Case Information

*1 GENERAI~ THE ATTORNEY ,OF TE=XAS

ATJ~TXN. TEXAS 78711 August 28, 1974

The Honorable Franklin L. Smith Opinion, No, H- 383 County Attorney

Nueces County Courthouse Re: Whether a corporation Corpus Christi, Texas 78401

institution without license, Subsection 12, §Ea, Art. 695c, V. T. C. S.

Dear Mr. Smith:

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

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

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

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

(2) by law other than this code in which a legislative purpoae to impose criminal responsibility on corpora- tions or associations plainly appears: or (3) by law other than this code for which strict is imposed, unless a legislative purpose not to impose criminal responsibility on corporations or associations plainly appears.

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

The offense in question is contained in subdivision (iv), subsection 12, of 58a. ‘Art. 695c, V. T.C.S., which reads in pertinent part as follows: . . (iv) without a license conducts

Any person who. a child-caring institution, a commercial a child-placing agency, or places children for adoption, is guilty of a misdemeanor . . . .

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

p* 1807

---- . . .__

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

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

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

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

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

,.-

[*]

It follows that the State’s remedy against a corporation a child-care facility without a license is the injunctive relief provided in subsection 11, 5 Ea, Art. 695c, V. T. C. S. See Small v.

State, 360 S. W. 2d 443 (Tex. Civ. App. --Waco 1962, writ ref’d).

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

SUMMARY A corporation is not criminally for misdemeanor offense of operating institution without a license,

Subdivision (iv), subsection 12, § 8a, Art. 695c, Very truly youre, 8% V. T. C. S. &e-P ,’ OHN L. HILL

Attorney General of Texas DAVID M. KENDALL, Chairman

Opinion Committee