This Month in Case Law History: Sabine and Individual Liability for Officers of Corporations

31 years ago this month, a the Austin Court of Appeals reached a decision in a case cited in Chapter 15 of the TMCEC Bench Book (Corporations and Associations). Sabine Consol., Inc. v. State, 816 S.W.2d 784 (Tex. App.—Austin 1991, pet. ref’d) was decided on August 28, 1991. 

In September 1985, two construction workers employed by Sabine Consolidated, Inc. (Sabine), a construction company, were killed when a trench they were working in collapsed. The State filed complaints against Sabine and its president, alleging criminally negligent homicide, on a theory that the accused failed to adequately shore and slope the trench, which caused the workers’ deaths.  

Sabine’s president argued that Tex. Pen. Code § 7.23 was unconstitutionally vague as to liability of officers of corporations. § 7.23(b) states that an agent having “primary responsibility” for the discharge of a duty to act imposed by law on a corporation or association is criminally responsible for omission to discharge the duty to the same extent as if the duty were imposed by law directly on him. Sabine’s president argued that the term “primary responsibility” is vague and indefinite. The Austin Court of Appeals disagreed, holding that the term was not unconstitutionally vague or indefinite, and that the term was given its ordinary usage. The Court upheld the law imposing individual criminal liability for acts committed on behalf of a corporation or association.  

Criminal law practitioners in Texas should be familiar with § 7.23. So should anyone that works in municipal court: corporations may be charged for violations of class C misdemeanors. An agent who has primary responsibility for the discharge of a duty, such as one imposed by a city ordinance may be charged in addition to any charge against the corporation. The decision to charge the agent, the corporation, or both, is left to the prosecutor, who must seek not to convict but to see that justice is done. 

Published by markgoodner

General Counsel & Director of Education, TMCEC

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