Untitled Texas Attorney General Opinion ( 1951 )

December 19, 1951
Hon. Sam Lee Opfnion NO. v-1378
Coimty Attorney
Brazorla County Rer Which county haa venue la
Angleton,s Texae a hot check crlmlnal prose-
_. cution uhim a check Is
drawn In on8 county upon a
bank In that county and Is
. mall8a from that county to
a payee locatsd In another
Dqar Sir: c ountg .
You have requested an opinion of this office
based in part on the follovlng fact situation:
"'A ’ would’ vrLt.8 E check. ir ,ba1V8S-
ton Coumtp, Texas; the check would b8
. 111td18din calV8StOn oOUUty,aIId WFitt8tI
on a Oalveeton Coimty beak. The ch8ck
would be placed la a8 elWeloQ6 a~nd aa-
dr8888d to a p8reOlI~ln Brazorla couatg
and the BratorI& County recipient of the
FQ8ck WOUld 8ndOrfl8 the Bam8;plCW8 it
in on8 of the &azOrla COUdy bank8 for
COll8CtiOn, and UpOn being retUl'l8d t0
+he Oafvexstvn Countybank the check
.would either be iTlEtZ'k8d'iENffiCl8llt
funds or no such account, and the cd-
ciplent of the check In Brazorla County
would present hlms&lf to my office to
file a hot check camplaint after having
given due notice."
Your qU8BtiOi with regard t0 the88 facts 18,
*Does venue 118 In Brazorla County for purposes of crlm-
inal. pFO88CUtiOn under the hot check law of Texas?"
S8CtiOn(q of Article 567’b, Y.P.C., was amend- ti
8d by HOUS Bill 403, Acta 521~3 hagiSlatUr8, R.S. 1951,
ch. 305, p. 496; to mad as followsi
*It'shall b8 unlawful for any per-
son to procure any article or thing of
va 1U8, or to secure poseesalon of any
Hon. Sam b8, page 2 (v-137tl)
personal property to which a lien haa
attached, or to make payment of any pre-
existing debt or other obligation of what-
ao8ver form or natW8, or for any other
purpose t0 make or draw or Utter or de-
liver, with Intent to defraud, any check,
draft or brder, for the payment of money,
upon any bank, person, firm or corpora-
tion, knowing at the time of such making,
drawing, uttering or delivering, that the
maker, 07 drawer, has not sufficient funda
In, or on deposit with, such bank, person,
firm or aorporatlon, for the payment of
such check, draft or order, ln full, ana
all Other checks, draft8 or order8 upon
such&unda then outstanding."
l8ith8r the original or amended act has
epeclflc venue provisions. Therefore, V8nU8 18 COn-
trolled by Article 211, V.C.C.P., which states, 'If
Venue 18 not specifically stated, the proper county
for the proeeoutlon of offenses Is that In which the
offense wa8 committed."
The offenses deecrlbed in 8eCtiOn (l), au ra,
are the makln2 Urawiw uttering or clellverln~ *
intent t0 d8 aUd; any dheck, drait or Order
payment of mOn8y . . .l -In Jones v. State, 226 S.W.
26 437 (Tex. Crlm. 1950), Vhlch Involves a construc-
tion of Article 567b,V.P.C., prior to the amendment
here in question, the court said at page 442:
"The judgment and sentence are re-
formed so aa to state the offense aa ob-
talnlng money with intent to defraud by
a check in.!the amOUnt of 50 or
hout aufflclent funds.' tEmpha-
818 added."
We think this holding la applicable to the present
statute, and that It clearly indicate8 that the gist
Of the Off8n88 Committed 18 the “draWi@ with intent
tcj defraud.
In the Jones case, venue was In the county
where th8 offensecharged, b drawin g, took place. In
the
the fact situation presented y you venue would lie in
Galveston County if the proof adduced at the trial sup-
ported a mak;n& or drawing of the check in Galveeton
Hon. Sam Lee, page 3 (V-W@)
County coupled with proof of Intent to defraud es re-
quired by the statute. Similarly, the venue would
118 in &'aZOria .cOUIltyif the proof adduced at the
upon the Offense that Is prOV8d Where different of-
fenses are COURUitt8d in diff8X'ent COWti8fl; .although
they are all phaEi88 Of one.traneaCtiOn.
Your recond question is:
"If a person makes payment of child
support, as~providsd~ln the decree of di-
vorcement, by making, uttering and dellver-
ing with Intent to defraud a check for the
pagment of the same, does such a check come
within the purview of the hot check law of
Texas?'
The portion of Section (l), BU ra which reads
*or to make payment of any pre-existing%' de t or other
obligation of;whatsoever form or nature, or for any other
purpose. . . covers, In our opinion, the giving of a
hot check" for child support payment if the other statu-
tory requisites are present.
SUMMARY
The "Hot Check Law", Art. 567b,V.PX.,
makes.no provision as to venue for trial
of the offenses defined. Under Article
211, V.C.C.P., the general venue statute,
venue lies in the county'in which the of-
fense of making, drawing, uttering, or
delivering of the "hot check" takes place.
If more than one Of the defined OffenS
occurs, and in different counties, as phases
of on8 transaction, V8nU8 lies in any On8
of th8 counties, provided that the proof
adduced was of the Offense conjmitted in
the given county.
The other statutory requisites being
present, the glvlng of a "hot check" for a
408 Hon. Sam Lee, page 4 (V-13781
child support
by Art. 567b,V.P.C .
Yours ver; tiuly,
APPROVED: PRICE DANIiXL
Attorney General
J. C. Davis, Jr.
County Affaixla Division
ChPrles D. Mathews
First Assistant
BW,EWT:mb Aaslatants
.