Untitled Texas Attorney General Opinion ( 1974 )

THE ATTORNEY GENERAI~
,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 is
Corpus Christi, Texas 78401 criminally liable for operating
child-caring or child-placing
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 responsible for the misdemeanor
offense of operating a child-caring or child-placing 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 on corporations and amended the
Code of Criminal’ Procedure to provide the procedural means to bring
corporations 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:
p. 1806
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The Honorable Franklin L. Smith page 2 (H-383)
(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 is
criminally responsible 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 liability
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 on corporations 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:
Any person who. . . (iv) without a license conducts
a child-caring institution, a commercial child-caring
institution, 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 criminal liability plainly appears when the provisions
are considered in context. “Person” is not defined in A,rt. 695~. The
p* 1807
---- .. .__
8,
The Honorable Franklin L. Smith page 3 (H-383)
general definitional provision, applicable to all civil statutea, provides
that “person” includes, a corporation “unless a different meaning is
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 criminal liability to speak of. Therefore, it is
not surprising that, although its .licensing provisions of subsection 2 were
made applicable to “every person, association, institution, 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 corporations 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 in the criminal penalty provision of subsection 12 compels the
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.
p. 1808
,.- --
*
The Honorable Franklin L. Smith page 4 (H-383)
It follows that the State’s remedy against a corporation for operating
a child-care or child-placing 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 provides 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 liable for
misdemeanor offense of operating child-caring
or child-placing institution without a license,
Subdivision (iv), subsection 12, § 8a, Art. 695c,
V. T. C. S.
8% Very truly youre,
OHN L. HILL
&e-P ,’
Attorney General of Texas
DAVID M. KENDALL, Chairman
Opinion Committee
p. 1809