737 S.W.2d 805 (1987)

VAUGHAN AND SONS, INC., Appellant,
v.
The STATE of Texas, Appellee.

No. 339-83.

Court of Criminal Appeals of Texas, En Banc.

September 16, 1987.

Robert C. Bennett, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Ray Elvin Speece, Asst. Dist. Atty., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

Appellant, Vaughan and Sons, Inc., a Texas corporation, was convicted by a jury of criminally negligent homicide. V.T.C.A., Penal Code, § 19.07. The information alleged that appellant, acting through two of its agents, caused the death of two individuals in a motor vehicle collision. See V.T. C.A., Penal Code, § 7.22(a)(1). Punishment was assessed by the trial court at a fine of $5,000.00. See V.T.C.A., Penal Code, § 12.51.

On appeal the appellant contended, inter alia, that the "penal code provisions for prosecution of corporations and other artificial legal entities do not extend to any type of criminal homicide, therefore the trial court erred in failing to grant appellant's motion to set aside the information."

The Court of Appeals agreed and reversed the conviction. Vaughan and Sons, Inc. v. State, 649 S.W.2d 677 (Tex. App.—Texarkana 1983). The Court of Appeals wrote in part:

"A superficial reading of the negligent homicide statute construed with the Penal Code definition of `person' [§ 1.07(27)] indicates that a corporation could indeed be found guilty of the crime charged. But the actual question before this court is whether a legislative intent plainly appears which includes corporations within the criminal field of negligent homicide by use of the term `person.'

"After reviewing other statutes, etc., the Court of Appeals concluded:

"Therefore, without a stronger, clearer indication from the legislature that the policy for holding corporations criminally responsible for homicide has changed, we decline to so hold. We should make haste slowly when it is in the direction of holding either an individual or a corporation criminally liable for a crime, especially one so serious as homicide, when it is committed by someone other than the person charged."

*806 Thus, the Court of Appeals ruled that even though the statutes so state, the Legislature could not have intended to include corporations within the class of culpable parties because corporations are unable to formulate "intent" in their "artificial and soulless" form. 649 S.W.2d at 678.

We granted the State's petition for discretionary review to determine the correctness of the holding of the Court of Appeals.^[1]

At common law a corporation could not commit a crime. See generally 10 W. Fletcher, Cyclopedia of Corporations, § 4942, at 620 (1978); Henn Corporations, § 186 (1961); W. LaFave & A. Scott, Criminal Law, § 33 (1972).^[2] "This position was predicated on the rationale that a corporation had no mind and hence could not entertain the appropriate criminal intent required for all common law crimes. Also, the absence of physical body precluded imprisonment, the primary punishment available at common law. Illegal acts of a corporate agent were not imputed to the corporate entity because they were considered ultra vires and therefore without the authority of the corporation." Clark, Corporate Homicide: A New Assault on Corporate Decision Making, Notre Dame Lawyer, Vol. 54, pp. 911-912 (June 1979). See also Wharton's Criminal Law, 14th Ed., Vol. 2, § 111, pp. 80-81.

The rule that a corporation could not be tried for any criminal offense was once widely accepted, not just in Texas, but throughout the nation. Today, however, the general rule is that a corporation may be held liable for criminal acts performed by its agents acting on its behalf. See generally 18B Amer.Jur.2d, Corporations, §§ 2136 and 2137 (1985); 19 C.J.S., Corporations, § 1358, p. 1073.^[3]

Prior to the 1974 Penal Code and the conforming amendments thereto corporate criminal responsibility was recognized only to a very limited extent in Texas. Searcy and Patterson, Practice Commentary, V.T.C.A., Penal Code, § 7.22. Texas was then apparently the only state that did not provide for general criminal liability. See Hamilton, Corporate Criminal Liability in Texas, 47 Texas Law Rev. 60 (1968); Hamilton, Texas Business Organizations, § 239 (1973); Lebowitz, Recent Development in Texas Corporation Law—Part I, 28 Southwestern Law Journal 641, 662, n. 148 (1974). See also Hildebrand, Corporate Liability for Torts and Crime, 13 Texas Law Rev. 253, 275 (1935); Keeton & Searcy, A New Penal Code for Texas, 33 Tex.B.Journal 980, 985 (1970). "While there were a few statutes that imposed criminal liability in limited situations, mainly for pollution or willful violations of economic regulatory legislation,^[4] even these were virtually negated by the absence of a procedure under which Texas corporations *807 could be prosecuted." Lebowitz, supra, at p. 662. See also Practice Commentary to V.T.C.A., Penal Code, § 7.22, supra; Thompson v. Stauffer Chemical Co., 348 S.W.2d 274 (Tex.Civ.App.-Waco 1961) writ ref'd n.r.e.

Three earlier criminal cases left considerable doubt whether a corporation could be successfully prosecuted as a possible defendant. Guild v. State, 79 Tex.Cr.R. 603, 187 S.W. 215 (1916); Judge Lynch International Book and Publishing Co. v. State, 208 S.W. 526 (Tex.Cr.App.1919); Overt v. State, 260 S.W. 856, 859 (Tex.Cr.App.1924). Guild discussed the impossibility of punishing a corporation with imprisonment,^[5]Judge Lynch International Book and Publishing Co. discussed the failure of the term "person" as used in the statute under which prosecution was brought to include corporations,^[6] and Overt discussed the same matter as well as the imputing of intent, and the lack of procedure to bring corporations into court.^[7]

Thompson v. Stauffer Chemical Co., supra [348 S.W.2d 274 (Tex.Civ.App.-Waco 1961, writ ref'd n.r.e.], involved an appeal from a district court judgment holding void a judgment of a Justice of the Peace Court, and enjoining the Justice of the Peace from issuing execution thereon. A corporation was charged by a criminal complaint with permitting fumes and gases detrimental to health to escape its premises in violation of Article 695, V.A.P.C. (1925), which provided that the misdemeanor offense could be punishable by a fine not to exceed $100.00 upon conviction. The Justice of the Peace issued a civil citation and attached a copy of the criminal complaint thereto. It was executed upon the vice president and general manager of the corporation. When the corporation did not appear for trial, the State made out a prima facie case, and the Justice of the Peace entered a judgment of conviction reciting the corporation "appeared in absentia" and assessed a $100.00 fine. The corporation sought relief in district court and obtained a favorable ruling *808 and an injunction. An appeal followed. The Court of Civil Appeals did not rest its judgment upon the ground that a corporation was not included within the pronoun "whoever" in Article 695, supra, but rested its decision on the following basis:

"It is our view that the matters of which appellant complains are matters which the Legislature will have to afford relief for, if any relief be afforded. There is no procedure in the Code of Criminal Procedure whereby a corporation as such, can be prosecuted for misdemeanor in Texas, and we cannot give our approval to the method employed. The Corporation was never arrested; nor entered an appearance; was tried and convicted `in absentia;' and we think that such Justice of Peace Court judgment of conviction was void." (Emphasis supplied.)

The Texas Supreme Court refused the writ of error, "no reversible error." Thus there was no practical procedure for bringing a corporation into court for criminal prosecution.

Former Penal Code Article 22 did define "person," but it was held that the word used therein extended only to a corporation as the "person" or "party" who, or whose property was affected by the crime. Cochrain v. State, 248 S.W. 43 (Tex.Cr.App. 1922). Further, most of the Penal Code statutes, in defining offenses, used the term "whoever" or "person" without any indication that corporations were to be included therein.

It is not difficult to see why it could be said that prior to the 1974 Penal Code "a corporation or a partnership could not be indicted or tried under the criminal laws of Texas." Tex.Jur.3d, Vol. 18, Criminal Law, § 161, p. 232.^[8]

In 1968 Professor Robert W. Hamilton's treatise, Corporate Criminal Liability in Texas, 47 Texas Law Review 60, was published. In it he reviewed the history of corporate criminal liability in Texas, or rather the lack of it and the steps necessary for criminal prosecution of corporations. In his advocacy of corporate criminal liability he offered in his treatise at pp. 77-85 proposed amendments to the Texas Penal Code which were made available to the State Bar Committee on the Revision of the Penal Code on which he served as a reporter. To overcome legal obstacles of the past Professor Hamilton advocated a definition of "person" used in various Penal Code statutes be broadened to embrace a corporation, that there be a corporate liability statute, procedural provisions for bringing or summoning corporations into court for criminal prosecution, and ample statutory authority for the imposition of fines upon conviction rather than the impossible imprisonment. It appears that said State Bar Committee and subsequently the Legislature addressed some of Professor Hamilton's concerns. See Anderson, Corporate Criminal Liability for Specific Intent Crimes and Offense of Criminal Negligence—The Direction of Texas Law, St. Mary's Law Journal, Vol. 15, p. 231 (1984).

With that background we turn to the 1974 Penal Code.

V.T.C.A., Penal Code, § 1.07(a), provides:

"(a) In this Code:

* * * * * *

"(17) `Individual' means a human being who has been born and is alive.

* * * * * *

"(27) `Person' means an individual, corporation, or association." (Emphasis supplied.)

And added to § 1.07(a) in 1979 was (9.1) which provides:

"(9.1) `Corporation' includes nonprofit corporation, professional association created pursuant to statute, and joint stock companies."

V.T.C.A., Penal Code, § 7.22 (Criminal Responsibility of Corporation or Association), provides:

"(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:

"(1) in this code where corporations and associations are made subject thereto;

"(2) by law other than this code in which a legislative purpose to impose criminal responsibility on corporations or associations plainly appears; or

*809 "(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.

"(b) A corporation or association is criminally responsible for a felony offense only if its commission was authorized, requested, commanded, performed, or recklessly tolerated by:

"(1) a majority of the governing board acting in behalf of the corporation or association; or

"(2) a high managerial agent acting in behalf of the corporation or association and within the scope of his office or employment."^[9]

V.T.C.A., Penal Code, § 12.51 (Authorized Punishments for Corporations and Associations), enacted as a part of the 1974 Penal Code, was amended in 1977. Such statute authorized the imposition of fines upon a corporation if convicted of a criminal offense. No imprisonment was provided.^[10]

And Chapter 17A of the Code of Criminal Procedure was added in 1973^[11] to provide the procedural rules for bringing corporations into court with regard to its criminal responsibility. Article 17A.01, V.A.C.C.P., provides in part:

"(a) This Chapter sets out some of the procedural rules applicable to the criminal responsibility of corporations and associations. Where not in conflict with this chapter, the other chapters of this code apply to corporations and associations.

"(b) In this code [Code of Criminal Procedure], unless the context requires a different definition

"(1) * * *

"(4) `Person,' `he' and `him' include corporation and association." (Emphasis supplied.)

Title 5 of the Texas Penal Code (Offenses Against Persons) includes Chapter 19 (Criminal Homicide).

V.T.C.A., Penal Code, § 19.01 (Types of Criminal Homicide), provides:

"(a) A person commits criminal homicide if he intentionally, knowingly, recklessly, or with criminal negligence causes the death of an individual.

"(b) Criminal homicide is murder, capital murder, voluntary manslaughter, involuntary manslaughter, or criminally negligent homicide." (Emphasis supplied.)

V.T.C.A., Penal Code, § 19.07 (Criminal Negligence Homicide), provides:

"(a) A person commits an offense if he causes the death of an individual by criminal negligence.

*810 "(b) An offense under this section is a Class A misdemeanor."^[12] (Emphasis supplied.)

V.T.C.A., Government Code, § 311.005 (Code Construction Act—General Definitions), provides in part:

"The following definitions apply unless the statute or content in which the word or phrase is used requires a different definition.

"(1) * * *

"(2) `Person' includes corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association and any other legal entity...."

(Emphasis supplied.)

V.T.C.A., Government Code, § 311.011(b), provides:

"(b) Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise shall be construed accordingly." (Emphasis supplied.)

V.T.C.A., Penal Code, § 1.05 (Construction of Code), provides:

"(a) The rule that a penal statute is to be strictly construed does not apply to this code. The provisions of this code shall be construed according to the fair import of their terms, to promote justice and effect the objectives of the code.^[13]

"(b) Unless a different construction is required by the context, Sections 311.011, 311.012, 311.014, 311.015 and 311.021 through 311.032 of the Code Construction Act (Chapter 311, Government Code) apply to the construction of this code."^[14] (Emphasis supplied.)

The Legislature, recognizing that for years Texas was the only jurisdiction in which corporations bore no general criminal responsibility, and aware of the previous roadblocks in case law to the prosecution of corporations for criminal offenses, enacted statutes to remedy the situation. As earlier noted, the Legislature defined "person" in both the Penal Code [V.T.C.A., Penal Code, § 1.07(a)(27), and the Code of Criminal Procedure (Article 17A.01(b), V.A. C.C.P.) ] so as to expressly embrace corporations. To leave no doubt the Legislature also similarly defined "person" in the Code Construction Act (Government Code, § 311.005). In the accusatory and definitional part of most offenses found in the Penal Code the term "person" (as defined elsewhere) is used without qualification. Observe that this was done in V.T.C.A., Penal Code, § 19.01, defining criminal homicide, and in the statute in question in this case, V.T.C.A., Penal Code, § 19.07 (Criminal Negligent Homicide).^[15] And the Legislature was not content to rest upon the definitions of "person" to impose corporate criminal responsibility. It also enacted § 7.22 of the Penal Code as general statute to indicate its intention that corporations were to be rendered criminally responsible for the conduct of its agents acting within the scope of its employment in committing offenses. For fear there would *811 be no procedure for summoning corporations into court Chapter 17A was added to the Code of Criminal Procedure. And to overcome the fact that corporations cannot be placed in jail or imprisoned, the Legislature provided a schedule of fines in V.T. C.A., Penal Code, § 12.51 in lieu of imprisonment where corporations were convicted.

The intention of the Legislature could hardly be made clearer given the history, the reform intended and the literal meaning of the statutes involved. Taken collectively, the foregoing statutes furnish the basis for overcoming the obstacles which in the past have prevented the criminal prosecution of corporations.

It is the State's contention that a corporation is a "person" under general definitional statute of the Penal Code, § 1.07(a)(27), see also Art. 17A.01(a)(4), V.A.C.C.P., and Government Code, § 311.005, and since the crime of criminally negligent homicide can be committed by a "person" (V.T.C.A., Penal Code, § 19.07), it follows that the crime can be committed by a corporation. We agree. People v. Ebasco Services, Inc., 77 Misc.2d 784, 354 N.Y.S.2d 807 (N.Y.1974), is instructive. There the court wrote at p. 811: "Since no definition of `person' as applied to the actual committing of the homicide has been included by the Legislature in the homicide article, the court must look to the broader definition of `person' contained in the overall definitional article of the Penal Law." Looking to the definitional article (§ 10.0017) the Court found that "person" included "a public or private corporation." The conviction was upheld. See also Commonwealth v. McIlwain School Bus Lines, Inc., 283 Pa.Super. 1, 423 A.2d 413 (1980); State v. Adjustment Department Credit Bureau, Inc., 94 Idaho 156, 483 P.2d 687 (1971).

In State ex rel. Vance v. Hatten, 600 S.W.2d 828 (Tex.Cr.App.1980), we said:

"Arguments are made by respondent that the legislature did not intend for the statute to be given its literal meaning. However, we must agree with the maxim stated in Brazos River Authority v. City of Graham, 163 Tex. 167, 354 S.W.2d 99 (1961) that:

"`If Parliament does not mean what it says, it must say so.'

If this Court were to reach the conclusion by speculation that the legislature did not intend what it clearly and unambiguously stated, we would still be without authority to change the specific terms of the statute, where such language is plain and unequivocal."

The Court of Appeals reasoned that Chapter 19 of the Texas Penal Code (1974) groups all degrees of homicide in one unit; that "Sec. 19.01(a) implies that whoever is capable of committing criminal homicide must also be capable of intent, knowledge, and recklessness ... not just criminal negligence" that it is "readily apparent that a corporation is unfit to intentionally or knowingly cause the death of an individual...." The Court thus, would not, without a stronger, clearer indication from the Legislature, hold that corporations were criminally responsible for homicide. We do not agree.

It is obvious that the Court of Appeals' language in its opinion that "[W]e should make haste slowly...." came from the language in Commonwealth v. Punxsutawney, 24 Pa.C.C. 25, 48 Pits.Leg.J. 42 (1900)^[16] (refusing to hold a street railway company criminally liable for the crime of assault in ejecting a passenger). And the conclusion of our Court of Appeals that there was insufficient evidence of the legislative intent to impose corporate criminal liability under § 19.07 of the Texas Penal Code was apparently influenced by the same holding in People v. Rochester Railway & Light Co., 195 N.Y. 102, 107, 88 N.E. 22, 24 (1909). Since the turn of the century when these cases were decided much water has passed under the bridge, and many new bridges have been built. In fact the whole surrounding landscape has changed. Punxsutawney no longer has any precedential value, see Commonwealth v. McIlwain, supra, and even Rochester Railway itself indicated that legislative action could change the result there reached.^[17]

*812 The Court of Appeals stated that those jurisdictions which have addressed the issue of corporate criminal liability "... are divided as to criminal responsibility for personal crimes such as homicide or rape, though the majority still agrees that a corporation cannot commit a crime requiring specific intent." No authority is cited.

In 18B Amer.Jur.2d, § 2137, pp. 959-960, it is stated:

"It is now generally accepted that a corporation may be indicted for a crime to which a specific intent is essential, and that the intent is essential, and that the intent of its employees or agents may be imputed to the corporations." (Emphasis supplied.)

Numerous cases are cited. See also Corporation's Criminal Liability for Homicide, 45 A.L.R. 4th, § 4(a), 1021, 1030.

In 19 C.J.S., Corporations, § 1363, pp. 1075-1076, it was pointed out that:

"A corporation may be criminally liable for crimes which involve a specific element of intent as well for those which do not, and, although some crimes require such a personal, malicious intent that a corporation is considered incapable of committing them, nevertheless under the proper circumstances the criminal intent of its agent may be imputed to it so as to render it liable, the requisites of such imputation being essentially the same as those required to impute malice to corporations in civil actions."

See also and cf. Corporation's Criminal Liability for Homicide, 45 A.L.R., 4th, 1021.

After recognizing that some courts have held that a corporation cannot be guilty of homicide in absence of a specific statutory provision, it is stated in 19 C.J.S., Corporations, § 1364, p. 1077:

"However it has been said that a definition of certain forms of manslaughter may be formulated which would be applicable to a corporation and make it liable for various acts of misfeasance and nonfeasance when resulting in homicide. Thus, a corporation has been held subject to prosecution for involuntary manslaughter where there was nothing in the definition of the crime or the punishment provided which would make it impossible to hold a corporation liable." See State v. Lehigh Valley R. Co., 103 A. 685, 90 N.J.Law 372 (1917), and Granite Construction Co. v. Superior Court of Fresno County, 197 Cal.Rptr. 3, 149 C.A.3d 465 (Court of Appeals, 5th Dist. 1983).

An examination of decisional law from other states indicates that where there are corporate criminal responsibility statutes similar to our own Texas statutes, it appears to have been consistently held that a corporation is liable for specific intent crimes and offenses of criminal negligence.

In Commonwealth of Kentucky v. Fortner LP Gas Co., Inc., 610 S.W.2d 941 (Kentucky Court of Appeals, 1980) (Discr. Review Denied), the indictment involved manslaughter in the second degree. A corporate truck with defective brakes had struck two children, killing one, while they were crossing the highway after alighting from a school bus. The circuit court sustained the motion to dismiss the indictment relying upon Commonwealth v. Illinois Central Railway Co., 152 Ky. 320, 153 S.W. 459 (1913). The Illinois Central case had been a definitive case on corporate responsibility for criminal conduct for many years. Basically, the holding of that case was that "corporations cannot be indicted for offenses which derive their criminality from evil intention or which consist in a violation of those social duties which appertain to man and subjects." The holding was predicated on two things. One, was that in 1913 there was no separate punishment for corporations provided by Kentucky statute, and two, the court was not willing, in a criminal prosecution, to extend the definition of the word "person" in § 475 of the Kentucky statutes to include corporations. On appeal of the ruling dismissing the indictment the Kentucky Court of Appeals decided that Illinois Central must be considered in light of its date, statutory changes and its total holding. The Kentucky Court of Appeals observed that there was now a statute imposing criminal liability upon a corporation, second there was a general statutory definition of "person" which included corporations, and a punishment statute which imposed fines upon a corporation for violation of offenses. The court concluded that these statutes were envisioned in Illinois Central which might support an indictment. The order to dismiss the indictment was reversed. Our Texas statutes are almost identical to the Kentucky statutes.

In State v. Adjustment Department Credit Bureau, Inc., 94 Idaho 156, 483 P.2d 687 (1971), the corporation was convicted of the offense of extortion, a special *813 intent crime. On appeal it contended that it was not a "person" within the meaning of the criminal statutes and could not be found guilty of a crime unless specifically provided for in the statute involved. The Idaho Supreme Court noted that another state statute defined terms used in the various statutes including the term "person" which embraced a corporation as well as a natural person. The Court found the definitional statute to be controlling and that corporate criminal liability for the offense of extortion could be imposed. As a a result of an error in the jury charge, however, the cause was reversed and remanded.

In Granite Construction Co. v. Superior Court of Fresno County, 149 Cal. App.3d 465, 197 Cal.Rptr. 3, 45 A.L.R., 4th, 1011 (Court of Appeal, Fifth Dist.1983), the Court denied the corporation's petition for peremptory writ of mandate challenging its indictment for manslaughter following the accidental death of seven workers at a power plant under construction by the corporation. The California Appellate Court held that corporations may be prosecuted for manslaughter since provisions of the state's penal code defined "person" to include a corporation as well as a natural person, that the manslaughter provision of the penal code did not limit its scope to act by natural persons, and the code provided appropriate punishment for corporate crimes. The corporation argued that the Legislature had not intended to make corporations responsible for crimes when the penal code was enacted. In rejecting this contention the Court observed that traditional notions of fair play and substantial justice are not offended by applying the clear meaning of statutory terms, for when a statute's language is clear, its plain meaning should be followed.

Commonwealth v. McIlwain School Bus Lines, Inc., 423 A.2d 413 (Pa.Super.Ct. 1980), held that a private corporation may be held criminally liable for homicide by vehicle. In resolving the statutory construction problem presented the Court held that the Pennsylvania statute defining "person" included a corporation, that there was a general corporation liability statute, and while the homicide by vehicle statute did not itself specifically include a corporation it did use the term "any person," and that such was sufficient to subject the corporation to criminal liability for homicide by vehicle. See also People v. Ebasco Services, Inc., supra.

There are a number of additional cases from other states which discuss statutes that are similar to Texas statutes and which assign corporate criminal liability for specific intent crimes and offenses of criminal negligence. See, e.g., Commonwealth v. Beneficial Finance Co., 275 N.E.2d 33 (1971); People v. Lee Myles Corp., 53 A.D.2d 873, 385 N.Y.S.2d 339 (1976); State v. Oregon City Elks Lodge No. 1189, BPO Elks, 17 Or.App. 124, 520 P.2d 900 (1974); Commonwealth v. J.P. Mascaro & Sons, 266 Pa.Super. 8, 402 A.2d 1050 (1979). See also Anderson, Corporate Criminal Liability for Specific Intent Crimes and Offenses of Criminal Negligence—The Direction of Texas Law. 15 St. Mary's Law Journal 231 (1984). See also United States v. Van Schaick, 134 F. 592 (C.C.N.Y.1904); People v. Warner-Lambert Co., 51 N.Y.2d 295, 434 N.Y.S.2d 159, 414 N.E.2d 660 (1980), cert. den. 450 U.S. 1031, 101 S.Ct. 1742, 68 L.Ed.2d 227.

And in Granite Construction Co. v. Superior Court, supra, which held that a corporation may be prosecuted for manslaughter, the Court found that corporations can form intent, be reckless, and commit acts through its agent. The Court noted that California had well established methods to impute criminal responsibility to corporations, so that a codification of rules for imputing intent, criminal negligence, or recklessness was unnecessary. The Court reasoned that if corporations are liable for crimes of specific intent, they should be equally liable for crimes of criminal negligence or recklessness.

In Brickley, Corporate Criminal Liability, Vol. I (Evolution of Liability), § 209, p. 31, it was written:

"As courts gave express recognition to the capacity of corporations to commit crimes requiring general intent, open hostility to retention of a `fanciful theory in process of abandonment' surfaced and brought to the forefront consideration of the question whether there remained a sound reason for drawing a distinction between imputing general and specific intent to corporations. After all, corporations have been held vicariously liable for intentional torts including assault and battery, libel and malicious prosecution. Because it would be no more difficult theoretically to impute specific intent for a crime than a tort, the only point remaining in dispute was the question whether the corporation lacked capacity to form evil intention. The suggestion *814 that it did was met with little patience. `The same law that creates the corporation may create the crime, and to assert that the Legislature cannot punish its own creature because it cannot make a creature capable of violating the law does not ... bear discussion.' The proposition simply was untenable.

"Beginning in the late nineteenth and continuing into the early twentieth century, courts wrestling with this issue began breaking down the last barrier to imposing on corporations the full range of liabilities to which natural persons were subject. During this period corporations were found to be properly subject to criminal prosecution for such divers offenses as ... even manslaughter."^[18] (Footnotes omitted.)

See also Brickley, Corporate Criminal Accountability: A Brief History and an Observation, 60 Washington University Law Quarterly, pp. 393-423.

Given the history of corporate criminal liability in Texas prior to the 1974 Penal Code, the various provisions of the 1974 Penal Code and other statutes enacted to bring about a change, the clear statutory language, and the analogous case authority, we reject the reasoning of the Court of Appeals and conclude that a corporation may be criminally prosecuted for the misdemeanor code offense of criminally negligent homicide under V.T.C.A., Penal Code, § 19.07, for corporations have been made subject thereto. See V.T.C.A., Penal Code, § 7.22(a)(1).^[19]

The Court of Appeals judgment is reversed and the cause remanded to that court for consideration of appellant's points of error.

CLINTON, Judge, concurring.

One troubling aspect of dissenting opinion by Judge Teague is its utter failure to articulate precisely wherein the Legislature ran afoul of due process in V.T.C.A. Penal Code, Chapter 7, Subchapter B. As best his premises may be understood, they are Subchapter B was not enacted "under its police power" and § 7.22(a)(1) imposes upon a corporation "strict, automatic criminal liability" for negligent acts of its employees and agents. See at pp. 808, 809, 810, 811.

Judge Teague errs in perceiving "public welfare offenses" are derived from police power whereas an offense to which a corporation is made subject under the penal code or some other law, and criminally responsible through § 7.22(a)(1), is not. Call them what one may, the latter is an exercise of police power as much as the former.

Of course it is hornbook law, supported by a wealth of authority, that "police power" is an attribute of sovereignty by which its lawmaking body may enact laws to protect peace, safety, health, happiness and *815 general welfare of the people. 12 Tex. Jur.3d 610-611, "Constitutional Law, F. Police Power," § 80. Manifestly, in its broadest sense police power is exercised in taking measures to prevent and suppress crime and to preserve order, State v. City of Dallas, 319 S.W.2d 767, 774 (Tex.Civ. App.—Dallas 1958), affirmed 160 Tex. 348, 331 S.W.2d 737 (1958), such as enacting a penal code and establishing and maintaining a criminal justice system. In this, the State acts in selfdefense to preserve its existence by protecting its citizens in life, health and happiness. Ex parte Flake, 67 Tex.Cr.R. 216, 149 S.W. 146, 154 (1912) (Opinion on Rehearing).

Just as erroneously Judge Teague finds § 7.22(a)(1), and presumably all of Subchapter B, supra, is unreasonable, arbitrary and capricious in holding a corporation strictly liable for criminally negligent acts of its employees and agents because it does not require "proof that the appellant corporation itself did something criminally wrongful." at 820.

The theory of strict liability is not unprecedented, however. See American Plant Food Corp. v. State, 587 S.W.2d 679 (Tex.Cr.App.1979), a conviction for the offense of water pollution under Water Code prohibition that "[n]o person may discharge, or cause or permit the discharge of, any waste into or adjacent to any water in the state which will cause water pollution unless...." Id., at 681, n. 1. From legislative history the Court found the Legislature intent was "to create a strict liability standard in which no proof of scienter is necessary." Id., at 685. Also see American Plant Food Corporation v. Sate, 508 S.W.2d 598 (Tex.Cr.App.1974). In both instances the water pollution could only have occurred through acts or omissions of individuals, employees and agents of the corporation, rather than the "corporation, itself."

TEAGUE, Judge, dissenting.

Please, dear reader, believe me: Contrary to what you might surmise from this Court's majority opinion, the law that addresses corporate criminal liability, as reflected by the many law review articles and court decisions on the subject, is one big mess. I must, however, sadly report: The majority opinion actually does absolutely nothing to clear the air in this area of the law. In fact, I find that the majority opinion will actually add to the confusion that presently exists in this area of our law.

Without any limitation whatsoever, this Court granted the State's petition for discretionary review in order to review the decision of the Texarkana Court of Appeals in Vaughan and Sons, Inc. v. State, 649 S.W.2d 677 (Tex.App.-6th 1983), which declared that a private corporation in Texas could not be prosecuted for the offense of criminally negligent homicide that had been previously committed by one or more of its employees or agents. Contrary to the court of appeals' decision, the majority opinion of this Court holds generally that a private corporation doing business in Texas can be held strictly and automatically criminally liable for the personal negligent acts of its employees or agents, provided that at a later date the trier of fact finds that the employees' or agents' personal negligent acts were actually criminal. Given this Court's unlimited grant, what the court of appeals stated and held, and what the State argues in its petition for discretionary review, I respectfully dissent to the majority opinion's failure to "put some meat on the bones of that old corporation dog" that it has now discovered exists. I also dissent for other reasons that I will give.

Although I dissent, I nevertheless acknowledge that the law that addresses the civil and criminal liability of a private corporation in Texas and elsewhere has come a long way since the year 1250 when Pope Innocent IV decreed that because a corporation, although apparently then a "person", did not have a soul that could be damned, it could not be excommunicated from the Church. See Brickley, Corporate Criminal Liability, at page 7 (1986 edition).

As to what the boundaries of civil corporate liability might be in the future, this Court must, of course, defer to the Supreme Court of Texas. However, see El Chico Corporation v. Poole et al., 732 S.W.2d 306 (Tex.1987). Given what the majority opinion states, it should be obvious to almost anyone that this Court will or should in the future subscribe to and apply where possible the principles of law that the Supreme Court announces in this area of the law.

Also, after the members of the Legislature have thoroughly digested the majority opinion, I predict that we will soon see more strict and automatic criminal liability statutes enacted. For example, the next *816 session of the Legislature should be able to enact a strict and automatic criminalliability statute making any natural parent or legal guardian or custodian of a young child strictly and automatically criminally liable for the personal negligent wrongs of the child, provided that a trier of fact finds that the child's negligent acts are criminal.

It is actually not the reasoning that the majority opinion uses to reach its conclusion, that a private corporation doing business in Texas falls within the statutory te