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, Ofprimary importance is your inquiry directed to the validity ofthe ‘prima facie evidence of intent to defraud” provision contained inSection 2 of **House** Bill 403. Our consideration of this question entails adiscussion of two distinct phases ofthis matter, namely, (1) the constitutionality ofthe “prima facie evidence. provision, and (2)the construe’ tion, operation, and effect ofthis provision in view of Colin v, State, 145 Tex. Grim. 371, **168** S.W.Zd 500 (1943), in reqto a worthless check given inpayment of apre-existing obligation. Your remaining two questions concern the necessity ofthe ten days’ notice of nonpayment ofaworthless check to the drawer,
as provided inSection 2 ofHouse Bill 403, as aprerequisite to aprosecution under the act.

The pertinent provisions ofHouse Bill 403 are as follows:

“Section 1. Itshall 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 ofwhatsoever **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 ofmoney, upon any bank, person, firm or corporation, knowing atthe 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 ondeposit with, such bank, person, firm or corporation, for the payment ofsuch 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 ofwhich 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 inwriting. Such notice inwriting shall be conclusively presumed to have been given when deposited, as registered matter, inthe United States mail, addressed to such person,at his address as it appears on such check, draft or order.”
The comparable section ofthe repealed Article 567b. V. P.C., prior to the 1951 amendment, provided as follows:

“Sec. 2. Itshall 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, atthe 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 ofthe deposit ofsaid check, draft, or order with abank for collection inthe 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 ofpresentation to, and nonpayment of said check, draft, or order by, the bank, person, firm,
or corporation upon whom itwas drawn; andprovided further that where such check, draft, or order has been protested, the notice ofprotest thereof shall be admissible as proof ofpresentation 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 itwas drawn andwas not paid,”

Itis to be noted that the new *Hot Check Law,” inamending Article 567b, V.P.C., embodies substantial changes not~onlyin the import and substance ofthe offense but also inthe rules of evidence available inthe prosecution ofthe offense. This is especially true inSection 2 ofHouse 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 ofnonpayment, the second to the presumption ofpresentation and nonpayment upon proof of deposit, and the third to the presumption ofpresentation and nonpayment upon proof of notice ofprotest. The new hot check law omits the second and third rules altogether; and itmodifies the first rule by raising a statutory presumption..of intent to defraud and knowledge of insufficiency offunds upon proof ofnonpayment, 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 aprima~facie case. See Floeck v. State, 34 Tex. Grim, 314, 30S.W. 794 (1895); McCormick, Charges on Presumptions and Burden ofProof, 5N.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 inwhich to make the worthless check good.

After acomparative study ofthe **two statutes**  and an examination ofthe pertinent authorities in this State, it is **our** opinion that the **“ rule**  ofprima facie evidence” contained inSection 2 ofHouse Bill 403 is valid and constitutional.

Itis well recognized in Texas and throughout the United States that the legislature may within certain limits establish or change the rules ofevidence. 2Wharton, 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, 30S.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).

InFloeck v. State, supra, the Court of Criminal Appeals held that it was within the power ofthe Legislature to make alicense procured from the federal authorities to pursue the occupation of a liquor dealer prima facie evidence that the party procuring itpursued such occupation for the time specified inthe license, Inannouncing this rule, the Court in its opinion stated:

”‘While the right oftrial byjury in actions of law is secured by the constitution, the forms ofproceeding and the rules of evidence are within the control ofthe legislature. * * * The constitutional power ofthe legislature to prescribe rules of evidence is well settled. 4 8* This power has often been exercised by the legislature, with the sanction ofthe courts, so as to change the burden ofproof, or to affect the question what shall be prima facie evidence atthe trial before thejury.

. . .’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 inthe view that it is within the power of alegisla**ture** to establish, change, or alter rules of evidence andHon. John R. Lee, page 5 (V-1428)

procedure inthe courts.” [Emphasis added throughout.]
The doctrine announced inthe Floeck case was followed in subsequent decisions inthis State, subject only tothe qualification that the **statutory** presumption must not,be an unreasonable exercise ofthe legislative power andmust not infringe the right oftrial byjury and the power of ajury to review all the evidence in a case and return its verdict accordingly.

Itwas not until recently that the Texas **courts** attached other limitations, by express language and through practical construction, to the general power ofthe Legislature to prescribe statutory **rules** of evid~ence in criminal cases. Both ofthese 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 ofa check for collection
was prima facie evidence ofpresentation andnonpayment, The court based its decision onthe ground that the Legislature had gone beyond legitimate limits in entending the rules of evidence when it attempted to raise apresumption against an accused from facts and circumstances over which he had no control and with which he had no connection. Itwas also pointed outthat this presumption was merely the basis for another presumption, “thus piling one presumption upon another as tothe supposed acts of third parties with none ofwhom appellant had any connection, nor over whom he had any control.” Inestablishing this limitation to the general rule ofthe Floeck case, the court stated:

“While such a rule has been recognized by our own **court** as well as many others, certainly alaw should not be upheld which would make an act prima facie evid,ence of anecessary 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 itwas 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.”

InColin v. State, 145 Tex. Grim. 371, 168 S.W.2d 500 (1943), the case submitted to the Court of Criminal Appeals involved aHon. JohnR. Lee, page 6 (V-14.28)

prosecution for passing aworthless check in payment of apreexisting obligation under Section 2 ofArticle 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 apreexisting indebtedness, The court, in reversing the case, held that evidence which merely showed that abad check was given in payment of apre-existing indebtedness, without the presence ofaccompanying facts, was insufficient to establish the intent to defraud which is essential to a violation ofthe 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 inthese 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 inthe Mayes
case and the Colin case. Inenacting Section 2 ofHouse Bill 403, it is our opinionat the Legislature accomplished its purpose.

The primary constitutional objection leveled at the prima facie evidence clause ofthe 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 aprosecution utilizing the prima facie evidence rule ofthe new statute would be subject to such objection. In an effort to obviate the constitutional defects pointed out by the court inthe Mayes case, and to conform to the ruling therein, itwas the apparent purpose of the Legislature to transfer to amaker or drawer of aworthless check the power to exercise the principal control and connection over the facts and circumstances from which the,statutory presumption springs. Itis clear that the statutory presumption inthe new law does not become operative to establish an intent to defraud until the maker or drawer ofthe bad check has received actual notification ofthe nonpayment **of** the instrument, and, in addition, unless such maker or drawer has not paid the holder thereof the amount due within ten days ofsuch notice. Thus, the new hot check law differs from the repealed enactment inthat the necessary intent to defraud onthe part ofthe accused cannot now be presumed until the accused himself has had afair opportunity to take action. TheHon. JohnR. Lee, page 7 (V-1428)

requirement **of** notification ofnonpayment ofthe bad,check, together wtth aten-day period during which the maker by his action in making the check good could automatically negative the presumption ofintent 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 inthe Mayes case.

With respect to the other general qualifications onthe power ofthe Legislature to prescribe rules of evidence, it is clear that the rule ofprima facie evidence set out inSection 2 ofHouse Bill 403 does not infringe the right oftrial byjury. Floerk.b State, s.

The issue of a specific intent to defraud is, inthe final analysis, a question offact for the determination of ajury, after full consideration of all the facts inthe case. Itis undisputed, however, that the employment of aprima facie rule of evidence in acriminal prosecution does not operate to deprive thejury 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 ofHouse Bill 403 is not a conclusive one, but is rebuttable. It does not operate to shift the burden ofproof upon the defendant. ~Thepresumption of innocence still remains with the defend,ant, but along with such presumption of innocence, thejury is entitled to consider the presumption under the statute as to knowledge of insufficient funds and intent to defraud. Itis still the prerogative of the trial jury to ascertain, as a question offact, 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 aprima facie evidence **rule** is succinctly stated inFloeck v. State, s, inthe following language:

“The object ofthis provision was not **merely** to render such evidence admissible, for, without the aid of **the ’** **statute,** itmight have been received, although further evidence to show intent would have been necessary. Neither is itmad,e conclusive proof of suchHon. JohnR. Lee, page 8 (Vi1428)

intent, but merely presumptive evidence, and as such proper for the consideration ofthejury, in connection with the other evidence inthe case

. . . . Itis merely proof ofthe case, upon which thejury **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 aprosecution ofthis nature renders itnot an unreasonable exercise ofthe legislative power to prescribe **rules** of evidence in criminal cases, andthus we believe that this character of evidence may be resorted to in order to establish aprima 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 ofthe offense. Itis obvious from the very nature ofthe offense here involved that in most cases itwould be extremely difficult, ifnot impossible, to establish proof ofthe requisite knowledge and intent by means of subjective evidence as to the state ofmind ofthe drawer. These facts, therefore, must be determined primarily from the circumstances surrounding the offense, Itis avalid exercise of the legislative power to prescribe a rule ofprima facie proof based upon reasonable inferences from. established facts. Floeck v. State, supra. Inregard to the presumption created by Section 2ofHouse G 403, there is a rational connection between the facts which **must** be proved andthe 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, Insuch event, the statutory presumption would not attach. Onthe other hand, a contrary **course** of conduct by the drawer upon notification ofthe nonpayment ofthe check would be indicative of his bad faith indrawing the check, Consequently, it is our opinion that the creation ofthis presumption
was not an unreasonable exercise oflegislative power.

For the foregoing reasons, it is our opinion that Section 2 ofHouse Bill 403, inprescribing aprima facie rule ofevidence of intent to defraud in aid of aprosecution under the act, is a valid and constitutional exercise ofthe legislative power to establish rules of evidence in criminal cases.

Nor dowe deem the case of Colin v. State, supra, to beHOPI, John R. Lee, page 9 (V-1428)

authority to the contrary. The Colin case does not deny the power ofthe Legislature to prescribe-a facie rule of evidence in aid ofthe prosecution ofthe offense ofpassing aworthless check. We conceive that the holding ofthe court inthat case was limited to and based solely upon the sufficiency ofthe evidence to support a conviction for the offense charged. Und.er the opinion ofthe Colin case, the court held only that, in aprosecution under the old hot check law, evidence which merely showed that abad check was given inpayment **of** apre-existing indebtedness, without the presence **of** accompanying facts, was insufficient to establish the intent to defraud which is essential to a violation ofthe law.

Inits opinion inthe Colin case, the Court of Criminal Appeals stated:

*The question next arising is as towhether or not the evidence establishes an intent to defraud where the only thing inevidence is that the check was given for a pre-existing indebtedness. Inconstruing statutes ofthis nature the courts of various states are in conflict. Some
cases hold that a set of circumstances may be presented inwhich it is shown that, even though the check was given for apre-existing indebtedness, there may be shown
an intent to defraud by reason ofthe presence of accompanying facts. Other cases hold, as amatter of law that where the only thing that the evidence ~shows is that the check was given for apre-existing indebtedness there is no intent to defraud, Other cases hold, as amatter of law, that an intent to defraud is shown, though the check
was given for apre-existing indebtedness.”
After reviewing the decisions from other jurisdictions in support ofthe 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 anaccdunt was paid by
abad check does not show an intent to defraud. WeHon. JohnR. Lee, page IO (V-1428)

think ajury would be warranted in:finding **an ’** **%tent ’** **.tO** defraud under the circumstances shown inthe Lowenstein case from Ohio.

. . . “Under the facts ofthis case itwould seem that there was no inten,tto defraud shown because the evi,- dence **merely** shows that the check was given for a **pre** existing indebtedness.

w

. . . ”

. . . Itis not to be understood that we are holding that under no circumstances could the statute be violated by giving abad check for apre-existing debt. **Facts** might be present which would show an intent to defraud in giving such acheck, but no such facts are here present.” Although the decision ofthe court in ruling upon the sufficiency ofthe evidence had the practical effect of rendering useless the prima facie evi,dence provision as an aid to aprosecution under the old hot check law..where the:check tias.for. apre-existing(dcbt,the **court** did not, in any **measure,** inhibit or limit the const.itutional authority ofthe Legislature to establish or change the rules of evidence. Inthis respect the Colin case differs from Mayes v. State. There is adistinction betwxeclaring a legislative enactment invalid and unconstitutional and holding that the evidence, in aparticular case, is insufficient to establish an essential elemem of an offense under the law, Inthe one case, the decision operates as a judicial ascertainment ofthe limitations ofthe legislative authority upon some specific constitutional ground, thereby offering some guide or criterion to the future powers and prerogatives ofthe Legislature. On the other hand, adecision ruling upon the suffi,ciency ofthe evidence tends only to determine the basic or mi.nimum standard ofproof 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 ofthe minimum standard required byjudicial precedent, the sufficiency ofthe evidence to establish the essential element must of necessity be decided primarily upon the merits ofthe singular facts and circumstances ofthe new prosecution.

Thus, we are convinced that aprosecution brought underHon. JohnR. Lee, page 11 (V-1428)

the new hot check law would not present an analogous fact situation to that which existed inthe Colin case. For should the prosecution seek to utilize the prima facie rule of evid,ence ofSection 2 ofHouse Bill 403, the proof offered by the State must not only establish the nonpayment ofthe worthless check, but must ofnecessity further reveal evidence ofthe notification ofthe nonpayment ofthe check to the drawer, in addition to evidence that the drawer did not make the check good within aten-day period. This additional evidence which is required to be shown prior to the operation ofthe prima facie rule exceeds the minimum standard ofproof 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 ofthe additional matters ofproof which must be offered by the State in order to invoke the opera’.::t::. ofthe statutory presumption. ,litis our opinion tnat the decision ir, Colin v. State, supra, would no? ac6 as ariullification ofthe present prima facie evidence rule inSection 2 ofHouse Bill 403.

The case ofState v. Lowenstein, 109 Ohio St. 393, 142 N. E. 897 (1924), upon which the court inthe Colin case placed great reliance. tends to support our position inthis matter. Under the facts of the Ohio case, a Mrs. McCarthy was employed to make dresses ft.-rLowenstein. At the end of aweek’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** ofthe nonpayment ofthe worthless check, Lowen- ?+ei.nstated that hewould make the check good. Tlz .Irial court directed a verdict for the defend,ant on the ground zhat inno case whr.te a chi,ck is given for apast 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 apast consideration, but the prima facie case could be rebutted. Itwas pomted out, however, that the question whether the prima tacie case had been successfully established or rebutted was for the determination of thejury and should not have been decided by the trial judge. Inits opinion the court stated:

‘The sole question inthis case is this: Does the giving of a check drawn on abank wherein there are insufficient funds to pay the same, when the check is given for apast consideration, constitute aprima facieHon. JohnR. Lee, page 12 (v-1428)

violation of section 710-116 oftbe 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 ofwhich is refused by the drawce. shall be prima facie evidence ofintent 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 inno case where a check is given for apast consideration can intent to defraud exist, and that the prima facie evidence of intent to defraud, which, under the statute, exists when,payment ofthe check is refused by the drawee, is rebutted when it is shown:that the check is given for apast consideration.

-*

. .

‘If rebutted, the presumption must be rebutted by something inthe nature ofthe act of giving a ‘cold check’ for apast consideration, which establishes enough of good faith to counteract the presumption of fraud,ulent **Went** specifically **raised** by the statute,
Y l .. “When inpayment of apast 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 ofthe 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 ofthe insufficiency of funds onthe same plane asHon. JohnR. Lee, page 13 (V-1428)

intent to defraud, and thtrsmakes proof of such knowledge evidence ef Mert to &fraud.

‘The fact of knowledge cannot be determined until evidence is taken 

### upoatbat 

### point Certainly it cannot be de,termined. on a stoiement such as was given by the proseeutur inthhlacase,. Intent to defraud and knowledge ofthe iasuffi&mcy ofthe fund are questions offact, te be determined on all the evidence by thejury.

. . .

“It is not the holding **mf**this court that the issue of such a check for apast-due obligation is conclusive evidence of an intent to d,efraud. Itis aprima facie evidence only. and **miy** be rebutted inthe course of the trial. The court, however, does heId that aprima 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 inthe Lowenstein case was bottomed upon a statute very similar to the present Texas statute. With the exception ofthe ten days’ notice of nonpayment provision, the prima facie evidence of intent to defraud sections are almost identical in language. As inthe Colin case, the deci.aion’in the Lowenstein case rested upon the sufficiency ofthe evidence to establish the essential intent to defraud, and,the 

### court held that proof ofnonpayment ofthe check was sufficient to establish aprima facie case calling for a jury determination on the question of intent. The additional requirement inthe Texas statute for proof ofthe drawer’s failure to make the check good,furnishes an even stronger basis for the pres~umption offraudulent intent than was present inthe Ohio statute.

The crime of uttering and passing aworthless check given inpayment of apre-existing debt was first introduced into the law ofthis State in 1939 by the enactment ofArticle 567b. Itwas created to meet a situation different from’ that covered by the offense of swindling or obtaining property under false pretense as defined inArticle 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’ inpayment ofpreviously incurred obligations. Itwas pointed out in State v. Lowenstein, supra,Hon. John R. Lee, page I,4 (V-1428)

that the purpose of a statute ofthis nature is to protect the credit intercourse ofthe community -- ‘to protect business men all
over the state, to protect commercial life; about 90per cent of the commercial work **of** the world being done on credit,. The exigencies oftrade, commerce, and,banking have necessitated the creation of a crime ofthis nature and the adoption ofne~wrules of evidence for the establishment ofproof ofits commission. As
so aptly expressed inthe Lowenstein case, the statutory presumption of fraudulent intent arising from the giving of aworthless check for apast obligation is not an unreasonable onebfor why would the drawer ofthe check so act, unless itwas because he expected to deceive or to gain an advantage 7

Inthe Colincase, the Court of Criminal Appeals was of the opinion that *ajury would be warranted in finding an intent to defraud under the circumstances shown inthe Lowenstein case from Ohio.. Itis our conception that afact situation arising under the new hot check law would approach circumstances similar to those present inthe Ohio case. Inthat case, when the check was returned for insufficient funds, the payee notified the drawer of such nonpayment, atwhich time the drawer stated that he would make the check good. The prima facie rule inHouse Bill 403 contemplates that apayee, 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 inpassing the worthless check. No facts of this nature were present inthe Colin case. From our study ofthe language inthe Colin case, we suggest that the Texas court would sustain the suffizy of such evidence to establish prima facie proof ofthe essential intent to defraud.

Your remaining two questions concern the necessity of giving the ten days’ notice of nonpayment ofthe check to the drawer,
as provided inSection 2 ofHouse Bill 403, as aprerequisite to a prosecution under the act.

We are in agreement with the conclusions st~atedinyour brief tothe effect that aprosecution may he brought under the new hot check law without giving the ten days’ notice as provided inthe statute. As you have so ably stated, itwas the primary purpose of the Legislature in including aprima facie evidence provision in the new law to assist the prosecution inthose cases inwhich the other evidence might be insufficient or unavailable to establish the,. .

HOG JohnR. Lee, page 15 (V-1428)

commission ofthe offense or inproving some essential element thereof. This statutory presumption is, in a sense, merely a means of “bridging the gap” in situations wherein it is difficult, ifnot impossible, for the prosecution to adduce subjective evidence as to certain matters not ordinarily capable **of** proof by other evidence. The employment ofthe statutory presumption, however, is not compulsory or mandatory upon the State in every such prosecution, but, as inthe case of any evidentiary rule, the State may choose to submit evidence based. upon such rule, as in its discretion is deemed expedient andproper. 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 ofthe prima facie rule of evidence inSection 2.

Inthe 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 ofpresentment 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 ofthe 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 ofthe check after presentation for payment.” Upon the same authority and for like re,ason, it is our further opinion that aprosecution may be initiated without the ten days’ notice of nonpayment ofthe check, in asituation where the worthless check is given inpayment of apre-existing indebtedness, but where other circumstances are present to sufficiently establish the necessary intent to defraud.

SUMMARY
Section 2 ofArticle 567b, V.P.C., as amended by House Bill 403, Acts 52nd Leg., R.S. 1951, ch. 305, pa 496, inprescribing a rule ofprima facie evidence ofHon. John R. Lee, page 16 (V-1428)

intent to defraud in aid of aprosecution for passing a worthless check is valid and constitutional.
Where a chgck is gi,ven inpayment of apre-existing debt, the failure ofthe drawer to pay the holder the amount ofthe check within ten days titer notice ofits nonpayment by the drawee is prima facie evid,ence of intent to defraud
onthe part ofthe drawer.
The ten days’ notice to the drawer of nonpayment of
aworthless check, as provided inSection 2 ofHouse Bill 403, is not aprerequisite to aprosecution 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