Case Information
*1 TEE AYXORNE~ GENERAL ~FTExAS
.July 14, Hon. Ernest Guinn Opinion No. V-634.
County Attorney Re: Burden of proof in a El Paso County 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'ction 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: "*For the 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,,from all 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 19 8, c have Paso, on or about the day of 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 . -with the allegations (Elliott v. State, 12 S. W. 2d 575)
Hon. Ernest Guinn - Page (V-634) should be in accord-
and equally so that the allegations exist. ante with the precise facts as they
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 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 By&2?lS?&&@ WTW:wb W. T. Williams
APPROVED: