Untitled Texas Attorney General Opinion

October30, 1987
Honorable John B. Holmes, Jr. Opinion No. JM-820
Harris County District Attorney
201 Fannin, Suite 200 Re: Whether a conviction
Houston, Texas 77002 for the offense of issu-
ing a bad check will bar
a prosecution for theft
where both offenses arise
out of the same trans-
action
Dear Mr. Holmes:
You ask whether the double jeopardy provisions of the
state and federal constitutions will bar the prosecution
of a defendant for theft of property fraudulently obtained
by the passing of a worthless check where the defendant
has already been prosecuted for the class C offense of
issuance of a bad check. Under the scenario you provide
both offenses grow out of the same transaction.
The United . States Constitution and the Texas
Constitution prohibit any person from twice being placed
in jeopardy for the same offense. U.S. Const., amend. V;
Texas Const. art. 1, 514.
Section 32.41 of the Penal Code makes the issuance of
a bad check a class C misdemeanor. It provides in
pertinent part:
(a) A person commits an offense if he
issues or passes a check or similar sight
order for the payment of money knowing that
the issuer does not have sufficient funds in
or on deposit with the bank or other drawee
for the payment in full of the check or
order as well as all other checks or orders
outstanding at the time of issuance.
Article 32.41 was amended in 1987 by adding
subsection (g) to read as follows:
p. 3895
Honorable John B. Holmes, Jr. - Page 2 (JM-820)
An offense under this section is not a
lesser included offense of an offense under
section 31.03 or 31.04 of this code.
(Emphasis added.)
Penal Code 932.41(g); Acts 1987, 70th beg., ch. 687, at
5091.
Under article 31.03 of the Penal Code the offense of
theft is defined, as follows:
(a) A person commits an offense if he
unlawfully appropriates property with intent
to deprive the owner of property.
(b) Appropriation of property is unlawful
if:
(1) it is without the owner's effective
consent:
(2) the property is stolen and the actor
appropriates the property knowing it was
stolen by another: or
(3) property in the custody of any law
enforcement agency was explicitly
represented by any law enforcement agent to
the actor as being stolen and the actor
appropriates the property believing it was
stolen by another.
A person commits the offense of theft of service
under article 31.04 of the Penal Code when the following
elements are present:
(a) A person commits theft of service if,
with intent to avoid payment for service
that he knows is provided only for compensa-
tion:
(1) he intentionally or knowingly secures
performance of the service by deception,
threat, or false token;
(2) having control over the disposition
of services of another to which he is not
entitled, he intentionally or knowingly
diverts the other's services to his own
p. 3896
Honorable John B. Holmes, Jr. - Page 3 (JM-820)
.
benefit or to the benefit of another not
d-
entitled to them; or
(3) having control of personal property
under a written rental agreement, he holds
the property beyond the expiration of the
rental period without the effective consent
of the owner of the property, thereby
depriving the owner of the property of its
use in further rentals.
The punishment range under articles 31.03 and 31.04
is from a class C misdemeanor to a 2nd degree felony.
The Court of Criminal Appeals, in the recent case of
Mav~v. State, 726 S.W.2d 573 (1987), held that a defendant
convicted of involuntary manslaughter could not be
prosecuted for driving while intoxicated where both
offenses arose out of the same automobile accident. After
reviewing numerous United States. Supreme Court and Court
of Criminal Appeals decisions and noting that the double
jeopardy prohibition may preclude subsequent prosecution,
- even though each offense may include elements which the
other did not, the court stated:
Turning to the instant cause, we first
note that both offenses are alleged to have
been committed June 12, 1983. The
indictment for involuntary manslaughter
alleged in part that in Dallas County
appellant did:
'then and there by accident and mistake
when oneratina a motor vehicle while
intoxicated. and bv reason of such intox-.
ication, [emphasis in original] cause the
death of [a named individual], by then
and there driving her automobile across a
center median [emphasis in original] and
colliding with a vehicle occupied by
[named individual], and thereby cause the
death of said individual.*
The information for DWI alleged in pertinent
part that appellant:
'was intoxicated. and under the influence
of intoxicatina liouor. and while so
intoxicated and under the influence of
p. 3891
Honorable John B. Holmes, Jr. - Page 4 (``-829) .
i
intoxicatina liouor, [emphasis in
original] did then Andy there unlawfully ?,
drive and operate a motor vehicle upon a
public street and hiahway, [emphasis in
original] in Dallas County, Texas.'
Facially allegations of the greater offense
of involuntary manslaughter required proof
of the lesser offense, i.e., that appellant
operated her motor vehicle upon a public
roadway while intoxicated and collided with
another vehicle after driving across a
center median. The record clearly shows
that the State will rely on and seek to
prove the DWI case the same act of driving
while intoxicated on public roadway as 'the
reckless act necessary to prove [involun-
tary] manslaughter.' Vitale, sunra at 421,
100 S. Ct. at 2267.
Thus the record, including charging
instruments, judgment of conviction for
involuntary manslaughter and habeas testi-
mony, demonstrates that annellant has been
convicted of a crime havina several elements
included in it and is now facina a trial for
a lesser offense consistina solelv of one or
more of the elements of the crime for which
she has alreadv been convicted. In this
Court the State practically concedes the
point by relying on the fact that the
judgment in State v. Padilla, 101 N.M. 58,
678 P.2d 686, 101 N.M. 82, 678 P.2d 710
(1984), was affirmed by an equally divided
Supreme Court, Fuaate v. New Mexico, 470
U.S. 904, 105 s.ct. 1858, 04 L. Ed. 2d 777
reh. den. 471 U.S. 1112, 105 S. Ct. 2349, 85
L. Ed. 2d 865 (1985). (Emphasis added.)
726 S.W.2d at 576-577.
Prior to the present Penal Code, the offense of
passing a check without sufficient funds was the only
statutory offense involving worthless checks. The pro- -,
hibited conduct was set forth in article 567b of the Penal
Code (1939) (repealed). The current Penal Code (1974)
allows prosecution under the theft statutes, section 31.03
(general theft) and section 31.04 (theft of services). In I
addition, section 32.41 makes the issuance of a bad check
p. 3898
Honorable John B. Holmes, Jr. - Page 5 (m-820)
a class C misdemeanor. The Practice Commentary following
section 32.41 noted, in pertinent part:
This section expands prior law in the bad
check area. Underlying this provision is
the belief that the issuance or passing of a
known bad check is, in itself, not only
harmful to the recipient but also injurious
to the community at large and is, therefore,
a proper subject for criminal sanction with-
out regard to the purpose for which the
check was givon. For example, even if the
immediate recipient gives up nothing in
return for the check, and, therefore, is not
defrauded in the strict sense of that term,
he may further negotiate the check, or
deposit it and draw against it. This poss-
ibility places him in a precarious position
and creates a threat of harm to the general
public. Another important function of ~the
provisiqn is the encouragement of prompt
payment of dishonored checks.
In reviewing the elements of theft and the issuance
of a bad check the Court of Criminal Appeals '
Christiansen v. State, 575 S.W.2d 42 (1979), in an appeiy
from a theft conviction arising out of the passing of bad
checks in the amount of $241.80~in exchange for four money
orders, stated:
The record does reflect that appellant
properly requested a charge on the lesser
included offense of issuance of a bad check
under Sec. 32.41, sunra. The key distinc-
tion between the offense of theft under
V.T.C.A. Penal Code, sec. 31.03, and the
offense of issuance of a bad check under
V.T.C.A. Penal Code, Sec. 32.41~, is whether
the defendant in fact receives any property.
Receipt of property and proof of its value
are critical elements in the offense of
theft. They are, however, not required to
prove issuance of a bad check.
575 S.W.2d at 44.
The court in Christiansen did, however, go on to
state, "[a]lthough issuance of a bad check, a class C
misdemeanor, may under some circumstances be a lesser
p. 3899
Honorable John B. Holmes, Jr. - Page 6 (m-829)
included offense of theft, there is nothing in the
evidence before us to have required the trial court to -
have submitted the charge on the lesser included offense."
& at 44-45.
In a more recent opinion, WcClain v. State, 687
S.W.2d 350 (1985), the Court of Criminal Appeals overruled
previous holdings of the court that participation in the
initial acquisition was an essential element of the
offense of theft. The court concluded that, under the
present Penal Code, there was no distinction in the
essential elements of the offenses of theft and receiving
and concealing stolen property. The court stated that:
The error of w [633 S.W.2d 885, Tex .
Crim. App., 19821 is precipitated by its
focus on the 'manner of acquisition' of
personal property, a focus the Legislature
removed entirely from the theft statute in
the 1974 penal code, then further refined in
the 1975 legislative session. Just as it
has been in the past recognitied that the
actor's intent to 'benefit himself
anotherr or to 'withhold the prope$
permanently' are not essential to commission
of a theft, so too has it now been
acknowledged that the 'manner of acgui-
sition' is inconsequential to the evil of a
theft: the gravamen of theft is in
deDriVino the true owner of the use,
benefit. eniovment or value of his vrovertv,
[emphasis in original] without his consent.
Thus, the varying misleading emphases on
aspects of acquisitive conduct proscribed
under former penal codes were sifted out by
the new, and a single offense was distilled
from the common elements contained in each:
clearlv. if one exercises control over
proDertv knowina it is without the owner's
consent. and intendina to devrive the owner
f it, it matters not 'how' the actor a t
zhe vroDertv [emphasis added] whether ge
intended to' benefit himself or another,
intended 'permanently' to deprive the owner,
etc.
p. 3900
Honorable John B. Holmes, Jr. - Page 7 (m-820)
. * . .
Section 31.03(b)(l) and (2) simply do not
provide the 'nature of the forbidden
conduct;' instead, they are both only ‘cir-
cumstances surroundinq [emphasis in
oriainall the conduct.# which in no wav con-
stitute - 'acts or . omissions' of- the
defendant. It follows that these provisions
have evidentiary import only in terms of
establishing the \unlawfulness' of the
appropriation, and the defendant is not
entitled to have them expressed in the
State's charging instrument as a matter of
'form' under Thomas v. State, 621 S.W.2d 158
(Tex. Cr. App. 1981) (Opinion on state's
motion for rehearing), much less substance.
687 S.W.2d at 353-55.
While the Legislature by its amendment to article
32.41 was probably expressing the intent that there be no
bar to the imposition of multiple punishments under that
statute and the appropriate theft statute, we believe the
crucial test in determining whether jeopardy attaches
under the state and federal constitutions requires us to
look at the elements of the respective offenses. Unlike
the defendant in m, a defendant convicted for issuance
of a bad check has not been convicted of a crime having
any of the elements of the offense of theft. WcClain made
it clear that it "matters not" how the accused acquired
the property in a theft case. On the other hand, the
issuance or passing of a known bad check is the gravamen
of the offense under section 32.41.
It is our opinion that the courts will hold that the
trial of an accused for the offense of issuance of a bad
check under section 32.41 of the Penal Code will not serve
as a bar under the double jeopardy provisions of the state
and federal constitutions to a prosecution for theft
(under section 31.03 or 31.04 of the Penal Code) growing
out of the same transaction.
SUMMARY
The trial of an accused for the offense
of issuance of a bad check under section
32.41 of the Penal Code will not serve as a
bar under the double jeopardy provisions of
p. 3901
Honorable John B. Holmes, Jr. - Page 8 (JH-820)
the state and federal constitutions to a
prosecution for theft (under sections 31.03
or 31.04 of the Penal Code) growing out of
the same transaction.
JIM MATTOX
Attorney General of Texas
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 3902