judge
John F. Onion8 Jr., appearing at pages 609-610 of Vernon%
Annotated Code of Cr$minal Procedurep Volume 4, under Arti-
cle 39.14.
          CONSTITUTIONALITYOF S.B. 5 and S-B. 6
          IN CENERAL, AND AS THE BILLS RELATE TC
          TI~BTVCD~JAL~.

       We answer in the affirmativeyour questions No. 1 and
2 with respect to their application to individual persons,
Your questions No. 1 and 2 are directed, however, only to
Sections 2 and 3 of the bills. This answer is subject to
our previous comments concerning the provisions for discovery


                           -P719-


                                                        .,.    I
Sen. Charles F. Herring, page 4(M-348)


by the state.
       We have held Sections 2 and 3 constitutionalfor the
reason that the legislativeprohibitionof water pollution
and air contamination;necessarily Involving the health,
safety, comfort, and welfare of the public, is within the
police power of the state, and the Legislaturemay declare
a violation of this type of prohibition to be a penal of-
fense. even thouah moral turpitude is not involved.
v. Dallas, 111 T;x. 350, 235 S.W. 513 (1921)s 19 A.L,P=.
1387; Cdenthal v, State, 106 Tex.Crim. 1, 290 S.W. 743
      ; Sherow v. State, 105 Tex,Crim. 650, 290 S.W. 754

       In answering these questions in the affirmative,we
have also concluded that Senate Bills 5 and 6 do not in-
volve an unconstitutionaldelegationof legislativepower,
This subject Is discussed more fully in our answer to your
question No. 6.
       Each bill does create an offense and in the same
statute provide for an exception to its application. Arti-
cle I, Section 28, of the Texas Constitutionprovides that
"No power of suspending laws in this State shall be exer-
cised except by the Legislature." This does not restrict
the power of the Legislature to provide for exceptions to
the ap lication of a statute.  Williams v. State, 146 Tex.
Crlm: t30, 176 S.W.2d 177 (1943)vd                therein.
          CONSTITUTIONALITYOF S,B. 5 and S.B, 6
          AS THEY APPLY "POPRIVATE CORPORATIONS
       We answer in the affirmativeyour questions No. 1
and 2 with respect to their applicationto private corpora-
tions.
       Historically,Texas courts, mostly through statu-
tory construction, have held that a corporationis not sub-
ject to prosecutionunder a penal statute. However, there
is apparentlyno constitutionalbar to the Legislaturesa
making a private corporationsubject to criminal prosecu-
tion by appropriatestatutory provisions.
       The subject of corporate criminal liability is re-
viewed in an excellent discussionof the subject In 47 Texas
Law Review 60';by Professor Robert W, Hamilton. The author
states In the article that Texas is the only state that
does not permit corporationsto be,subjectedto criminal
prosecution. Reviewed in the article are the following Texas
cases, commonly cited on the subject:
Sen. Charles F. Herring, page 5(M-348)


       Guild v. State, 79 Tex.Crim. 603, 187 S.W. 215
       ‘(19161
       Judge Lynch InternationalBook & Publishing Co
       V. State, 84 T Grim. 459, 20~ s w 52W919j;
       Cvert v. Stateyxi7 Tex,Crim. 202,*2<0 s.w, 856
       (1924);
       McCollum v. State,.165 Tex,Crim. 241, 305 S.W,2d
       612 (1957); and
       Thompson v, Stauffer Chemical Co., 348 S.W.2d
       274 (Tex.Clv,App,1961, error ref. n.r.e.).
       The author concluded that, despite certain dictum in
the McCollum case, "the most recent case dealing with the
question of corporate criminal liability returns to the
nosition that such llabilitv does not exist." The "most
recent case" referred to 1s"Thompsonv. Stauffer Chemical
co., supra, where the charge was violating Article 695,
nxas Penal Code (Vernon 1948), a statute framed In terms
of "whoever" shall etc, The author points out that in re-
fusing the writ "n.r.e." the Supreme Court has left open
the question whether the decision should be placed on the
ground that the pronoun 'whoever"does not include a car-
poration or on the proceduralgrounds adopted by the court
of appeals,
       As noted by Mr, Hamilton in his article, the Texas
cases holding a corporationnot subject to prosecution
under a criminal statute appear to have relied either on
the notion that a prohibition running to "whoever",or to
any "personfipdoes not include a corporation,or alterna-
tively on the ground that Texas procedural law does not
provide for bringing a corporationto bar on a criminal
charge. In the Overt v, State case the court did raise
the question of *due process", but the court was dealing
with a statute that defined "person" to include a firm,
company, copartnerfhip,...,...and all officers, directors,
and managers,n000i
       Senate Bills 5 and 6 avoid the "whoever"problem
by providing that no "person'may do the prohibiteda&>
and definingperson' to include a private corporation. The
bills then provide procedural provisions designed to remedy
the procedural problem.




                          -172P-
Sen. Charles F. Herring, page 6(M-348)


       In Attorney Oeneral's Opinion No. V-491 (1948), this
office held that a corporationmay be prosecuted and fined
as a separate entity under Article 706, et seq., Vernon's
Penal Code.
       A corporationla a creature of the State, derives
its powers from the State, and ia subject to liabilities
imposed on it by the State, Obviously, however, the only
penalty that may be imposed on a corporationis a fine.
Our previous comments in this opinion concerningthe State's
right of discovery also apply where a corporationPa the
defendant.
       Since there is no constitutionalbar to the Legisla-
ture's making a private corporationsubject to prosecution
under a penal statute, we proceed to review the general law
that would become applicable in Texas under the proposed
statutes.
       In 19 Am. Jur. 2d, Corporations,Section 1434, p.
827, is the statement:
      'The broad general rule ,isnow well established,
       howeveri,that a corporationmay be criminally
       liable,
Cited as authority are twPIBnited States Supreme Court cases
and cases from 22 states,     The same authority added:
      “As in the case of torts the general rule pre-
       vails that a corporationmay be criminally
       liable for the acts of an officer or agent,
       assumed to be done by him when exercising
       authorized powers8 and without proof that his
       act was expressly authorized or approved by


(1) Colorado, Florida, Georgia, Illinois, Indiana, Iowa,
    Kansas, Kentucky, Maine, Massachusetts,Michigan,
    New York, North Carolina, Ohio, Oregon, Pennsylvania,
    Rhode Island, South Carolina, South Dakota, Tennessee,
    Virginia, and West Virginia.




                          - 1722   -
Sen. Charles F. Herring, page 7(M-348)


       the corporation. A specific prohibitionmade
       by the corporation to its agents against vio-
       lation of the law Is no defense. The rule has
       been laid down, however, that corporations
       are liable, civilly or criminally,only for
       the acts of their agents who are authorized to
       act for them in the particularmatter out of
       which the unlawful conduct with which they are
       charged grows or in the business to which it
       relates. (Citing numerous authorities.)"




       In reply to your questions No. 1 and 2, we hold that
to the extent that Sections 2 and 3 of S.B, 5 and S.B. 6
would apply to partnerships,associations,firms, trusts,
and estates, the bills are unconstitutional.
       In 44 Tex. Jur. 2d, Partnership,Section 94, page
421, is the statement that "A DartnershiDas such may not
be prosecuted for a crime", citing Peterson & Fitch v.
State, 32 Tex. 477 (1870); Judge Lynch InternationalBook
~lishing     Co. v, State, 84 C R     4     08SW    56
 1 19 ; Overt v. State, 97 Cr.%peP202~g;6~ S.WI i562 a
 1;24 0
       The same text, at page 421, cites Mills v. State,
23 Tex. 295 (1859h as authority for the statement that
"And a penal statute directed against 'companies,corpora-
tions or associationasdoes ,notapply to partnerships,"The
Mills court reasoned that the language was meant to apply
only to large groups acting through their officers.
       In Overt v, State, cited above, the court expressly
raised the oueation of constitutionality. The statute
under review there defined 'person' to include a firm, com-
paw, copartnership,corpo;ation.,.,,andall officer@, di-
rectors, and managers,,sso The court wrote that these
entities
      ....couldnot as such be prosecutedas criminals
      and could not be brought before the courts: and
      a law that undertakes-toso hold them, must be
      held unreasonable,indefinite,and of doubtful
      construction,(Emphasissupplied).


                          -1723-
                                                              F   .




Sen. Charles F. Herring, page 8(M-348)



       The court continued fn the same paragraph, appar-
ently referring to the nature of the prohibitionsin the
act and also to the identity of the parties sought to be
charged:
      “What we have sald suffices to make it plain
       that in our opinion the material parts of
       this law are unlntelliglble,harsh, oppres-
       eive, incapable of enforcementand as deprfv-
       ing citizens of property without due process
       of law.” (Emphasis supplied)0
       No Texae cases have been found overturningeither the
Overt case or the Mille case, Nor do we find other jurls-
dictions holdfng that a partnerahlpmay be prosecuted as
such under a penal statute. To the contrary the discussion        i;
In 40 Am. hr., Partnership,Section 196, Criminal and Penal
Llabillties,pQ 266, la to the effect that generally an ln-
nocent partner Is not criminally liable for the acts of
anotherD The text did cite cases in which both partners
were liable, but they wer‘eheld liable indl%%ally.
       A significantdiscussionof the nature of a partner-
ship is found in CaliforniaJurisprudence(vol, 20, pa 680)
In the following language:
      “In most respects a partnership is but a re-
       lation, with no legal being as distinct from
       the members who comprise It. It la not a
       perso& either natural or artificial. Thus
       a partnership,as such, cannot be guilty of
       a crimes but guilt attaches to the delinquent
       member or members,” cftfng cases, (&nphasis
       supplied)e




                             - P724 -
Sen. Charles F. Herring, page g(M-348)


       We are constrainedto follow the Texas authorities
cited, as well as authorities from other jurledlctlons,and
based thereon, it is our opinion that Senate Bills 5 and
6 are unconstitutionalto the extent that they would apply
to partnerships,
       Associationstake many forms In addition to those
expressly Included In the definitionsgiven the word %n S.B. 5
and S.B. 6.
      "Aesoclatlon"is a word of vague meaning used
      to indicate a collectionof persons who have
      joined together for a certain ob ect, Van
      Pelt v, Hllliard, 75 Fla. 792, 7$ So. 695;-L.
      R.A, 1918E, 639.
       The legal problems in making a partnershipcriml-
nally liable apply with added force when an association
is the object.  This principle would appear to have equal
application to a 'firm' or a 'Itrust',or "estate". In the
language of the Overt court, a statute that seeks to make
such type of entity criminally liable as such "must be held
unreasonable,Indefinite,and of doubtful construction."
       We.are, therefore, of the oplnitinth&t'Seriat&Bllls
5 and 6 are unconstitutionalto the extent that they would
apply to associations,partnerships,firms, trusts, and
estates.
         QUESTION NO. 3 - JURISDICTIONALPROCEDURES
       You have asked In Question No, 3 whether jurlsdfc-
tlonal procedures prescribed in Senate Bills 5 and 6 are
adequate to obtain criminal jurisdictionover corporations.
       Your question Is answered in the affirmativeas It
applies to a corporation. Article I, Section 10 of the Texas
Constitutionprovides that an accused has the right to de-
mand the nature and cause of an accusation against him and
to have a copy thereof. Procedures set out in Senate Bills
5 and 6 provide for the service of a summons with attached
copy of the complaint,Indictment,or information,and
meet constitutionalrequirementsIn this respect.




                          - 1725-


                                                         ..
                                                             .




Sen. Charles F. Herring, page IO(&548)


       QUESTION NO. 4 - NO APPEARANCE MADE BY CORPDRATION        ,
       You have asked in Question No. 4 whether the Judge or
Jury   may make
              a finding of guilt or Innocence against a cor-
poration or associationff there 1s no appearancemade by
a representativein behalf of the corporationor aseoclatlon.
       Your question la answered ln the affirmativeas lt
applies to a corporation. The representatfvehas the right
to be heard~and to be confronted by wltneeaee, but he may
waive these rights by falling to appear at the hearing after
proper summons aerved upon the defendant. There 1s no ex-
press constitutionalprovision that he must be present.
       The proposed Senate Bills under review, expressly
prohibit the arrest of any Individual when the accused is
a corporation,hence there can be no bailment with Its at-
tendant requirementof appearance, The Code of Criminal
Procedure provides for arraignmentonly In the case of a
felony or a misdemeanor punishable by Imprisonment.
       QUESTION NO. 5 - DEFENDANT NOT PRESENT THROUGHOUT TRIAL
       You have asked ln Question NoJo,
                                      5 whether It 1s necee-
sary, after an appearance fe made during trial proceedings,
that a corporationor association be present by repreeenta-
tlve throughout the trlal in order for a verdict to be ren-
dered.
       ,Your question la answered ln the negative as It ap-
plies to a corporation. The representativehas the right,
under Article I, Section IO of the Texas Conetltutlon,tobe
heard and to be confronted by wltneeees, but he may waive
these rlghte by falling to appear at the hearlng after pro-
per summons served upon the defendant, there being no ex-
press constitutionalrequirementthat he be present..
       Further, Article 42.14, Vernon’s Code of Criminal
Procedure, provides that judgment and sentence may be ren-
dered In a misdemeanor case In the absence of the defendant;




                             - n72o-
Sen. Charles F. Herring, page ll(M-348)


       QUESTION NO. 6 - DELEQATION OF POWER 'FJAN AGENCY
       You have asked In Question No0 6 whether S.B. 5 and
S.B. 6 are constitutional,"insofaras they delegate authority
to an admlnlstratlveagency to define penal standards, rather
than defining such standards by statute."
       In our opinion there Is no prohibited delegation ln-
volved. These bills do not, In fact, purport to delegate
authority to an admfnlstrativeagency. The penal standard
is defined In the bills themselves In providing that a mle-
demeanor is committed by violating the prohibitionsof Sec-
tions 2 or 3, unless done in compliancewith a variance.
What the bills actually do is create a misdemeanoroffense
and In the same statute provide for an exception to their
application. We have previously cited authority herein to
the effect that the Legislaturehas the power to do so.
       The exceptions created by S,B. 5 and S.B. 6 apply to
the holders of certain variances or permits. A variance or
geTi; is not authorized by or Issued pursuant to S.B. 5 or
         It Is authorized by and issued pursuant to the Clean
Air'Aci of Texas, 1967 (Article 4477-5, Vernon's Civil Sta-
tutes), or the Texas Water Quality Act of 1967 (Article
7621d-1, Vernonse Civil Statutes).
       S.B. 5 and S.B, 6 might be safd, in effect, to adopt
a portion of another statute by reference, In that $he varl-
ante or permit providing the basis of an exception under
those bills Is necessarilyone Issued under the authority
of another statute, Even so, this procedure Is valid. See
Trlmmler v. Carlton, 116 Tex. 572, 296 S.W. 1070 (1927),
for the holding that, "Statuteswhich refer to other statutes
and make them applicable to the subject of legislationare
called 'referencestatutes',and are a familiar and valid
mode of legislation."
       In connectionwith the dletlnctlon that we have made
between providing an exception and delegatingauthority to
grant a variance, the following language from Harrln ton v.
                                              *ror
Board of Adjustment, 124 S,W.2d 401 (Tex.Civ.App,
ref.), Is relevant:
      "An exception is not to be confused with a vari-
       ance. While the two words have often been
       treated as synonymous,they are readily dle-
       tlngulahable....In the case of a variance, a
Sen. Charles F. Herring, page'12(M-348)


      literal enforcementof the regulationsla dis-
      regarded; the conditionspermitting an excep-
      tion are found in the regulationsthemselves
      and, furthermore,those condltlonemay not be
      altered....Speakingbroadly, then, a variance
      Is authorfty extended to the owner to use his
      property in a manner forbidden by the zoning
      enactment. An exception,on the other hand,
      allows him to put his property to a use which
      the enactment expressly permits. Mitchell
      Lend Co, v. Plannlng and Zoning Board, 140
      Corm. 527, 102 A2d 316, 318."
   QUESTION NO, 7 - VARIANCE AS A DEFENSE UNDER
   ARTICLE 695, P-C.
       You have asked in Question No. 7 whether a variance
(obtainedunder S-B. 5 or S.B. 6) would constitutea com-
plete defense to prosecutionunder Article 695 of the Texas
Penal Code, if S.B, 5p S.B, 6, H,B, 67, and H.B. 69 are all
enacted.
       Your question 1s answered In the affirmative,pro-
vided the act complainedof IS within the scope of the varl-
ante or permft. Article 695 Is qulte broad and might Cover
acts of another kind.
       We answer your Question No. 7, based upon the
authorlty cited under Artfcle 7, Vernon's Penal Code, at
Note 8, page 18:
      "It is a well settled rule ln the construc-
       tion of statutes, and for the purpose of ar-
       riving at the leglalatfveIntentions,that
       all laws fn par1 materlap or on the same
       sub.lectmatter. are to be taken toaether,
       exaiined and considereda8 If they-were one




       v. Hanrlck, 54 T. 101.
.    *




Sen. CharlesOF.Herring, page 13(M-348)


         “Where one statute   deals   with   a subject   com-
         prehensivelyand another statute deals with
         part of the same subject In a more definite
         way, the two should be read together if
         possible with a view to giving effect to
         both, but, under any necessary conflict,
         the special act must prevail, Ex parte Town-
         send, 64 Cr. R, 350, 144 S.W. 628, Ann. Cae.
         mC,    814."
       The assumed situation raises another problem, how-
ever, which we feel we should mention. There Is a poesl-
blllty that If S.B. 5, S.B. 6, and Article 695 are all
passed together, then a conviction could not be had under
any of them. We make that statement on the strength oft the
cases hereinafter cited and discussed.

       InMoran v. State, 135 Tex.Cr. R, 645, 122 S.W.2d 318
(1938), the court on rehearing reversed a convictionand or-
dered the prosecutiondismissed. The defendant was charged
with an act made a violationof the Texas Liquor Control Act
under two different sections, each of which provided a dlf-
ferent penalty. The court wrote:
         "The offense seems to be sufficientlydefined,
          but by reason of the different penaltlea pro-
          vided the statute is so Indefiniteas to be
          Inoperativeunder the requirementsof Articles
          3 and 6, P.C,, heretofore quoted."
The Moran court relied on Cooper v, State, 25 Te_x.App.530,
8 S.W. 654 (1888), wherein the court declareds v
         "If the same acts constitutean offense,~though
          found in different statutes’ or articles of the
          same code, and these acts are punishabledlf-
          ferently, we would be,lncllnedto hold that
          article 3 of the Code.of Criminal Procedure
          would be Infringed, and that neither could be
          enforced for want of certainty of punishment."
The court held to the same effect on rehearing, reported in
26 Tex.App. 575j lo S-W, 216.
Accord Stevenson v. State, 145.Tex.Crim.312, 167 S.W.2d
1027 (1943);
Ex parte Vernon T. Sanford, 163 Tex,Crlm. 160, 289 S.W.~2d
776 (1956).
                               - 1729-
Sen. Charles F. Herring, Page 14(M-348)


       In Attorney General Opinion Noo,M-323, it was said
that 'AlthoughArticle 695 does not specificallydefine
air and water pollution as criminal offenses, several Texas
Court decisions have indicated that persons who carry on a
trade or occupation which causes air or water pollution fn-
jurloue to the health of persons residing In the vlclnlty
are In violatfon of Article 695 and subject to a fine,"
cltin Moorev. State, 81. Tex.Crlm. 302, 194 S.W. 1112
(19177 Flelder v State, 150 Tex.Crfm, 17, 198 S.W.2d
576 (144)zv.
        7                  State, 389 S.W.2d 471 (Tex.
Crlm. 1965).
      QUESTION NO. 8 - CONFLICT BETWEEN S.B, 5, SOB, 6
      and H,B, 67, H *B e 69 IF ALL ENACTED
       You have asked In Question No. 8 whether the enact-
ment of H.B. 67 and H.B. 69 would be In conflict with S.B.
5 and S,B, 6 If all were enacted into law.
       We have found no conflict that would affect the appll-
cation of,any of these statutes In appropriate sltuatfone.
The House bflls do not purport to create offenses, but pro-,
vide deflnltfoneand procedureswhich might be applfed under
other statutes. The Senate bills purport to create the of-
fense as well as supplying deffnitlonaand procedures,
       For your conafderatlonwe suggest that fn certafn ways
the bills do dfffer,
       H,B. 67 defines "person" more narrowly In that It does
not Include associationsand the entitles termed aeaocia-
tions under the Senate bills, l,e., partnerships,etc.
       H,B, 67 might be said to also define "person"more
narrowly In that ft Includes private corporationsonly with
respect to pollution of air and water, but In fact the
Senate bills affect only those matters.
       H,B. 69 differs from the Senate bills and also from
H,B, 67 fn that It defines "corporatfon"to Include pri-
vate or public corporations,
       The bfPls do differ substantiallyIn proceduralPro-
visions' but if the approprfateprovisions are followed in
prosecutingunder a statute for which ft Is prescribed there
would be no conflict ln our opfnlon,

                                                                .”


                          -1730-
.   .




Sen. Charles F. Herring, Page 15(M-348)


                     SUMMARY

        Sections 2 and 3 of Senate Bills 5
        and 6 are constitutionalas they -
        apply to indlvldualsand to private
        corporations+ They are unconstltu-
        tional to the extent that they apply~
        ;;U;;;oclationa,partnerships,firma,
              , estates, or other legal en-
        tities purportedlycovered by the
        billss The provision In each bill
        granting unlimited discovery proceed-
        ings to the state Is unconstltutlon-
        ally too broad.
        Procedures provided in Senate Bills
        5 and 6 are adequate to obtain crlml-
        nal jurisdictionover a corporation,
        and once jurisdictionIs obtained the
        judge or jury may make a finding of
        guilt or Innocence If there Is no ap-
        pearance made by a representativeof
        the corporation,and may proceed to
        judgment and sentence In the absence
        of the defendant.
        Senate Bills 5 and 6 do not delegate
        authority to an agency to define pe-
        nal standardsO
        A variance Issued under the Clean Air
        Act of Texas, 1967, would be a de-
        fense to prosecutionunder Article
        695 P.C. If the Act complainedof Is
        within the scope of the variance. In
        this opinion we have pointed out also
        the posslbllltythat a conviction
        could not be had under Article 695
        or under efther of the proposed Senate
        Bills If they are all in effect at the
        same time.
        The enactment of H.B. 67 and H.B. 69
        would not be in conflict with SOB, 5
                                                               . .




Sen. Charles F. Herring, page   16(M-348)



       and 6 in a manner that would affect the
       applicationof these statutes.


                                    truly yours,

                                            zm
                                            C: MARTIN
                                            General of Texas

Prepared by James S. Swearingen
Assistant Attorney Qeneral
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Monroe Clayton
Gilbert Pena
Edward Esqulvel
Roger Tyler
W. V, Qeppert
Staff Legal Assfstant




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