Untitled Texas Attorney General Opinion ( 1952 )

Hon. John R. Lee Opinion No. V-1428
County Attorney
Winkler County Ret Se,veral questions on H. .B.
Kermit, Texas 40.3, 52nd Legislature, the
*Hot Check Law.”
Dear Mr. Lee:
Your request for an opinion relates to House Bill 403,
Acts 52nd Leg., R.S. 1951, ch, 305, p. 496. commonIy referred
to as the “Hot Check Law.” This recent statute amends Article
567b, Vernon’s Penal Code, Of primary importance is your in-
quiry directed to the validity of the ‘prima facie evidence of in-
tent to defraud” provision contained in Section 2 of House Bill
403. Our consideration of this question entails a discussion of
two distinct phases of this matter, namely, (1) the constitutionali-
ty of the “prima facie evidence. provision, and (2) the construe’
tion, operation, and effect of this provision in view of Colin v,
State, 145 Tex. Grim. 371, 168 S.W.Zd 500 (1943), in reqto a
worthless check given in payment of a pre-existing obligation.
Your remaining two questions concern the necessity of the ten
days’ notice of nonpayment of a worthless check to the drawer,
as provided in Section 2 of House Bill 403, as a prerequisite to
a prosecution under the act.
The pertinent provisions of House Bill 403 are as fol-
lows:
“Section 1. It shall be unlawful for any person
to procure any article or ,thing of value, or to secure
possession of any personal property to which a ,lien
has attached, -or to make payment of any pre-existing
debt or other obligation of whatsoever form or nature,
or for any other purpose to make or draw or utter or
deliver, with intent to defraud, any check, draft or
order, for the payment of money, upon any bank, per-
son, firm or corporation, knowing at the time of such
making, drawing, uttering or delivering, that the maker,
Hon. John R. Lee, page 2 (V-1428) ’
or drawer, has not sufficient funds in, or on deposit
with, such bank, person, firm or corporation, for the
payment of such check, draft or order, in full, and
all other checks, drafts or orders upon such funds
then outstanding.
“Sec. 2. As against the maker, or drawer there-
of, the making, drawing, uttering or delivering of a
check, draft or order, payment of which is refused by
the drawee, ,shall be prima-facie evidence of intent
to defraud and of knowledge of insufficient funds in,
or on deposit with, such bank, person, firm or cor-
poration, provided such maker or drawer shall not
have paid the holder thereof the amount due thereon,
within ten (10) days after receiving notice that such
check, draft or order has not been paid by the ‘drawee.
“Sec. 3. The word ‘notice“ as used herein shall
be construed to include either notice given to the person
entitled thereto in person or notice given to such person
in writing. Such notice in writing shall be conclusively
presumed to have been given when deposited, as regis-
tered matter, in the United States mail, addressed to
such person,at his address as it appears on such check,
draft or order.”
The comparable section of the repealed Article 567b. V.
P.C., prior to the 1951 amendment, provided as follows:
“Sec. 2. It shall be unlawful for any person, with
intent to defraud, to pay for any goods, service, labor,
or other thing of value, theretofore received, by giving
or drawing any check, draft, or order upon any bank,
person, firm, or corporation, if such person does not,
at the time said check, draft, or order is so given or
drawn, have sufficient funds with such bank, person,
firm, or corporation to pay such check, draft, or order,
and all other checks, drafts, or orders upon said funds
outstanding at the time such check, draft, or order was
so given or drawn; provided that such check, draft, or
order is not paid upon presentation, the nonpayment of
same shall be prima facie evidence that such person
giving or drawing such check, draft, or order had
.
Hon. John R, Lee, page 3 (V-1428)
insufficient funds with the drawee to pay same at
the time the said check, draft, or ord,er was given
or drawn and that said person gave such check, draft,
or order with intent to defraud; and provided further
that proof of the deposit of said check, draft, or order
with a bank for collection in the ordinary channels of
trade and the return of said check, draft, or order un-
paid to the person making such deposit shall be prima
facie evidence of presentation to, and nonpayment of
said check, draft, or order by, the bank, person, firm,
or corporation upon whom it was drawn; and provided
further that where such check, draft, or order has been
protested, the notice of protest thereof shall be ad-
missible as proof of presentation and nonpayment
and shall be prima facie evidence that said check, draft,
or order was presented to the bank, person, firm or
corporation upon which it was drawn and was not paid,”
It is to be noted that the new *Hot Check Law,” in amend-
ing Article 567b, V.P.C., embodies substantial changes not ~only in
the import and substance of the offense but also in the rules of evi-
dence available in the prosecution of the offense. This is especial-
ly true in Section 2 of House Bill 403, which s.ets forth the prima
facie evidence rule concerning the necessary intent to defraud. It
is upon this provision that your questions are principally centered,
Under the repealed enactment, there were three prima facie evi-
dence rules, the first relating to the presumption1 of insufficiency
of funds and intent to defraud upon proof of nonpayment, the second
to the presumption of presentation and nonpayment upon proof of
deposit, and the third to the presumption of presentation and non-
payment upon proof of notice of protest. The new hot check law
omits the second and third rules altogether; and it modifies the
first rule by raising a statutory presumption..of intent to defraud
and knowledge of insufficiency of funds upon proof of nonpayment,
but adds thereto, as a condition precedent to its operation, the
l/ Throughout this opinion the term “presumption” is used to
meana permissive presumption amounting to sufficient evidence to
create a prima~facie case. See Floeck v. State, 34 Tex. Grim, 314,
30 S.W. 794 (1895); McCormick, Charges on Presumptions and Bur-
den of Proof, 5 N.C.L. Rev. 291, 295 (1927).
Hon. John R. Lee, page 4 (V-1428)
requirement that the maker or drawer must be notified of such
nonpayment and must be granted ten days in which to make the
worthless check good.
After a comparative study of the two statutes and an ex-
amination of the pertinent authorities in this State, it is our opin-
ion that the “rule of prima facie evidence” contained in Section 2
of House Bill 403 is valid and constitutional.
It is well recognized in Texas and throughout the United
States that the legislature may within certain limits establish or
change the rules of evidence. 2 Wharton, Criminal Evidence (10th
Ed. 1912), Sets. 715, 715A. Under this legislative power our Tex-
as courts have held that proof of certain acts of one, accused of
crime may be mad,e prima facie evidence of some incriminating
fact against him. Floeck v. State, 34 Tex. Grim. 314, 30 S.W. 794
(1895); O’Brien v. State, 90 Tex. Grim. 276, 234 S.W. 668 (1’921);
Newton Y. State, 98 Tex. Crim. 582, 267 S.W. 272 (1924); Mayes
v. State, 145 Tex. Grim. 295, 167 S.W.2d 745 (1942).
In Floeck v. State, supra, the Court of Criminal Appeals
held that it was within the power of the Legislature to make a li-
cense procured from the federal authorities to pursue the occupa-
tion of a liquor dealer prima facie evidence that the party procur-
ing it pursued such occupation for the time specified in the license,
In announcing this rule, the Court in its opinion stated:
” ‘While the right of trial by jury in actions of
law is secured by the constitution, the forms of pro-
ceeding and the rules of evidence are within the con-
trol of the legislature. * * * The constitutional power
of the legislature to prescribe rules of evidence is
well settled. 4 8 * This power has often been exercised
by the legislature, with the sanction of the courts, so as
to change the burden of proof, or to affect the question
what shall be prima facie evidence at the trial before
the jury. . . . ’ Vide Holmes v. Hunt, 122 Mass. 505. . , .
“A number of other authorities from other states
might be cited to the same effect, but we deem it un-
necessary. So far as we have examined, they all con-
cur in the view that it is within the power of a legisla-
ture to establish, change, or alter rules of evidence and
Hon. John R. Lee, page 5 (V-1428)
procedure in the courts.” [Emphasis added throughout.]
The doctrine announced in the Floeck case was followed
in subsequent decisions in this State, subject only to the qualifica-
tion that the statutory presumption must not,be an unreasonable
exercise of the legislative power and must not infringe the right
of trial by jury and the power of a jury to review all the evidence
in a case and return its verdict accordingly.
It was not until recently that the Texas courts attached
other limitations, by express language and through practical con-
struction, to the general power of the Legislature to prescribe
statutory rules of evid~ence in criminal cases. Both of these cases
involved a construction of Article 567b, V.P.C., the old, hot check
law.
In Mayes V. State, 145 Tex. Crim. 295, 167 S.W.2d 745
(1942), the Court of Criminal Appeals held invalid the provision
in the former law that proof of deposit of a check for collection
was prima facie evidence of presentation and nonpayment, The
court based its decision on the ground that the Legislature had
gone beyond legitimate limits in entending the rules of evidence
when it attempted to raise a presumption against an accused from
facts and circumstances over which he had no control and with
which he had no connection. It was also pointed out that this pre-
sumption was merely the basis for another presumption, “thus
piling one presumption upon another as to the supposed acts of
third parties with none of whom appellant had any connection, nor
over whom he had any control.” In establishing this limitation to
the general rule of the Floeck case, the court stated:
“While such a rule has been recognized by our own
court as well as many others, certainly a law should not
be upheld which would make an act prima facie evid,ence
of a necessary criminative fact against one accused of
crime when such party had no control over nor connec-
tion with the act in question. T.he same would be true
where it was sought to make certain facts and circum-
stances over which accused had no: control or with which
he had no connection prima facie evidence against him.”
In Colin v. State, 145 Tex. Grim. 371, 168 S.W.2d 500 (1943),
the case submitted to the Court of Criminal Appeals involved a
Hon. John R. Lee, page 6 (V-14.28)
prosecution for passing a worthless check in payment of a pre-
existing obligation under Section 2 of Article 567b, V.P.C. The
sole evidence introduced by the State to establish intent to de-
fraud was that the worthless check was given in payment of a pre-
existing indebtedness, The court, in reversing the case, held that
evidence which merely showed that a bad check was given in pay-
ment of a pre-existing indebtedness, without the presence of ac-
companying facts, was insufficient to establish the intent to de-
fraud which is essential to a violation of the hot check law. Thus,
the court held in effect that the presumption of intent to defraud
arising from proof of nonpayment was inoperative under these
circumstances.
The decisions in these two cases doubtlessly prompted
the Fifty-second Legislature of Texas to revise substantially the
hot check law, as it did by enacting House Bill 403. Apparently
the “prima facie evidence of intent to defraud” provision was re-’
written in an effort to obviate the defects pointed out by the Court
of Criminal Appeals and to conform to its rulings in the Mayes
case and the Colin case. In enacting Section 2 of House Bill 403,
it is our opinionat the Legislature accomplished its purpose.
The primary constitutional objection leveled at the prima
facie evidence clause of the old hot check law, under the Mayes de-
cision, was that the statutory presumption arose solely upon the
acts of third parties, over whom the accused had no control or with
whom he had no connection. We do not believe, however, that a pro-
secution utilizing the prima facie evidence rule of the new statute
would be subject to such objection. In an effort to obviate the con-
stitutional defects pointed out by the court in the Mayes case, and
to conform to the ruling therein, it was the apparent purpose of
the Legislature to transfer to a maker or drawer of a worthless
check the power to exercise the principal control and connection
over the facts and circumstances from which the, statutory presump-
tion springs. It is clear that the statutory presumption in the new
law does not become operative to establish an intent to defraud
until the maker or drawer of the bad check has received actual
notification of the nonpayment of the instrument, and, in addition,
unless such maker or drawer has not paid the holder thereof the
amount due within ten days of such notice. Thus, the new hot check
law differs from the repealed enactment in that the necessary intent
to defraud on the part of the accused cannot now be presumed until
the accused himself has had a fair opportunity to take action. The
Hon. John R. Lee, page 7 (V-1428)
requirement of notification of nonpayment of the bad, check, to-
gether wtth a ten-day period during which the maker by his ac-
tion in making the check good could automatically negative the
presumption of intent to defraud, would seem to grant the neces-
sary control and connection d,emanded by the Mayes case.
Consequently, it is our opinion that the new provision
would not fall within the limitation placed upon the general rule
in the Mayes case.
With respect to the other general qualifications on the
power of the Legislature to prescribe rules of evidence, it is
clear that the rule of prima facie evidence set out in Section 2
of House Bill 403 does not infringe the right of trial by jury.
Floerk.b State, s.
The issue of a specific intent to defraud is, in the final
analysis, a question of fact for the determination of a jury, after
full consideration of all the facts in the case. It is undisputed,
however, that the employment of a prima facie rule of evidence
in a criminal prosecution does not operate to deprive the jury of
its inherent right and power to review all of the evidence in a
case, and to return its verdict based upon all the facts.
The statutory presumption provision contained in Section
2 of House Bill 403 is not a conclusive one, but is rebuttable. It
does not operate to shift the burden of proof upon the defendant.
~The presumption of innocence still remains with the defend,ant, but
along with such presumption of innocence, the jury is entitled to
consider the presumption under the statute as to knowledge of in-
sufficient funds and intent to defraud. It is still the prerogative of
the trial jury to ascertain, as a question of fact, whether or not
under all the facts and circumstances the accused acted with the
specific intent necessary.
The general rule in Texas as to the operation and effect
of a prima facie evidence rule is succinctly stated in Floeck v.
State, s, in the following language:
“The object of this provision was not merely to
render such evidence admissible, for, without the aid
of the’statute, it might have been received, although
further evidence to show intent would have been neces-
sary. Neither is it mad,e conclusive proof of such
Hon. John R. Lee, page 8 (Vi1428)
intent, but merely presumptive evidence, and as such
proper for the consideration of the jury, in connection
with the other evidence in the case . . . . It is merely
proof of the case, upon which the jury may find a ver-
dict, unless rebutted by other evidence.”
Moreover, the fact that it is indeed difficult to establish
the specific intent to defraud in a prosecution of this nature ren-
ders it not an unreasonable exercise of the legislative power to
prescribe rules of evidence in criminal cases, and thus we believe
that this character of evidence may be resorted to in order to es-
tablish a prima facie case. Floeck v. State, supra.
The Legislature in enacting prima facie provisions to
criminal statutes does so for the purpose of aiding the State in
making proof of some essential element of the offense. It is ob-
vious from the very nature of the offense here involved that in
most cases it would be extremely difficult, if not impossible, to
establish proof of the requisite knowledge and intent by means of
subjective evidence as to the state of mind of the drawer. These
facts, therefore, must be determined primarily from the circum-
stances surrounding the offense, It is a valid exercise of the leg-
islative power to prescribe a rule of prima facie proof based upon
reasonable inferences from. established facts. Floeck v. State, su-
pra. In regard to the presumption created by Section 2 of House
G 403, there is a rational connection between the facts which must
be proved and the facts which may be presumed. Had the worthless
check been passed without any criminal intent to defraud, it is rea-,
sonable to assume that the drawer, when notified of its nonpayment,
would take immediate steps to rectify the matter, In such event, the
statutory presumption would not attach. On the other hand, a contrary
course of conduct by the drawer upon notification of the nonpayment
of the check would be indicative of his bad faith in drawing the check,
Consequently, it is our opinion that the creation of this presumption
was not an unreasonable exercise of legislative power.
For the foregoing reasons, it is our opinion that Section 2
of House Bill 403, in prescribing a prima facie rule of evidence of
intent to defraud in aid of a prosecution under the act, is a valid and
constitutional exercise of the legislative power to establish rules of
evidence in criminal cases.
Nor do we deem the case of Colin v. State, supra, to be
HOPI, John R. Lee, page 9 (V-1428)
authority to the contrary. The Colin case does not deny the power
of the Legislature to prescribe-a facie rule of evidence in
aid of the prosecution of the offense of passing a worthless check.
We conceive that the holding of the court in that case was limited
to and based solely upon the sufficiency of the evidence to support
a conviction for the offense charged. Und.er the opinion of the Colin
case, the court held only that, in a prosecution under the old hot
check law, evidence which merely showed that a bad check was giv-
en in payment of a pre-existing indebtedness, without the presence
of accompanying facts, was insufficient to establish the intent to de-
fraud which is essential to a violation of the law.
In its opinion in the Colin case, the Court of Criminal Ap-
peals stated:
*The question next arising is as to whether or not
the evidence establishes an intent to defraud where the
only thing in evidence is that the check was given for a
pre-existing indebtedness. In construing statutes of this
nature the courts of various states are in conflict. Some
cases hold that a set of circumstances may be presented
in which it is shown that, even though the check was giv-
en for a pre-existing indebtedness, there may be shown
an intent to defraud by reason of the presence of accom-
panying facts. Other cases hold, as a matter of law that
where the only thing that the evidence ~shows is that the
check was given for a pre-existing indebtedness there is
no intent to defraud, Other cases hold, as a matter of
law, that an intent to defraud is shown, though the check
was given for a pre-existing indebtedness.”
After reviewing the decisions from other jurisdictions
in support of the above-stated three general rules, the opinion con-
cludes:
“We have been unable to find any authorities in
Texas which would prove helpful. The State feels that
probably the Ohio case correctly represents the law.
There may be facts accompanying the payment of a
pre-existing debt which would evidence an intent to
defraud, but the mere fact that an accdunt was paid by
a bad check does not show an intent to defraud. We
Hon. John R. Lee, page IO (V-1428)
think a jury would be warranted in:finding an’%tent’.tO
defraud under the circumstances shown in the Lowen-
stein case from Ohio. . . .
“Under the facts of this case it would seem that
there was no inten,t to defraud shown because the evi,-
dence merely shows that the check was given for a pre-
existing indebtedness.
w
. . .
”. . . It is not to be understood that we are holding
that under no circumstances could the statute be vio-
lated by giving a bad check for a pre-existing debt. Facts
might be present which would show an intent to defraud
in giving such a check, but no such facts are here pre-
sent.”
Although the decision of the court in ruling upon the suffi-
ciency of the evidence had the practical effect of rendering useless
the prima facie evi,dence provision as an aid to a prosecution under
the old hot check law..where the :check tias.for. a pre-existing(dcbt,the
court did not, in any measure, inhibit or limit the const.itutional
authority of the Legislature to establish or change the rules of evi-
dence. In this respect the Colin case differs from Mayes v. State.
There is a distinction betwxeclaring a legislative enactment
invalid and unconstitutional and holding that the evidence, in a par-
ticular case, is insufficient to establish an essential elemem of an
offense under the law, In the one case, the decision operates as a
judicial ascertainment of the limitations of the legislative authority
upon some specific constitutional ground, thereby offering some
guide or criterion to the future powers and prerogatives of the Leg-
islature. On the other hand, a decision ruling upon the suffi,ciency
of the evidence tends only to determine the basic or mi.nimum stand-
ard of proof required in order to establish the commi,ssion of an of-
fense or to prove an essential element thereof. Therefore, when a
new case is initiated based upon new and additional facts in excess
of the minimum standard required by judicial precedent, the suffi-
ciency of the evidence to establish the essential element must of
necessity be decided primarily upon the merits of the singular facts
and circumstances of the new prosecution.
Thus, we are convinced that a prosecution brought under
Hon. John R. Lee, page 11 (V-1428)
the new hot check law would not present an analogous fact situa-
tion to that which existed in the Colin case. For should the prose-
cution seek to utilize the prima facie rule of evid,ence of Section 2
of House Bill 403, the proof offered by the State must not only es-
tablish the nonpayment of the worthless check, but must of neces-
sity further reveal evidence of the notification of the nonpayment
of the check to the drawer, in addition to evidence that the drawer
did not make the check good within a ten-day period. This addi-
tional evidence which is required to be shown prior to the operation
of the prima facie rule exceeds the minimum standard of proof se:.
by the Colin case to establish an intent to defraud, thereby di?t;n-
guishing the fact situation as developed in the Colin case.
AccordingIv, in view of the additional matters of proof
which must be offered by the State in order to invoke the opera’.::t::.
of the statutory presumption. ,litis our opinion tnat the decision ir,
Colin v. State, supra, would no? ac6 as a riullification of the present
prima facie evidence rule in Section 2 of House Bill 403.
The case of State v. Lowenstein, 109 Ohio St. 393, 142 N.
E. 897 (1924), upon which the court in the Colin case placed great
reliance. tends to support our position in this matter. Under the
facts of the Ohio case, a Mrs. McCarthy was employed to make
dresses ft.-r Lowenstein. At the end of a week’s work Lowenstein
gave her a check to cover her wages. Mrs. McCarthy continued to
wor’4 dr.d ,!h, check was returned by the bank for insufficient funds.
When noiifled of the nonpayment of the worthless check, Lowen-
?+ei.n stated that he would make the check good. Tlz .Irial court di-
rected a verdict for the defend,ant on the ground zhat in no case
whr.te a chi,ck is given for a past consideration can an intent to de-
rraud exist. The Supreme Court of Ohio, in reversing the action of
the trial ccturi,, held, in effect that the prima facie evidence rule
operated in all cases where checks were given ior a past considera-
tion, but the prima facie case could be rebutted. It was pomted out,
however, that the question whether the prima tacie case had been
successfully established or rebutted was for the determination of
the jury and should not have been decided by the trial judge. In its
opinion the court stated:
‘The sole question in this case is this: Does the
giving of a check drawn on a bank wherein there are in-
sufficient funds to pay the same, when the check is giv-
en for a past consideration, constitute a prima facie
Hon. John R. Lee, page 12 (v-1428)
violation of section 710-116 of tbe General Code?
This section reads as follows: ‘, . . As against the
maker or drawer thereof, the making, drawing,
uttering or delivering of a check, draft, or order,
payment of which is refused by the drawce. shall be
prima facie evidence of intent to defraud, and know-
ledge of insufficient funds in, or credit with, such
bank or other depositary.. . ,’
l...
*It is evident, therefore, that the learned judge
was of the opinion that in no case where a check is
given for a past consideration can intent to defraud ex-
ist, and that the prima facie evidence of intent to de-
fraud, which, under the statute, exists when,payment
of the check is refused by the drawee, is rebutted
when it is shown:that the check is given for a past con-
sideration.
-* . .
‘If rebutted, the presumption must be rebutted by
something in the nature of the act of giving a ‘cold
check’ for a past consideration, which establishes enough
of good faith to counteract the presumption of fraud,ulent
Went specifically raised by the statute,
Y
l ..
“When in payment of a past consideration a man
gives a check, if he gives the check knowing that he has
not fund,s on deposit to cover it, why does he so act? He
so acts because .he expects to gain an advantage. He ex-
pects perhaps to deceive persons who are pressing for
payment; he expects them to think that he has paid the old
debt when he has not paid.
“. . .[The statute] provides . . . that the return of the
check is prima facie proof of ‘intent to defraud, and know-
ledge of insufficient funds in, or credit with, such bank or
other depositary.’ That is, the statute places the know-
ledge of the insufficiency of funds on the same plane as
Hon. John R. Lee, page 13 (V-1428)
intent to defraud, and thtrs makes proof of such
knowledge evidence ef Mert to &fraud.
‘The fact of knowledge cannot be determined
until evidence is taken upoa tbat point Certainly it
cannot be de,termined. on a stoiement such as was giv-
en by the proseeutur in thhla case,. Intent to defraud
and knowledge of the iasuffi&mcy of the fund are
questions of fact, te be determined on all the evidence
by the jury. . . .
“It is not the holding mf this court that the issue
of such a check for a past-due obligation is conclusive
evidence of an intent to d,efraud. It is a prima facie
evidence only. and miy be rebutted in the course of
the trial. The court, however, does heId that a prima
facie case of intent to d,efraud was established upon the
facts here set forth, and, that, the learned judge erred
in sustaining the motion to take the case from the
jury.*
The prosecution in the Lowenstein case was bottomed up-
on a statute very similar to the present Texas statute. With the ex-
ception of the ten days’ notice of nonpayment provision, the prima
facie evidence of intent to defraud sections are almost identical in
language. As in the Colin case, the deci.aion’in the Lowenstein case
rested upon the sufficiency of the evidence to establish the essential
intent to defraud, and, the court held that proof of nonpayment of the
check was sufficient to establish a prima facie case calling for a
jury determination on the question of intent. The additional require-
ment in the Texas statute for proof of the drawer’s failure to make
the check good, furnishes an even stronger basis for the pres~umption
of fraudulent intent than was present in the Ohio statute.
The crime of uttering and passing a worthless check given
in payment of a pre-existing debt was first introduced into the law
of this State in 1939 by the enactment of Article 567b. It was cre-
ated to meet a situation different from’ that covered by the offense
of swindling or obtaining property under false pretense as defined
in Article 1546, V.P.C. By expressly including checks given for
past debts, the Legislature clearly evid,enced its intention to protect
creditors from receiving “hot checks’ in payment of previously in-
curred obligations. It was pointed out in State v. Lowenstein, supra,
Hon. John R. Lee, page I,4 (V-1428)
that the purpose of a statute of this nature is to protect the cred-
it intercourse of the community -- ‘to protect business men all
over the state, to protect commercial life; about 90 per cent of
the commercial work of the world being done on credit,. The
exigencies of trade, commerce, and, banking have necessitated
the creation of a crime of this nature and the adoption of ne~w rules
of evidence for the establishment of proof of its commission. As
so aptly expressed in the Lowenstein case, the statutory presump-
tion of fraudulent intent arising from the giving of a worthless
check for a past obligation is not an unreasonable onebfor why
would the drawer of the check so act, unless it was because he
expected to deceive or to gain an advantage 7
In the Colincase, the Court of Criminal Appeals was of
the opinion that *a jury would be warranted in finding an intent to
defraud under the circumstances shown in the Lowenstein case
from Ohio.. It is our conception that a fact situation arising under
the new hot check law would approach circumstances similar to
those present in the Ohio case. In that case, when the check was
returned for insufficient funds, the payee notified the drawer of
such nonpayment, at which time the drawer stated that he would
make the check good. The prima facie rule in House Bill 403
contemplates that a payee, upon nonpayment, must similarly noti-
fy the drawer of such fact, thereby eliciting from the drawer some
statement or course of conduct which would aid in revealing his
clear intention in passing the worthless check. No facts of this
nature were present in the Colin case. From our study of the
language in the Colin case, we suggest that the Texas court would
sustain the suffizy of such evidence to establish prima facie
proof of the essential intent to defraud.
Your remaining two questions concern the necessity of
giving the ten days’ notice of nonpayment of the check to the drawer,
as provided in Section 2 of House Bill 403, as a prerequisite to a
prosecution under the act.
We are in agreement with the conclusions st~ated in your
brief to the effect that a prosecution may he brought under the new
hot check law without giving the ten days’ notice as provided in the
statute. As you have so ably stated, it was the primary purpose of
the Legislature in including a prima facie evidence provision in
the new law to assist the prosecution in those cases in which the
other evidence might be insufficient or unavailable to establish the
,. .
HOG John R. Lee, page 15 (V-1428)
commission of the offense or in proving some essential element
thereof. This statutory presumption is, in a sense, merely a
means of “bridging the gap” in situations wherein it is difficult,
if not impossible, for the prosecution to adduce subjective evi-
dence as to certain matters not ordinarily capable of proof by
other evidence. The employment of the statutory presumption,
however, is not compulsory or mandatory upon the State in every
such prosecution, but, as in the case of any evidentiary rule, the
State may choose to submit evidence based. upon such rule, as
in its discretion is deemed expedient and proper. Should the
State elect to rely upon the statutory presumption, however, it
is our opinion that the ten days’ notice of nonpayment would then
be an ind,ispensable condition precedent to the operation of the
prima facie rule of evidence in Section 2.
In the recent case of Watson v. State, 229 S.W,Zd 621,623
(Tex. Crim. 1950), the Court of Criminal Appeals ruled upon this
very point:
“Proof of presentment for payment of a check is
re,quired only when the presumptions provided in Art.
567b, Vernon’s P.C., are relied upon by the State.
‘Here, the owner of the automobile proved d,irect-
ly that the appellant had no account with the bank upon
which the check was drawn. The State, therefore, did
not rely upon the presumptions arising by reason of
nonpayment of the check after presentation for pay-
ment.”
Upon the same authority and for like re,ason, it is our
further opinion that a prosecution may be initiated without the ten
days’ notice of nonpayment of the check, in a situation where the
worthless check is given in payment of a pre-existing indebtedness,
but where other circumstances are present to sufficiently establish
the necessary intent to defraud.
SUMMARY
Section 2 of Article 567b, V.P.C., as amended by
House Bill 403, Acts 52nd Leg., R.S. 1951, ch. 305, pa
496, in prescribing a rule of prima facie evidence of
Hon. John R. Lee, page 16 (V-1428)
intent to defraud in aid of a prosecution for passing a
worthless check is valid and constitutional.
Where a chgck is gi,ven in payment of a pre-existing
debt, the failure of the drawer to pay the holder the amount
of the check within ten days titer notice of its nonpayment
by the drawee is prima facie evid,ence of intent to defraud
on the part of the drawer.
The ten days’ notice to the drawer of nonpayment of
a worthless check, as provided in Section 2 of House Bill
403, is not a prerequisite to a prosecution under the Act
Yours very truly,
APPROVED: PRICE DtiIEL
Attorney General
Mary Kate Wall
Reviewing Assistant
By~lg~
Charles D. Mathews Hugh Lyerly
First Assistant Assistant
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