VAUGHAN AND SONS INC. v. State, 737 S.W.2d 805

VAUGHAN AND SONS INC. v. State

737 S.W.2d 805

Tex. Crim. App.

1987

Check Treatment

*1 OPINION ON STATE’S PETITION FOR SONS, INC., DISCRETIONARY REVIEW AND VAUGHAN Appellant, ONION, Presiding Judge. Inc., Vaughan Sons, Appellant, Texas, Appellee. The STATE of by jury was convicted

No. 339-83. negligent criminally homicide. 19.07. The al- information Texas, Appeals of Criminal Court leged acting appellant, two En Banc. agents, caused death of two individ- Sept. 1987. uals a motor vehicle collision. See V.T. C.A., 7.22(a)(1). Punishment was assessed the trial court at a fine $5,000.00. Code, 12.- appellant contended, On inter alia, “penal provisions code prosecution arti- other ficial entities do not extend to type homicide, of criminal therefore failing trial grant appel- court erred lant’s motion to set aside the information.” Appeals agreed re versed the conviction. Vaughan and Sons, Inc. v. (Tex. 649 S.W.2d 677 App. 1983). Ap The Court of — Texarkana peals part: wrote in reading “A superficial homicide statute construed Pe- with the definition ‘person’ Code 1.07(27)] indicates that a [§ could be found guilty indeed of the crime charged. question But the actual before legislative whether a court is intent plainly appears which corpora- includes negli- tions within criminal field of gent by use of ‘per- homicide the term ” son.’ reviewing statutes, etc., After other Court of concluded: “Therefore, stronger, without a clearer legislature indication from the policy holding corporations criminally responsible changed, for homicide we Bennett, Houston, appel- C. Robert so hold. decline to We should make lant. slowly haste when it is in the direction Holmes, Jr., Atty., Ray B. Dist. John either individual or a Houston, Atty., Asst. Dist. Speece, Elvin crime, espe- liable for a Austin, Huttash, Atty., State’s Robert cially homicide, one so serious as when it State. committed someone other than

person charged.” *2 Thus, Appeals ruled rule corporation The could not be state, tried offense though Leg- even statutes so was once accepted, widely Texas, just but islature not have could intended to include however, throughout Today, nation. corporations culpable within the class of general corporation rule is parties corporations because are unable to performed be held liable for criminal acts formulate “intent” their “artificial and acting behalf. See soulless” form. 649 S.W.2d at 678. generally Amer.Jur.2d, 18B Corporations, granted petition We the State’s for dis- (1985); C.J.S., 2136 and 2137 Corpo- 19 §§ cretionary review to determine the correct- rations, 1358, p. 1073.3 § holding ness Ap- the Court to the 1974 Prior Penal Code and the peals.1 conforming amendments thereto responsibility recognized At common only law could not very to a limited Texas. Searcy extent commit a crime. See 10 generally W. Patterson, and Commentary, Practice Fletcher, Cyclopedia Corporations, V.T.C.A., Code, 7.22. Texas was § 4942, (1978); Corporations, at 620 Henn § apparently then state that did not Scott, (1961); 186 LaFave W. & A. Crimi- § general provide for liability. Law, (1972).2 position 33 “This § Hamilton, Corporate Liability predicated on the rationale that a Texas, (1968); 47 Texas Law Rev. 60 tion had no mind hence could not enter- Hamilton, Texas Organizations, Business tain the appropriate criminal intent re- (1973); Lebowitz, 239 Recent Develop- quired Also, for all common crimes. Corporation I, in Texas ment Law—Part physical absence of body precluded im- 641, 662, 28 Southwestern Law Journal n. prisonment, primary punishment avail- (1974). Hildebrand, 148 See also Corpo- Illegal able at common law. acts of a Crime, Liability rate Torts 13 corporate agent imputed were not 253, (1935); Law Rev. 275 Keeton & corporate entity they because con- were A Searcy, Texas, New Penal Code 33 sidered ultra vires and therefore 980, (1970). Tex.B.Joumal 985 “While Clark, authority corporation.” imposed there were a few statutes Corporate Homicide: New Assault on situations, limited main- Corporate Making, Decision Notre Dame pollution ly for or willful violations of eco- 54, Lawyer, (June pp. 1979). Vol. 911-912 regulatory legislation,4 nomic even these Law, Ed., See also Wharton’s Criminal 14th virtually negated by the absence of a 111, Vol. pp. procedure 80-81. under which Texas Law, Ed., grounds 1. It was the State’s review 3. In 1 Wharton’s Criminal 14th Vol. holding Legisla- 80-81, of the Court of pp. it is written: ture did not intend for law, early corporation being common "At 19.07, applied corporations, miscon- person artificial an inanimate statute, strued the was in conflict with cases entity, incapable committing was deemed relating statutory from this Court construc- crime, culpable it could not entertain a men- tion, importance and was a of such physically pun- state tal and it could not state law it should be reviewed and settled ished. this Court. incapacity longer "This exists. A committing capable is now Holt, C.J., ration crime 2. Lord stated: "A is not capable being punished indictable, therefor. particular but members of it circumstances which it is (KB 1701). under liable are Anonymous, Eng.Reg. are.” 88 1518 Blackstone, commonly (Emphasis described statute.” See also 1 W. 476: Commentaries* treason, supplied.) “A or felo- cannot commit crime, ny, corporate capacity: or other in its 4477-5b, See, 1(2), e.g., (Supp. §§ 4. Article though may, its members in their distinct indi- (air Ann., 1974) pollution), Texas Water Code capacities.” early vidual For cases American (1972) (water pollution); Article Androscoggin §§ 21.551-.553 see Water & Power Co. Bethel 2, 23, Co., (1962) (regulation (1875); §§ V.A.C.S. Steam 64 Me. Mill State v. Co., gas Milling production) Mfg. other statutes listed Great Works & Me. 41 natural Lebowitz, supra p. 149 of at in note Lebowitz, Co., Thompson v. Chemical prosecuted.” supra, could be su- Stauffer pra (Tex.Civ.App.-Waco 662. See also Practice Commentary to S.W.2d [348 n.r.e.], writ ref d involved an 7.22, supra; judgment holding from a district court Thompson Co., void Chemical Stauffer Court, judgment of a Justice of the Peace (Tex.Civ.App.-Waco 1961) S.W.2d 274 writ enjoining the Justice of the Peace from ref’d n.r.e. issuing execution thereon. A *3 Three earlier criminal cases left consider charged by complaint was a criminal with corporation able doubt whether could be permitting gases fumes and detrimental successfully prosecuted possible as a de escape premises health to violation State, fendant. Guild v. 79 Tex.Cr.R. (1925), Article provided V.A.P.C. which Judge Lynch (1916); Interna S.W. the misdemeanor offense could be State, tional Publishing Book and Co. v. punishable by a fine not to exceed $100.00 Overt v. (Tex.Cr.App.1919); S.W. 526 upon conviction. The Justice of the Peace 260 S.W. (Tex.Cr.App.1924). issued a civil citation and copy attached a Guild discussed the impossibility punish complaint of the criminal thereto. It was ing corporation imprisonment,5 upon executed president gen- the vice Judge Lynch International Book and manager eral corporation. of the When Publishing Co. discussed the failure of the corporation appear trial, did not “person” term as used in the statute under case, prima State made out a facie and the prosecution brought was to include Justice of judgment the Peace entered a and Overt discussed corporations,6 reciting conviction corporation “ap- same matter imputing well as the peared in absentia” and assessed a $100.00 intent, and procedure the lack of bring corporation sought fine. The relief in dis- corporations into court.7 trict court and ruling obtained a favorable Guild, defendant, 5. In agent corpora- an of a laws." The Court reversed and stated that the tion, charged and convicted of violation of "persons” statute referred which did not "pure the affirmed. In statute was feedstuff law." His conviction was proper include "per- and that the response to the contention that the charge committing son” to was the individual agent invadid because it made the proscribed by the criminal act the statute. guilty principad, as well as the the Court wrote: general principle 'It is the that the shall be of law in this state Overt, defendant, supra, agent 7.In an of a person actually who commits a crime corporation, charged under the Net Con- therefor, punished whether he be Legislature. tainer Act of the 38th In dictum acting on his agent own initiative or is an the Court wrote: principal a law exceptions ... It is with rare our quoted "Section of7 the Act is also above. provides punishment corpora- of a penalizes ‘any person.’ It Section 9 is also set tion for the violation of a criminal statute.... says ‘person’ out. It that within the term prescribes punishment The statute violation a as a for its firm, any company, copartnership, included corporation, fine, imprisonment or in the coun- association, organization, ty jail, or both. If a was insol- vent, joint-stock companies and receivers and dis- way there would be no whatever of officers, directors, tributing agents, enforcing imprisoned and all a conviction of it. It could not be managers apart and imagine punishment either as of such concerns. We cannot Hence, pay money or for comprehensive failure to fine. a more list of those law, in order to the punished corporation." sought punishable. enforce the Practically it is essentiadthat to be held all agent who commits the persons crime shall be guiltless named should be held principal, therefor instead of his knowledge under our laws unless or willful- imputed bring ness could be to them. We personally criminals before the courts and Judge Lynch 6. In International Book and Pub- juries procedure pun- our under and enforce Co., lishing supra, or firm was jails ishment fixed confinement in the engaging convicted of the crime of in the busi- penitentiaries. Corporations, companies, emigrant agent ness of having an first firms, copartnerships, joint-stock companies, obtained a license from the Commissioner of prose- or associations could not as such be punishment Labor Statistics. The assessed wats brought cuted as criminals and days county could not be jail 30 appeal $100.00. and a fine of On courts; person Attorney before the and a law that Generadconfessed error on them, ground provision undertakes to so hold "there is no must be held of the law unreasonable, indefinite, in this state under which a firm or and of doubtful con- can be indicted or tried under the criminal struction. ..." prosecution. writ of there was no ing a corporation into court for criminal judgment upon “whoever” in Article plied.) victed conviction was tered an approval Corporation such, or in Procedure the for, appellant complains are matters which “It is our view that the matters of which decision Court of Civil was not included procedure Legislature if Justice of Peace error, can be ‘in Texas, injunction. appearance; to the method employed. The absentia;’ practical Supreme relief be afforded. There is “no reversible error.” Thus whereby was never prosecuted the following in the Code Criminal will void.” ground 695, supra, we cannot An procedure for bring- within the Court refused the was tried and con- arrested; (Emphasis did we basis: judgment misdemean- afford relief think that but give followed. pronoun nor en- rest its rested sup- our Anderson, Corporate ly 1974 Penal possible fessor bringing statutory fines said Texas reporter. court definition of nal Criminal V.T.C.A., With that “(a) In this Code: p. 231 *4 Specific Intent Crimes and Code statutes be broadened past Penal Code State Bar Committee and ^[******] for criminal Law, Mary’s statute, imprisonment. Professor Hamilton’s authority To overcome Negligence Code. Penal conviction rather St. summoning corporations background on procedural provisions for Code, addressed some of Pro- prosecution, which he Hamilton advocated a —The used in various Pe- § Law concerns. It 1.07(a), we abe Direction imposition appears Journal, than turn to the obstacles served as a subsequent- Offense of of Liability provides: embrace the im- ample Vol. into “(17) human ‘Individual’ means a be- Former Penal Code Article did define ing is who has been bom and alive. “person,” but was held that the word used therein extended only corporation ****** “person” as the who, or “party” or whose individual, “(27) means an ‘Person’ property by was affected the crime. Co (Empha- or association.” corporation, sis chrain v. 248 S.W. 43 (Tex.Cr.App. supplied.) 1922). Further, most of the Penal Code (9.1) 1.07(a) in 1979 was And added to statutes, § defining offenses, used the provides: term “whoever” or nonprofit indication corporations “(9.1) ‘Corporation’ includes were to be in cluded therein. cre- professional association statute, joint stock pursuant to ated It is not difficult why to see it could be companies.” said prior to the 1974 Penal Code “a corporation (Criminal Code, V.T.C.A., or a partnership 7.22 could not be indicted or Texas.” or Associa- Corporation tried under Responsibility tion), the criminal laws of Tex.Jur.3d, Vol. Law, provides: Criminal 161, p. 232.8 constituting an offense “(a) If conduct acting in behalf agent performed In 1968 Professor Robert W. Hamilton’s and within or association corporation of a treatise, Corporate Criminal Liability in employment, or scope his office Texas, 47 Texas Law pub- Review was is criminal- or association the ly responsible lished. In it he reviewed history defined: for an offense corporate criminal Texas, or corporations “(1) rather code where in this the lack of it and steps neces- subject sary made prosecution and associations of corpora- thereto; tions. In his advocacy nal liability he offered in this code in “(2) his other than treatise at pp. 77-85 proposed impose legislative purpose amendments to the Texas which a Penal Code corporations which were responsibility made on available the State Bar or plainly appears; Committee on the Revision of or associations . penalties 8. suit, provision "However in rare instances recovered in contra- punishment made for diction to corporations a fine imprisonment therefor.” Tex.Jur.3d, Law, violations Vol. statutes means Criminal “(3) by nal responsibility law other than this code of corporations and as- imposed, strict which a unless sociations. Where not in conflict with legislative purpose chapter, impose not to the other chapters of this responsibility criminal or code apply to corporations and associa- plainly appears. associations tions. “(b) A or association is “(b) In this code of Criminal [Code criminally responsible felony for a of- Procedure], requires unless the context fense if its commission was autho- different definition rized, requested, commanded, performed, * * * “(1) recklessly by: tolerated “(4) ‘Person,’ ‘he’ and ‘him’ include “(1) majority governing of the (Em- corporation and association.” acting board in behalf phasis supplied.) association; tion or “(2) high managerial (Offenses agent acting Title 5 of the Texas Penal Code Persons) in behalf of Against Chapter or associa- includes (Criminal Homicide). tion and within scope of his office or employment.” Code, (Types 19.01 Homicide), provides: (Autho- 12.51 rized Corporations Punishments for “(a) person commits Associations), part enacted as a of the 1974 intentionally, knowingly, homicide recklessly, he if Penal statute upon was amended in 1977. Such negligence or with criminal imposition authorized the of fines causes the death an individual. if convicted of a crimi- murder, “(b) Criminal homicide nal offense. ed.10 imprisonment No provid- murder, manslaughter, voluntary capital *5 manslaughter, involuntary or Chapter And 17A of the Code of Criminal sup- (Emphasis homicide.” Procedure was added in 197311 provide to plied.) procedural bringing rules for V.T.C.A., Code, (Criminal Penal 19.07 tions § into court regard to its criminal Negligence Homicide), provides: responsibility. provides 17A.01, V.A.C.C.P., Article part: in “(a) A person commits an offense if “(a) Chapter This sets out some of the he causes the death of an by individual procedural applicable rules to the crimi- negligence. 1975, (b) by personal injury, property damage, Subsection caused 9. was amended Acts or 913, 342, 4, 1, Leg., p. Sept. felony 64th ch. eff. 1975. other loss § commission of a misdemeanor, or Class A or Class B the court provides: 10. Said 12.51 § may corporation sentence the or association "(a) court, corporation pay by If a or association is ad- to a fine in an amount fixed judged guilty provides gained of an offense that a not to exceed double the amount or penalty consisting only, may by lost, corporation caused a fine a court which- corporation greater. pay ever is sentence the or association to court, "(d) by any a fine in an amount fixed not to addition to may sentence that section, provided imposed by by exceed the fine the offense. this "(b) adjudged guilty If a or is ad- been association may an offense judged guilty provides by ordered give of an offense that the court to notice of the including penalty imprisonment, pro- any person or that conviction to ap- court deems propriate.” specific penalty, (Emphasis supplied.) vides no sen- court 1977, pay 1917, Amended 768, Leg., tence the or association to Acts p. 65th ch. 1, court, § fine in an amount no to eff. June fixed 1977. "1977 exceed: Amendment. Raised fines in subds. $20,000 (b)(1) (3) "(1) $10,000 $20,000, felony any to if the offense is a from from $2,000 $10,000, category; $2,000, $200 $10,000 "(2) respectively; (c), A or in is Class subsec. inserted 'or if offense misdemeanor; injury, caused property damage, Class B or or $2,000 "(3) other 'loss’ if the offense is a Class C misde- and added by corpora- ‘or caused lost, tion to be greater’; meanor. whichever is "(c) (d).” added In lieu of the fines authorized Sub- subsec. (a) (b)(1) (b)(2) sections tion, of this sec- if a court finds or 11.Acts Leg., 63rd 2(D), ch. § gained money property association or or eff. Jan. through 311.032 of the Code Construc- “(b) An offense under this section (Chapter 311, Code) tion Act Government (Emphasis Class misdemeanor.”12 apply to the construction of this code.”14 supplied.) (Emphasis supplied.) V.T.C.A., Code, Government 311.005 § Legislature, recognizing (Code Construction Act—General Defini- years only jurisdiction in tions), provides part: in general bore following “The un- apply definitions responsibility, previ- aware less the or statute content which the ous roadblocks case law to the prosecu- phrase or requires word is used a differ- of corporations offenses, for criminal ent definition. remedy enacted statutes to * * * the situation. «(1) noted, Legislature As earlier defined “(2) ‘Person’ includes “person” in [V.T.C.A., both the Penal Code organization, government govern- Code, 1.07(a)(27), and the Code of § agency, mental subdivision business (Article 17A.01(b), Criminal Procedure V.A. trust, estate, trust, partnership, associ- C.C.P.) expressly so corpo- embrace ] ation and other entity....” rations. Legislature To leave no doubt the (Emphasis supplied.) similarly “person” also defined in the Code V.T.C.A., Code, Government 811.- § (Government Code, Act Construction 011(b), provides: 311.005). accusatory In the and defini- “(b) phrases Words and ac- part tional of most offenses found quired particular a technical or mean- (as Penal Code elsewhere) term “person” defined ing, legislative whether definition used qualification. according- otherwise shall be construed Observe that this was done (Emphasis ly.” supplied.) Code, 19.01, defining Penal homicide, (Construc- 1.05 question the statute in Code), tion of provides: case, V.T.C.A., this 19.07 “(a) The penal rule that a statute (Criminal Negligent Homicide).15 And the apply construed does not content to rest to this provisions code. The impose corpo- definitions code shall be according construed responsibility. rate criminal It also enact- terms, import promote their ed 7.22 of the general Penal Code as fair justice and objectives statute to indicate intention that effect *6 code.13 rations were to sponsible rendered re- “(b) Unless a is of its different construction the conduct act- context, 311.011, ing required by scope within employment Sections of its in 311.012, 311.014, committing offenses. fear 311.015 311.021 For there would V.T.C.A., Code, 12.31, offense, 12. alleged origi- provides Penal § the instant trial and that guilty appeal. one of a A Class misdemeanor shall be punished by Commentary 15.It is that the Practice observed "(1) $2,000; a fine to not exceed Code, 7.22, provides part: in Penal § “(2) jail confinement in term not may legal “For year; what kinds offenses enti- exceed one "(3) criminally responsible? ties be held Better both imprisonment." such fine and drafting question would have this easier where a made is convicted of a Class answer, comparison but between the 1970 Code, misdemeanor. See 51(b)(2). 12.- § yields draff and this section as enacted First, parts. in answer two definition offense, whether in this else- code or Formerly penal rule 13. the common law where, legislative purpose to must evidence a were construed was often statutes corporations in- cover and associations. This applied. offenses, recognize is in code tent easiest (a)(1), provided (b) most in Subsection because aforegoing Subsection of said 1.05 § The 1985, (Acts ‘person,’ them is de- use term Leg., ch. 69th was amended in 1985 479, 1, 69, 1.07 1985). fined section to include Sept. original eff. sub- The § association, identify (b) who commit ‘Unless is section read a different context 2.02, context, 2.01, example, the offense. For theft and fraud as required by the Sections 2.04, defined in this code cover entities but 2.05 and 3.01 3.12 the Code bigamy 5429b-2, (Article and incest do because the latter not Vernon's Texas Construction identifying Statutes) use term ‘individual’ apply Civil to the construction of actor.” code.” This subsection was in effect at the time

811 Graham, 167, 163 Tex. 354 S.W.2d 99 summoning procedure be tions (1961)that: added Chapter 17A was into court “ And to ‘If Procedure. Parliament does not of Criminal mean what the Code cannot corporations says, say it must fact that so.’ overcome Legisla- imprisoned, the jail or placed If this Court were to reach the conclu- fines V.T. a schedule provided by ture speculation legislature sion did not impris- Code, in lieu C.A., 12.51 clearly intend what it and unam- convicted. were corporations stated, onment where biguously we would still be with- authority change specific out Legislature could The intention of statute, terms of the where such lan- history, given the hardly made clearer guage plain unequivocal.” mean- and the literal reform' intended Appeals Court of reasoned that collec- involved. Taken ing of the statutes Chapter (1974) 19 of the Texas Penal Code tively, foregoing statutes furnish groups degrees unit; all homicide one overcoming the obstacles which basis for 19.01(a) implies that “Sec. whoever prevented prose- the criminal past capable committing criminal homicide corporations. cution of intent, capable must also be and knowledge, just neg- recklessness ... not It is the State’s contention that a ligence” that it corporation is unfit “readily apparent “person” is a general under to intentionally definitional statute of Code, the Penal knowingly 1.07(a)(27), cause the death of an see also individu- 17A.01(a)(4), Art. thus, not, al — ” The V.A.C.C.P., would with- Government 311.- stronger, out a clearer indication and since the from the crime of criminally negli Legislature, gent hold that homicide can be committed “per criminally responsible (V.T.C.A., son” homicide. We do 19.07), it fol agree. lows that the crime can be committed corporation. People v. agree. We Ebasco It is obvious Appeals’ that the Court of Services, Inc., 77 Misc.2d 354 language opinion N.Y.S.2d in its should “[W]e (N.Y.1974), 807 is instructive. There slowly_” the make haste came from the lan court wrote at 811: guage “Since no definition in Commonwealth v. Punxsutaw ‘person’ applied ney, actual 24 commit Pits.Leg.J. Pa.C.C. ting of the homicide has (1900)16 been (refusing included to hold railway a street in the article, homicide company criminally liable for the crime of court must look to the broader in ejecting passenger). definition of assault conclusion of And the ‘person’ contained in the overall definitional our Court of article of the Penal Law.” Looking to legis was insufficient evidence of the (§ definitional article found 10.0017) impose the Court lative intent to corporate criminal public included “a under 19.07 of the Texas Penal private corporation.” The conviction apparently was Code was influenced upheld. See also Commonwealth v. in People McIl v. Rochester Rail same wain Lines, School Bus Inc., Co., way Light & 102, 107, Pa.Su 195 N.Y. per. (1980); A.2d 413 State v. Ad N.E. Since the turn of the *7 justment Department Bureau, Credit century when these cases were decided Inc., 156, 94 Idaho 483 (1971). P.2d passed 687 much and has bridge, water under the many bridges new In have been built. Hatten, In State ex rel. Vance v. 600 fact surrounding landscape the whole has (Tex.Cr.App.1980), S.W.2d 828 we said: changed. Punxsutawney longer no “Arguments respondent made any precedential value, see Common legislature did not intend for the McIlwain, supra, wealth v. ester and even Roch statute given meaning. its literal Railway legisla itself indicated that However, agree we must with the maxim change tive action could the result there Authority Brazos stated in City River reached.17 Quoted 16. in Commonwealth v. (1984), extremely McIlwain explains the author 246-249 Lines, Inc., School Bus Pa.Super. 283 Appeals 423 A.2d Court of well how the decision of the (1980) 413 418. juris- instant case is inconsistent with other dictions, some of the authorities relied and how 17. Anderson, In Section IV of Corporate Crimi- date, "unpersua- upon by that court are out of nal Liability Specific Intent Crimes and sive, point.” off Such discussion need Of- as well as Negligence Criminal fenses Direction of —The clearly applicable. repeated not be here but is Law, Mary’s Journal, 231, 15 St. Law

812 County, Cal.Rptr. 197 C.A.3d 149 Appeals The Court of that those stated 1983). (Court of Appeals, 5th Dist.

jurisdictions which have addressed the is- sue . are An examination of decisional law from responsibility per- divided indicates that where there are other states corporate rape, sonal crimes such homicide or responsibility statutes agrees though still that a cor- statutes, ap- to our own Texas similar poration requiring cannot commit a crime a pears consistently have been held that specific authority intent.” No is cited. specific is liable for intent negligence. Amer.Jur.2d, 959-960, crimes and offenses of criminal In 18B pp. it is stated: Kentucky v. Fort Commonwealth of accepted “It is now generally that a Co., Inc., (Ken ner LP Gas S.W.2d 941 corporation may be indicted for crime 1980) (Discr. Appeals, Re tucky Court of essential, specific which a intent Denied), the man view indictment involved essential, that the intent and that the corpo slaughter degree. the second may intent imputed be had struck rate truck with defective brakes two corporations.” (Emphasis children, one, killing they while supplied.) alighting after from crossing highway The sustained a school bus. circuit court Numerous cases are See also Cor- cited. poration’s rely- motion to dismiss the indictment Liability Criminal Homi- cide, upon Commonwealth v. Illinois Cen- ing 4th, 4(a), 1021, 45 A.L.R. 1030. Co., Railway tral Ky. 153 S.W. C.J.S., Corporations, In 19 pp. The Illinois Central case had 1075-1076, pointed out it was that: corporate respon- been a definitive case “A may liable sibility many for criminal conduct for for crimes which specific involve a ele- Basically, holding years. case ment of intent as well for those which do “corporations was that cannot be indicted not, and, although require some crimes criminality for offenses which derive their personal, such a malicious intent that a intention which consist in a evil corporation is incapable considered apper- violation of those social duties which committing them, nevertheless under the subjects.” tain to man and The proper circumstances the criminal intent One, things. predicated on two was agent of its imputed to it so as to separate punish- in 1913 there was no liable, render it the requisites of such provided by ment for Ken- imputation being essentially the same as two, tucky statute, and the court was not required impute those to corpo- malice willing, prosecution, in a criminal to extend rations in civil actions.” “person” the definition the word Corporation’s See also and cf. Kentucky 475 of the statutes to include § corporations. Liability Homicide, A.L.R., 4th, ruling On dis- Kentucky missing indictment the recognizing After that some courts have Central decided that Illinois Appeals date, cannot guilty light must be considered homicide in specific absence statutory changes holding. statutory and its total provision, it C.J.S., is stated in Corpora- observed Kentucky Court tions, 1364, p. 1077: imposing there was now statute upon a second “However it has been said that a defi- statutory general definition of nition of certain forms of manslaughter corporations, which included may be formulated which would be appli- punishment imposed fines statute cable to and make it liable corporation for of of- upon a violation for various acts of misfeasance and non- The court these fenses. concluded feasance when resulting in homicide. *8 Illinois Cen- statutes were envisioned Thus, a corporation has been held subject tral which might support an indictment. prosecution to for involuntary man- The order to dismiss the indictment was slaughter where there nothing was in the almost reversed. Our Texas statutes are definition of the crime punishment or the Kentucky to identical statutes. provided which would impossible make it to hold corporation a liable.” See State Department Adjustment State v. In v. Lehigh Valley Co., R. 685, 103 A. Bureau, 90 Inc., 94 Idaho 156, Credit 483 (1917), N.J.Law 372 and Granite Con- (1971), con- P.2d 687 struction Superior Co.v. Court Fres- extortion, special victed of the offense a of of

813 cases additional are number There intent On contended crime. statutes discuss states which meaning from other “person” within the it was not a Texas statutes similar to not that are statutes and could be of the criminal liability for assign corporate specifically which crime unless guilty found of crimi and offenses crimes specific intent in the statute involved. The provided for See, e.g., Commonwealth negligence. nal Supreme Court noted that another Idaho state statute various statutes Co., N.E.2d 33 275 Finance defined terms used v. Beneficial Myles Corp., 53 “per- (1971); People v. Lee including the term (1976); 873, State 385 339 corporation as A.D.2d N.Y.S.2d son” embraced a well 1189, Lodge No. BPO City Elks person. Oregon found the v. as a natural Court (1974); 124, 900 Elks, Or.App. 520 P.2d controlling 17 statute to be definitional Sons, & v. J.P. Mascaro corporate liability that fense for the of- Commonwealth 8, A.2d 1050 Pa.Super. 266 402 imposed. could be As a of extortion Anderson, Lia Corporate Criminal jury charge, also a result of error Crimes however, bility Specific Intent the cause was and re- reversed Of for re Negligence—The manded. Di fenses Mary’s 15 Law Texas Law. St. ction In Superi Construction v. Granite Co. (1984). See also States 231 United Journal County, Court Fresno 149 Cal. Schaick, (C.C.N.Y.1904); F. 592 v. Van App.3d 465, A.L.R., Cal.Rptr. 4th, Co., 51 N.Y.2d People v. Warner-Lambert (Court Dist.1983), of Appeal, Fifth 414 N.E.2d 660 N.Y.S.2d corporation’s Court denied the petition for 1031, 101 U.S. S.Ct. (1980), cert. den. 450 peremptory challenging writ mandate its 68 L.Ed.2d manslaughter following indictment And in Granite Construction Co. Su- pow accidental death of seven workers at Court, perior supra, which held that a plant er by corpora under construction corporation may prosecuted for man- Appellate tion. The California Court held slaughter, found that corporations may prosecuted intent, reckless, tions can form mit acts and com- manslaughter provisions since agent. its The Court penal state’s “person” code defined to in noted that California had well established clude a as well as a natural impute responsibility methods person, manslaughter provision of to corporations, so that a penal codification of the by code scope did not limit act intent, imputing negli- rules for gence, persons, provided natural and the code unnecessary. or recklessness was appropriate punishment The liable if corporations Court reasoned that are crimes. The argued that intent, specific they for crimes of Legislature had not intended to make cor equally should be liable crimes porations responsible for crimes when the negligence penal recklessness. code was rejecting enacted. contention the Court observed tradi In Brickley, Corporate Criminal Liabil- tional notions of play fair and substantial (Evolution ity, Liability), Vol. I justice applying offended 31, it was written: meaning clear of statutory terms, for when gave express recognition “As courts language clear, a statute’s plain capacity the crimes to commit meaning should be followed. intent, requiring general open hostility Commonwealth v. theory McIlwain School Bus retention ‘fanciful Inc., Lines, (Pa.Super.Ct. A.2d 413 in process of abandonment’ surfaced and 1980), private corporation may brought forefront consideration of be held question liable for homicide there whether remained In resolving statutory vehicle. drawing con sound reason for a distinction problem presented imputing general specific struction the Court held between Pennsylvania defining corporations. all, statute intent rations have been held for intentional After vicariously included a that liable general corporation statute, was a and including torts assault while the homicide battery, prosecu- vehicle statute and malicious libel did specifically corpora not itself include a more tion. Because it would be no diffi- tion it did use that “any person,” impute the term theoretically specific cult in- subject tort, such was sufficient to cor tent for a crime than a poration point to criminal remaining dispute ques- for homicide People vehicle. See also v. Ebasco Ser whether the lacked ca- *9 vices, Inc., supra. pacity sug- to form The evil intention. 814 Code, subject met little thereto. See gestión that it did was with 7.22(a)(1).19 patience. corporation may ‘The same that creates the crime, create the Appeals judgment The Court of is re- Legislature punish cannot assert that the versed and the cause remanded to that its own because cannot make creature court for of appellant’s points consideration violating capable a creature law of error. prop- ... discussion.’ The does not osition bear simply was untenable. CLINTON, Judge, concurring. “Beginning the late nineteenth and troubling aspect Judge dissenting opin- One continuing early into the twentieth centu- Teague ion is its utter failure to ry, wrestling this issue be- courts precisely of articulate wherein gan breaking down the last barrier process ran afoul due in V.T.C.A. Penal imposing corporations range the full Code, Chapter Subchapter B. As best persons of liabilities to which natural understood, premises may his are they subject. During period corpo- were Subchapter B was not enacted “under its properly subject rations to criminal found to be police power” 7.22(a)(1) imposes and § prosecution for such divers upon corporation “strict, automatic crimi- manslaughter.”18 offenses ... even liability” for acts of em- (Footnotes omitted.) ployees agents. See pp. 808, 809, at Corporate Ac- See Criminal Brickley, also 810, 811. countability: History Ob- an Brief Judge Teague in perceiving “public errs servation, Washington 60 University Law welfare derived police offenses” are pp. Quarterly, 393-423. power poration whereas offense which a cor- history corporate Given subject penal made under the liability prior in Texas to the 1974 Penal law, code or some other Code, provisions the various of the 1974 responsible through 7.22(a)(1), is not.

Penal Code and other statutes enacted to Call may, them what one the latter is an bring change, statutory about the clear police power exercise of as much as the language, analogous and the case authori- former. ty, reject reasoning we of the Court of and conclude law, Of course it is hornbook supported bemay criminally prosecuted mis- authority, for the “police pow- wealth criminally negli- demeanor code er” offense is an of sovereignty by attribute gent homicide under its lawmaking body may pro- enact laws to 19.07, peace, health, corporations safety, have made tect happiness been Schaick, Citing Corporate United States v. Van 134 F.2d Liability Really Criminal Necessary?, (C.C.N.Y.1904); R.R., Lehigh Valley (1975-76), 592 State 29 Southwestern Law Journal 908 (1917). 90 N.J.L. 103 A. 685 the author of the comment discusses the deter- corporate liability rent effect of ques- arguments against 19. We well aware of the are tioning imposed whether the fines will result in imposition responsi- any more than a engage ‘license fee” Hamilton, bility. acts, Professor in favor illegal punish or whether the fines will treatise, responsibility, Corporate stated in his innocent shareholders or whether the fines will Texas, Liability in 47 Tex.Law Criminal Rev. passed on to It consumers. was observed "Further, (1968), jurisdic- Texas and other juries quicker are to convict recognizing tions not managed individuals, than etc. One commentator has along struggle many years with- alia, urged, inter that an in- economic— deficiency in out evident law enforcement.” quiry supposed into the effectiveness Lebowitz, Developments In Texas Cor- Recent rate criminal be undertaken and the I, poration Law—Part Southwestern Law requirements mens rea of the common law be author, (1974), discussing Journal V.T.C.A., rigidly Mueller, adhered to. Mens Rea and the 664, stated, 7.22(b), p. Corporation, (1957). 19 V.Pitt.Law Rev. 21 hand, felony responsibility "On the for a other Corporate also and Liability cf. Acts offense is limited cases where commission Company Policy, Georgetown Violation initiated, performed recklessly either to- Law Journal 547 by majority acting lerated of the board in their legislation Legisla- wisdom of is for the capacity by high managerial agent such or construing ture and not courts in stat- acting scope Statutes, generally Tex.Jur.2d, utes. See limits, employment. his office or Given these 176; Hatten, Vance v. 600 S.W.2d likely prosecu- many felony (Tex.Cr.App.1980). Coleman, (Emphasis supplied.) tions." Is

815 whatsoever, this any limitation Without 12 Tex. people. of the general welfare granted petition for dis- the State’s Court Law, 610-611, Po F. “Constitutional Jur.3d cretionary in order review the review Power,” Manifestly, in its broad lice Texarkana Court of decision of the in power is exercised in tak police sense est Sons, State, 649 Vaughan v. and Inc. suppress and prevent measures ing 1983), de- (Tex.App.-6th S.W.2d 677 clared that a City order, State v. preserve crime and to corporation in Texas Dallas, 319 (Tex.Civ. 774 S.W.2d offense of prosecuted could not criminally 1958), 160 Tex. affirmed App. — Dallas had been negligent homicidethat (1958), enacting 737 331 S.W.2d of its previously by one or more committed establishing maintain and and penal code agents. employees Contrary this, In justice system. ing a criminal decision, majority appeals’ court of preserve in its acts selfdefense to State generally holds opinion of this Court life, by protecting its citizens in existence doing in Texas private corporation business Flake, 67 parte Ex happiness. health and strictly automatically can be held (1912) 154 149 Tex.Cr.R. S.W. negligent acts nally Rehearing). liable for (Opinion on agents, provided at that employees Teague erroneously Judge finds Just 7.22(a)(1), all of a later the trier of fact finds that presumably Sub- date unreasonable, B, supra, arbitrary chapter employees’ agents’ personal negligent capricious actually acts criminal. this Given liable for acts grant, Court’s unlimited what the court agents does of its because it held, appeals the State stated and what require “proof appellant corpo- not ration itself did argues discretionary re- petition something criminally view, majority I dissent respectfully wrongful.” at 820. opinion’s “put some meat on the failure theory liability The of strict is not un- corporation dog” old that it bones that See American precedented, however. Corp. Plant Food v. 679 S.W.2d has now discovered exists. I also dissent (Tex.Cr.App.1979), for the of- a conviction give. other I will reasons that pollution fense of water under Water Code dissent, Although I I nevertheless ac- prohibition person dis- “[n]o knowledge law that addresses the of, charge, or permit discharge or cause civil and liability of private cor- adjacent any into or waste water poration in Texas and elsewhere has come pollution state which will the unless_” cause water long way year since the Pope 1250 when Id., legis- n. 1. From at Innocent corpo- IV decreed that because a history Legisla- lative ture intent was Court found the ration, although apparently “per- then a a strict “to create son”, did not a soul have could be proof standard necessary.” which no of scienter is damned, it could not be excommunicated Id., at 685. Also see Ameri- from the Church. See Brickley, Corporate Sate, Food v. Corporation can Plant Liability, page (1986 edi- (Tex.Cr.App.1974). In both in- S.W.2d tion). pollution the water could stances occurred have As to corpo- what the boundaries of civil acts or omissions of indi- liability might future, rate be in the this viduals, employees of the must, course, Court defer to the Su- ration, “corporation, than rather itself.” preme see El However, Court of Texas. Corporation al., Chico Poole et TEAGUE, Judge, dissenting. (Tex.1987). S.W.2d 306 Given what Please, reader, dear me: Con- believe majority states, opinion it should be obvi- trary you might surmise from this to what anyone ous to almost should in the future that this Court will or majority the law opinion, that ad- Court’s apply subscribe to and liability, dresses as re- possible principles where the law that by many articles and flected law review Supreme announces this area subject, big court decisions mess. majority opinion actually nothing one of the law. must, however, report: sadly I Also, Legisla- the members of the after absolutely does digested thoroughly ture clear area the air of the we soon see opinion, predict I will fact, majority opin- law. find that the more strict and automatic statutes actually confusion ion will add to the next example, For enacted. presently exists in this area of our law. Houston, way in Legislature should be which I personally able to can session *11 not, attest and automatic criminal liabili- enact ty strict because of the amount of making any parent or traffic that natural travels this stretch of statute the road night, where, legal guardian young day or custodian of a both vehicle has and if one’s motor criminally automatically strictly quit child running, one would like wrongs of personal negligent to see his quit liable for the motor running. vehicle Sev- later, eral hours approximately six, after child, finds provided that a trier of fact unsuccessful rescue efforts other com- negligent acts that the child's arejriminal. pany employees appel- to locate reasoning actually It is occurred, lant and his truck had which de- opinion its conclu- majority uses to reach lay occurred because the driver of the sion, doing busi- gave truck wrong location, them the he statutory ness in Texas falls within the missed his miles, then location several “person”, that concerns me. What term another vehicle drove into the back of the actually in the fact that concerns me lies truck, causing untimely and unfortu- opinion give fails to the bench nate deaths passenger. driver and a any guidance this as to bar of State truck, The driver of the the truck’s who was then in concept how the of strict and automatic cab, only slightly injured. liability, approves, which it either The charged driver was prosecuted but not expressly implicitly, applied is to be for committing the misdemeanor offense of involving corporate future criminal cases criminally negligent homicide, apparently criminal defendants. because he testified for the State. Another Although appellant corporation employee, who was several miles distant expressly challenge in this cause did not from the location where the accident oc- the con- the trial court or direct curred, was also accused of committing the Code, V.T.C.A., stitutionality of same offense cause he was prosecuted but was not be- 7.22(a)(1),upon majority opin- which the § given immunity prose- appellant corporation to hold the ion relies cution and testified for the State. Based strictly automatically criminally liable upon the truck driver’s and employee at personal negligent employ- of its acts the company’s headquarters acts, negligent driver, negligent ee-truck which acts were charged, was also prose- coloration later determined trier fact to be cuted, and for committing convicted nevertheless, of negligence, acts I criminally negligent offense of homicide. find that if the issue not before this Court $5,000 fine punishment, was assessed as it is expressly, at least before this Court I passed which assume has been or will be on to appellant corpora- consumers implicitly. event, In any in the interest of however, judge, tion. see fit to assess a “scarlet trial did not also judicial economy, this Court should address type letter” this of However, issue at this time. because corpora- punishment, requiring such as give, reasons I I will would not first place tion to all its trucks on the sides of 7.22(a)(1) declare unconstitutional, § stating corporation” signs “Killer facially either applied, because it is violative process of the due and due course THIS CORPORA- “BEWARE—CAUTION: of law clauses of respective Constitu- TION HAS BEEN FOUND GUILTY OF tions, would, time, but this declare KILLING ANOTHER HUMAN BEING”. that the information in this cause was sub- compare See and Goldschmitt v. ject appellant to the corporation’s motion to Dist.1986), (Fla.App., So.2d 123 where quash. Alternatively, however, I would pro- approved, that court bation, as a condition of vote to al, 7.22(a)(1) declare unconstitution- requirement the trial court’s facially both applied, and as because it the convicted defendant to the that cause affix process violative of the due and due bumper of his motor vehicle the label course of law clauses respective “CONVICTED LI- D.U.I.—RESTRICTED Constitutions. today, After CENSE”. assume that some will, judges trial after a of our innovative The facts of this cause reflect that what strictly and au- been found happened many happened has to the of us also tomatically committing criminally liable appellant corporation’s truck driver here, a similar offense as was committed cause, assigned namely, his motor homicide, assess quit running; vehicle at the most unex- type punishment addi- “scarlet letter” pected place and undesirable time and —a See, 12.51(d), any which tion to fine. little after noon in is now a feeder what appears judge trial expressly authorize a lane that on what often terminates will type addition hope, punishment to assess this ultimately be, Free- we the 290 North should, 19.06, fine assessed. Such the State alleged negli- course, equivalent assessing totally upon relied corporation. penalty corporation’s for such a death acts gent finding implicit trier of fact’s 7.22(a)(1), neg- fact negligent acts holding, authority for majority opinion’s finding acts, then auto- ligent corporation may provides that imputed appellant matically criminally liable automatically However, 7.22(a)(1). Art. pursuant to *12 negligent act for the misdemeanor the auto- provide for 21.15, supra, does not agents. employees or There acts of its by acts negligent of imputation matic procedural this exceptions under are accused, appellant the party to the third of that copy the information statute. party”, “a not shown to be was against appellant corporation the filed and 7.02. 7.01 § see As “Appendix hereto A”. is attached as clearly information void. is This therein, negligence, of easily no act seen dissenting, does follow I In it not that by of allegedly either that was committed disagree majority opinion’s pri- with the corpora of employees two named general, holding, mary, albeit that tion, facially an that would consti act in corporation operating be Furthermore, gross negligence. tute but criminally prosecuted for V.A.C.C.P., 21.15, contrary Art. which who, wrongs agents or employees of its act or of expressly requires that the acts wrong, they commit the criminal when negligence going rely State at that moment in time acting on behalf upon negligence establish criminal and within the course alleged the accused against must in the scope employment. of their That information, and “in no event shall it course, would, comport of with the former allege merely the ac be sufficient governed law of this State “accom- cused, offense, committing in acted accessories”, plices which is no more. only negligence”, with ... criminal it was Today, however, liability person of a third alleged in this information that the accused acts committed for the criminal another of committed the offense person governed by par- is now the law of more, negligence”. this “criminal Without ties, 7.01 see totally accusation is insufficient to accuse 7.02, law is not provision which our committing appellant with disagreement implicated My this cause. wrong criminally negligent the criminal opinion lies how the with v. Graham Utecht homicide. go- general that it makes broad State, (Tex.Cr.App.1983); 657 S.W.2d 99 ing applied in the future and not run State, v. Cole (Tex.Cr.App. S.W.2d process and due course of afoul of due 1977). And, no more. Given respective Constitutions. law clauses 21.15, wording supra, Art. plain it should violating I provisions, those sacred Without anyone obvious to almost that the infor done, it can do not believe that allege would, not mation in this cause did I is the reason as an alternative negligent 7.02(a)(1) criminally measure, offense of homicide vote to declare uncon- against appellant corporation, stitutional, facially applied. and for and as both re should be reason conviction the plain wording Given and clear dis versed and the information ordered 7.22(a)(1), it is clear to me that however, opinion, The majority missed. here, type misdemeanor offense as appellant that the does not discuss fact homicide, nally negligent agree with the expressly implicitly, either appeals court did trial attacked in the court information clearly private corporation intend that a for its of omission. defects strictly criminally Texas could be held solely liable negligent appellant corpora- to convict order homicide, wrongs see committed

agents, personal negligent acts are strictly criminally Honeycutt liable. See later 417, 421, determined trier (Tex.Cr. of fact to 627 S.W.2d fn. criminal, or, did, (On submission.) been if pas App.1982) original Texas, faux however, lies in the enacting fact that in as reflected the fact that the above strict requirements liability imposed only statute it has overlooked the been law, of a process due course and instance a violation traffic due of law. jurisdictions, always as is has true most Hamilton, Professor whose law review upon looked strict criminal majority opinion article the heavily so relies because, Hippard, Professor disfavor authority, following stated the Unconstitutionality see “The of Criminal why corpo therein: “I could see no reason Liability Argument Fault: An Without rations differently should be treated Rea,” a Constitutional Doctrine of Mens (that regard individuals in this Law among Houston Review oth should not have the pro benefit all the ers, pointed imposition out: “The process).” tections of the criminal Hamil proof of criminal ton, “Corporate Liability”, 47 Tex blameworthiness not flouts a basic yet, Law Review at 76. And under *13 premise law, our the crimi [that 7.22(a)(1), any private doing pun nal law is to be used to condemn and always business in Texas will be treated personally ish someone who in has acted differently from a person. human Does criminally blameworthy manner], but vio not, itself, 7.22(aXl) in cause to be un constitutionally supported lates our belief constitutional respec because it violates the in significance dignity of each indi protection equal tive clauses the Consti ability and in vidual his to choose his own tutions? destiny.” 7.22(aXl), private Under when does a A noteworthy exception to the rule that corporation in Texas know that it commit- strict criminal statutes are looked wrong? ted a criminal easy. The answer is “public with disfavor is of- welfare Much like one who has been struck fenses”, represent society’s which offenses know, lightning will will attempts regulate might to nuisances that exactly know at the moment in time when general affect be detrimental to the trier of fact returns a implicitly verdict health, safety, and welfare citizenry.1 expressly stating that because the are, course, pur- These statutes enacted employees tion’s to found police govern- to the power suant have personally committed a misdemeanor actually regula- ment. These crimes are offense, which it has now determined to be measures, tory regulating sensitive areas criminal, is to be such drugs as the distribution of food and automatically criminally liable for commit- general public, and are enacted to ting wrong. that protect public and maintain social order law, In criminal the term “strict criminal public over general which the is unable to liability” concept per- embraces the regulatory control itself. These offenses son who commits an act in violation usually just are malum in se and not ma- may law be held criminally liable even prohibitum type lum offenses. The burden though might he any be innocent of dealing of the hazards inherent in with Texas, For example, intent. in the such sensitive areas must be allocated instance where an individual violates a traf- “larger good” the interest to those law, fic driving such as while intoxicated or position who in the to prevent best speeding, culpable mental state is not a al., Crime, harm. See Arkin et Business requisite charging the accused with 4, Chapter Vol. 16. Also compare see and committing those offenses. If the individu- Sayre, Offenses,” “Public Welfare 33 Co- act, is, facto, al commits ipso he lum.L.Rev. 55 1. Given the phrase context which I use the totally point attempt misunderstood the “public offenses”, welfare it should be obvious make at this time. Clinton, Judge opinion, concurring see his acts, gent holds that Hippard, in his well Professor above non-police power enact legislation to hold a article, implicitly advo- written law review private corporation criminally liable im- exceptions, no cates there should be puting ordinary acts of should enacted that ever be permit use criminal laws negligence would jts (1052). Although I the blameless. trier punish by some determined are later general agreement proposi- with his I find am acts. fact violating should be used that criminal laws not tion occur without cannot such blameless, part compa- I must punish lawof course and due process due “public it ny him comes to the when be- constitutions respective of the clauses Hip- I am unable to subscribe to welfare”. unreasonable, arbitrary, such is cause I do not find pard’s viewpoint because stated, because previously As capricious. general public equipped where 7.22(a)(1)permits of such protect itself the distribution humans, differently than treated drugs food; or tainted impure things protection equal violative patently stringent liability, strict even civil clauses. inspec- licensing requirements, strong how crim- I am unable to understand regulations, as easily seen on effectively cause our “absent inal law can that is telecast “Marvin Zindler” show will, acts, negligence you if minded” nights Distri- Houston most of the week. possible, I If cease to exist. that were is, impure drugs or tainted food bution a law be immedi- advocate would act, view, my a malum in se and such Legislature. ately enacted our proper subject regulation through our Again, I emphasize: The criminal *14 law, effectively can deal the criminal which corporation this not instance is violating corporation penalty. death upon regulatory based some form of However, excepting “public of- welfare” type which statute can be classified as fenses, agree I wholeheartedly with Profes- statute”, “public a welfare and find can Hippard it im- constitutionally sor that is public 7.22(a)(1) policy justification in § permissible to enact strict criminal laws might finding that warrant that any “person” that criminalizes without corporation’s liability predicated upon is a fault, 7.22(a)(1) obviously as does. “public welfare statute.” I find con- instance, that be “means should strictly that private clude criminalize a requirement, 7.22(a)(1) rea” which does corporation doing business in Texas for require. not personal negligent criminal acts of em- its instance, Legis- Furthermore, ployees pursuant 7.22(a)(1), or agents, to § 7.22(a)(1) enact did not of Texas lature amounts to arbitrariness and nonsense. that legislation power as police its under if the Even “knowingly” word into read corporation for private criminalize would 7.22(a)(1),I still could not understand how Here, another. conduct of negligent criminalizing that justify would private appellant liability of the the criminal personal negligent acts solely and determined is established ration agents employees, which are later deter- abso- a strict and through the enactment criminal; mined trier of to be some fact law. procedural lute criminal liable, civilly yes; liable, criminally no. taking into opinion, majority Based upon the majority’s reasoning, offense an the distinction between account Legislature this State is now welfare and public of the on behalf created legislation free to enact that impute is unrelated to would totally that an offense welfare, i.e., public making negligent it activity by per- a third private corporation for a son who is under the control of another automatically person, held individual or responsible parent. such as a If law, personal that is the negligent acts of its em- then the law is truly an ass. law, If ployees that is that are later determined El Corporation Chico negli- Corporation, some trier of fact to be criminal Joleemo see supra, get bility analysis are as devoid of reasoned things you ain’t ready to come because negligent rejecting liability: are the Texas cases yet. nothing Parents seen They either assume children, ready without discussion that you may get also because corporations should criminally respon be members of the once the merely argue sible or opinion I that completely digested majority long ‘person’ falls predict it will not before a child’s within the term used some be See, example, acts, statute.” which later deter- Pennsylvania inferior court’s decision of fact, mined be trier of some v. Commonwealth Mc Ilwain School Bus imputed parents, child’s will who Lines, (1980), Pa.Super. 423 A.2d 413 are, time, at that instant criminal- majority opinion upon so which relies his, her, solely ized because or their child heavily. Pennsylvania A case from that criminally negligent personal committed a point much closer in that Su State’s act. preme Court’s decision of Commonwealth anyone that now It should be obvious to Koczwara, v. 397 Pa. 155 A.2d 825 bridge passed the water has under the (Pa.1959), in which that court the author of the it is time for liability, which is vicarious absolute based opinion the motor on this Court’s to restart respondeat superi- the tort doctrine of majority opinion, apparently has un- or, “petty must be limited to misdemeanors expectedly untimely quit running, involving only monetary light fines.” Giv clearly explain more negli- how possible punishment en the gence corporation’s can be corporation, assessed in this imputed to solely 12.51(d), see there is no misdemeanor crime stigmatize reason criminalize and for which a guilty found corporation. categorized can be or classified a “petty appeals I find that the court What Spaeth misdemeanor”. As Justice forgot opinion is the to state follow- Pennsylvania Superior put it in the ing: slowly “We should make haste when opinion Com concurring that he filed imputing is in the direction of individ- Koch, monwealth Pa.Super. ual or a personal negligent (1982): A.2d “But to label [a another, acts of which are later determined corporation], a tortfeasor but a *15 criminal, to be which automatically criminal- killer’ —for ‘criminal that is how one con izes the corporation.” individual or a [criminally negligent victed homicide] instance, In this issue is whether labeled —seems to me to serve no useful private corporation can summarily be held purpose. compensate It doesn’t the victim. any personal criminally liable for negligent negli anyone being It won’t deter [from by act committed employee agent, an or that gent in the ... It can humil future] criminal, turns out to be and there be no ne- iate the him the defendant inflict cessity corporation to show that the had any damage reputation economic losses and connection whatsoever with the commission having incident to a criminal record ...” personal of the actual act Given the fact that the issue here does employee agent This, committed. not application involve the police course, is strict and automatic criminal li- powers State, of the given and also the fact ability at its best. imposition that of criminal liability usually having After read the decisions other requires proof Appellant corpora- that jurisdictions that majority are cited something personally tion itself did opinion, certainly disagree one cannot with nally wrongful, I per- ask: As far as the following Professor Hamilton’s statements: negligence act sonal that caused the hand, practically “On the other all other cause, per- death of the victim this what jurisdictions common-law recognize corpo- sonal-negligent appellant corpo- act did the liability. rate unanimity, This commit, personal negligent ration act however, impressive might less than first was later determined to be criminal? How appear. upholding Most cases criminal lia- put corporation was the on notice that above, en going it is quit running truck was obvious me that the. when it did appellant place did, corporation implicitly and at the a mini- it after its driver had mum successfully delivery? contended direct made a How could private doing corporation predicted have business in Texas cannot be every driver would not pre- take liable reasonable solely personal negligent acts of its caution high- remove the truck from the agents, which are later de- way? How could the pre- occur, would much dicted that collision ap- termined to be criminal. The court of death would result? Predictabili- less that peals appellant sustained corporation’s alas, is nowhere ty foreseeability, to be point of error. majority opinion, in the which should found majority opinion This Court’s has disa- Corporations, be entitled “Private Beware. greed with appeals holding, the court of Another Almanza Terrible been and holds that because the offense of aggressive and turned loose asser- criminally negligent homicide may be com- majority of dastardly tive this Court to do because, by “person”, mitted defi- you!!!” deeds to nition, “person”, a corporation is a and a court, appellant corpora- In the trial “person” can commit the offense of crimi- tion, through attorney, sup- asserted in homicide, nally negligent ergo, quash port of the motion to the information prosecuted can be for the of- filed, Jury he that “The Grand criminally negligent fense of homicide. County, charge attempts Harris Having conclusion, majori- reached that Defendant with offense of ty opinion’s motor, much like Homicide, Negligent Criminally which is an tion’s employee’s truck’s motor did in this capable offense not of commission cause, unexpectedly quits and untimely corporation or business association rea- running. given I have concluded that requirement Criminally of the in the son implicated case, issues that are in this Negligent Homicide ex- Statute majority quits soon, opinion too needs ists a of mind at the state time of up cranked and driven more a few gives occurrence incident which rise Otherwise, miles. I fear that charge.” Unfortunately, the motion opinion linchpin will be the for much bad discussion, quash does not contain regarding corporate argument, or authorities. It did ex- this State. challenge pressly constitutionality implicit appeals’ agree I the court 7.22(a)(1), either 7.22(a)(1) nothing in that there However, applied. facially or as find that legislative indicate a might reflect implicitly challenge. made that might vicari- be held intent appeal, Ap direct Court of On Sixth negli- criminally liable for the ously strictly peals Vaughan 649 S.W.2d 677 “person”. gent acts another 1983), (Tex.App. only addressed the *16 — 6th Company In Standard Oil of error, corporation’s point first of appellant States, 1962), United (5th F.2d phrased which was as follows: “Penal code Judge agreed Circuit Brown that “a serv- and other provisions corporations of artifi acting ant is not the scope within of his type to any cial entities do not extend employment unless his acts are motivated of criminal homicide. Therefore the trial by purpose to benefit the master or ... appellant’s failing grant erred in court to to further the master’s If this business.” motion to set aside the information.” true, is, I and I believe it must ask: How brief.) 4, appellant’s (Page appellant private corporation does a benefit from corporation’s attorney on reached negligent employee, acts of an to the ex- following "For the reason conclusion: neg- tent that of subject personal not be to vicarious acts should sufficient, homicide, type ligence employee of of prosecution are standing alone, imputed Appellant herein should be to be to the conviction reversed and the Information dismissed.” ration so is held strict- brief.) Therefore, 9, appellant’s giv- (Page criminally ly, absolutely, automatically responsible employee’s gloss for the personal approval cial to the overuse of acts, strict which are later determined automatic criminal liability in I situations as criminal? also must we have E.g., ask: What at Bar. Per- kins, “Essay: is there Criminal Liability State that holds a Without A Disquieting Fault: private corporation Trend”, Iowa criminally 68-2 liable Law Review (1982/83). personal negligence of employees type of act agents, wholly knowledge, unrelated to we dealing ac- here, negli- tual Again, or constructive? we are gent act, that is later to determined be crimi- dealing “public crime”, with a welfare nal, this Court is actually subscribing, to the as the drugs, distribution of harmful nar- concept that “without fault there is a crimi- cotics, food, etc., general public, to the where nal wrong.” Perkins, supra. see Also injury public interest comes from the Erlinder, Rea, “Mens Process, Due and the thing quite regard act or Supreme Court: Toward a Constitutional circumstances, antecedent motivation or con- Doctrine of Substantive Law”, duct; dealing we are with the situation American Journal Criminal Law private corporation where a is held absolute- (1981). This is wrong, wrong, wrong, oh so ly, strictly, automatically criminally lia- terribly wrong. solely personal negligent ble acts of is there agents. Where opinion, I find that the in creat- Legisla- 7.22(a)(1) indication that fault”, ing the beast “criminal when ture intended it comes to corporate criminal liabil- commission of liable ity, may actually larger created a far act another? As “absent minded” and more uncontrollable beast than it did Oil Standard Judge out in pointed Brown it when created “Almanza the Terrible”. Texas, supra, “The spirit Corporation of statutory the doctrine construction] [of Here, however, unnecessary I find it is power judiciary the federal which denies to unconstitutional, 7.22(a)(1) either declare § forthrightly admonishes create crimes facially applied. plain Given the word- enlarge the should not reach that we 21.15, supra, simply ing of would Art. constituting them enacted crimes criminally negligent hold that the offense incriminating com- anything less than the properly alleged been homicide has not used in contemplated by the words ponents appellant corporation, and there- against the the statute ...” court fore would remand cause Alterna- appeals to first decide this issue. Today, this Court should exercise its con- 7.22(a)(1) however, I tively, vote declare § authority Leg- stitutional and hold that the unconstitutional, facially ap- both islature this instance violated the due process both due plied, because violates process and due course of law clauses of due of law.2 course respective constitutions when it enacted 7.22(a)(1). minimum, At a this Court temptation, should resist outside For the above and foregoing reasons, I “public offenses”, put judi- welfare respectfully dissent to the majority opinion. interesting that it is rather find issue nal, August 1987. Mintz has done an admi- person” whether a is in fact "a job giving history rable the reader a short hearings regarding become an issue in the why corporation “person” protected by ais Judge confirmation Bork. For an inter- *17 constitution, 14th Amendment to the federal Mintz, esting point, “Judge on this article see and, this, reason, highly if no other recom- Trapped Bork: ‘Personhood’? Senate could the mend to reader. him”, tough make it The National Law Jour- APPENDIX A

NO. 19,1979 APRIL

FILED:

I. On Johnny or about November 1978, Hendricks was the agent of the Defendant and while in behalf of the Defendant and scope acting the within employment, Johnny of his the said Hendricks a operated motor vehicle owned Com- by the Defendant and, while so caused the doing, vehicle in which the plainants were to collide with the traveling Defendant's thereby vehicle causi* Complainants the deaths of the the following conduct:~ By parking upon and Defendant's the paved leaving vehicle standing the part highway and main-traveled a outside of a business and residential park possible district when it was to so and leave the vehicle standing. By parking and the Defendant's upon vehicle leaving the standing left- way roadway. hand side a one By to the Defendant's paved remove failing vehicle from the and main- part highway traveled outside a business and residential district duty possible when a to so act in accordance with the law existed and it was to so remove the Defendant's vehicle. By equip the Defendant's failing vehicle with at least three fJares, operation upon lanterns or reflectors use during highway divided time from a after half hour sunset to a half hour before sunrise when duty equip wi,th so the Defendant's vehicle in accordance law existed and By display fusses, lanterns, required failing reflectors flares stopped law when the Defendant's for more vehicle highway. than ten minutes roadway a divided _ . .

II. tr.e agent On Paul about November ^awater scene within and the Defendant behalf acting and while Defendant equip tee . failed Tawater employment, Paul said office of his cuty a th&t Johnny when Hendricks operation vehicle Defendant's apd suc.- existed law the'- with equip in accordance vehicle so in whxcn vehicle caused which negligence constituted failure s the Defendant vehicle with collide Complainants traveling were the thereby Complainants further. deaths causing while Tawater, Paul acting.as about November That scope^of office bis within the Defendant behalf agent paved vehicle Defendant's employment, to remove failed with duty act highway part when main-traveled accordance unat anc vehicle remove possible to so it was existed vehicle caused negligence constituted failure ^s Defer.car.t to collide Complainants traveling in which Complainants. thereby deaths vehicle causing AND DIGNITY OF THE STATE. THE PEACE AGAINST