Brown v. State , 1963 Tex. Crim. App. LEXIS 834 ( 1963 )

McDonald, judge.

The appellant was convicted in the Corporation Court of the City of Houston for the offense of unlawfully possessing and having in his possession with intent to sell a food product, to-wit: fresh meats to which had been added benzoate, said benzoate being a substance not approved by the Director of Public Health of the City of Houston, Texas. Upon appeal in a trial de novo before a jury in County Criminal Court at Law No. 1, appellant was found guilty and his punishment was assessed at a fine of $200.00.

The conviction was for a violation of Ordinance No. 2922 of the City of Houston.

The caption of this ordinance was introduced in evidence. It gives notice that a penalty for a violation thereof is provided, but that section of the ordinance which prescribes the penalty was not introduced. The State relied upon a general penalty provision, as evidenced by an excerpt from the 1942 Code of the City of Houston, Texas. This provision sets a maximum fine of $200.00, where no other penalty is specified.

We hold that before a general penalty provision of an ordinance may be utilized for a conviction, it is incumbent upon the State to show that a specific penalty is not prescribed.

This essential proof is lacking. Absent a showing of the lack of a specific penalty provision, this conviction cannot be sustained. Jones v. State, Tex.Cr.App., 354 S.W.2d 160.

The judgment is reversed, and the cause is remanded.