Hon. John R. Lee 

County Attorney 

Winkler County 

Kermit, Texas 

Dear Mr. Lee: 

Opinion No. V-1428 

Ret Se,veral questions on H. .B. 

40.3, 52nd Legislature, the 

*Hot Check Law.” 

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 inquiry directed to the validity of the ‘prima facie evidence of intent 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 constitutionality 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 follows: 

“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, person, 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 thereof, 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 corporation, 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 registered 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 unpaid 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 admissible 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 amending Article 567b, V.P.C., embodies substantial changes not ~only in 

the import and substance of the offense but also in the rules of evidence available in the prosecution of the offense. This is especially 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 evidence 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 nonpayment 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 Burden 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 examination of the pertinent authorities in this State, it is our opinion 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 Texas 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 license procured from the federal authorities to pursue the occupation of a liquor dealer prima facie evidence that the party procuring 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 proceeding and the rules of evidence are within the control 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 unnecessary. So far as we have examined, they all concur in the view that it is within the power of a legislature 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 qualification 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 construction, 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 presumption 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 connection with the act in question. T.he same would be true 

where it was sought to make certain facts and circumstances 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 preexisting obligation under Section 2 of Article 567b, V.P.C. The 

sole evidence introduced by the State to establish intent to defraud was that the worthless check was given in payment of a preexisting indebtedness, The court, in reversing the case, held that 

evidence which merely showed that a bad check was given in payment of a pre-existing indebtedness, without the presence of accompanying facts, was insufficient to establish the intent to defraud 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 decision, 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 prosecution utilizing the prima facie evidence rule of the new statute 

would be subject to such objection. In an effort to obviate the constitutional 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 presumption 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, together wtth a ten-day period during which the maker by his action in making the check good could automatically negative the 

presumption of intent to defraud, would seem to grant the necessary 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 insufficient 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 necessary. 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 verdict, 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 renders 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 establish 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 obvious 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 circumstances surrounding the offense, It is a valid exercise of the legislative power to prescribe a rule of prima facie proof based upon 

reasonable inferences from. established facts. Floeck v. State, supra. 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 given in payment of a pre-existing indebtedness, without the presence 

of accompanying facts, was insufficient to establish the intent to defraud which is essential to a violation of the law. 

In its opinion in the Colin case, the Court of Criminal Appeals 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 given for a pre-existing indebtedness, there may be shown 

an intent to defraud by reason of the presence of accompanying 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 concludes: 

“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 Lowenstein 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 preexisting indebtedness. 

w 

. . . 

” 

. . . It is not to be understood that we are holding 

that under no circumstances could the statute be violated 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 present.” 

Although the decision of the court in ruling upon the sufficiency 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 evidence. 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 particular 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 Legislature. On the other hand, a decision ruling upon the suffi,ciency 

of the evidence tends only to determine the basic or mi.nimum standard of proof required in order to establish the commi,ssion of an offense 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 sufficiency 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 situation to that which existed in the Colin case. For should the prosecution 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 establish the nonpayment of the worthless check, but must of necessity 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 additional 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;nguishing 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. ,lit is 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 directed 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 derraud 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 consideration, 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 insufficient funds to pay the same, when the check is given 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 knowledge 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 exist, and that the prima facie evidence of intent to defraud, 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 consideration. 

-* . . 

‘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 expects 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 knowledge of insufficient funds in, or credit with, such bank or 

other depositary.’ That is, the statute places the knowledge 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 given 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 upon a statute very similar to the present Texas statute. With the exception 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 requirement 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 created 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 incurred 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 credit 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 presumption 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 notify 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 evidence 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,irectly 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 payment.” 

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: 

Mary Kate Wall 

Reviewing Assistant 

Charles D. Mathews 

First Assistant 

PRICE DtiIEL 

Attorney General 

By~lg~ 

Hugh Lyerly 

Assistant 

HLznf